Environmental Plaintiffs Do Not Need to Wait for Environmental Damage to Occur Before Challenging NEPA Compliance

May 25th, 2012

By: Thomas Law Group



In Friends of the River v. United State Army Corps of Engineers, 2012 U.S. Dist. LEXIS 59405, the United States Army Corps of Engineers (Corps) adopted several documents establishing “mandatory vegetation-management standards for levees.”  Friends of the River, Defenders of Wildlife, and Center for Biological Diversity (Plaintiffs) filed suit to challenge the Corps’ procedural process.  Plaintiffs alleged that the Corps’ actions consisted of final agency actions, major federal actions, and rule-making, thus requiring compliance with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA).  Plaintiffs claimed the Corps violated all three statutes.  The Corps responded with a motion to dismiss for lack of subject matter jurisdiction, which the US District Court for the Eastern District of California denied.

The Corps first argued that the court lacked jurisdiction because their actions were not considered a reviewable final agency action.  The court explained that a final agency action marks consummation of the agency’s decision-making, determines rights or obligations, or is an action from which legal consequences will flow.  However, despite the compelling arguments presented by both sides, the court stated that it could not rule on this issue until it had reviewed the whole administrative record.  Due to the lack of the full administrative record, the court also declined to rule on the issue of whether the Corps properly complied with the APA before adopting its new rules.

The Corps next argued that Plaintiffs’ programmatic challenges were too broad and should thus be dismissed.  The court explained that the APA does not allow “programmatic” challenges, but instead requires a challenge to a specific final agency action which has “an actual or immediate threatened effect” (Lujan v. Nat’l Wildlife Fed’n).  However, in this case, the court found that Plaintiffs’ programmatic challenges were cognizable under all the statutes of APA, NEPA, and ESA.

The Corps also alleged that Plaintiffs’ claims lacked ripeness and that Plaintiffs themselves lacked standing.  In assessing ripeness, the court explained that it considers (1) whether delayed review would cause hardship to the plaintiffs, (2) whether judicial intervention would inappropriately interfere with further administrative action, and (3) whether courts would benefit from further factual development of the issues presented (Ohio Forestry Ass’n, Inc. v. Sierra Club).  Plaintiffs claimed procedural injuries due to the Corps’ alleged failure to undertake timely NEPA and ESA review.  The court followed the Ninth Circuit and held that environmental plaintiffs do not need to wait for environmental damage to occur to challenge an agency’s NEPA compliance; therefore, Plaintiffs’ claims were ripe for review.  In order to prove standing, Plaintiffs must show that they suffered a cognizable injury in fact, that there is causation between the Corps’ actions and their injury, and that the injury is reasonably redressable by the court.  The court held since Plaintiffs’ alleged injury was “geographically specific, was caused by the regulations at issue, and was imminent” (Ctr. For Biological Diversity v. Kempthorne), the types of harm and injury Plaintiffs alleged were cognizable for purposes of sanding.  The court further explained that to satisfy causation and redressability for procedural injuries, Plaintiffs did not need to show that compliance with APA, ESA, and NEPA will ultimately redress the injury, but rather that compliance with the statutes may address the injuries.  Therefore, not only were Plaintiffs’ claims ripe but Plaintiffs had the requisite standing.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.