Ninth Circuit Holds That a Project’s NEPA Analysis Need Not Explain Why Its Impact Significance Conclusions Differ from CEQA Analysis of the Same Project; Dissent Perceives Environmental Racism at Work

January 4th, 2022

By: Sam Bacal-Graves



In Ctr. for Cmty. Action & Envtl. Justice v. FAA (9th Cir. Nov. 18, 2021, Nos. 20-70272, 20-70464) ___F.3d___ [2021 U.S. App. LEXIS 34541], the 9th Circuit held that the National Environmental Policy Act (NEPA) does not require an agency to explain why its impact conclusions differed from CEQA analysis of the same project, nor is an Environmental Impact Statement (EIS) required if they differ. An ardent dissent (J. Rawlinson) highlighted environmental justice issues unexamined by the briefing, and accused the Federal Aviation Administration (FAA) of engaging in environmental racism. The majority also rejected arguments related to the parameters selected by the FAA of the Environmental Assessment (EA) study area as well as the analyses of cumulative, transportation, and air quality impacts. These NEPA-specific issues are not discussed further in this summary.

The case centered on a proposal to develop an Amazon air cargo facility at the San Bernardino Airport (Project). The FAA was required to review the Project under its own statutory scheme, triggering NEPA. The FAA chose to prepare an EA and a finding of no significant impact in compliance with NEPA. Meanwhile, an EIR had already been prepared and certified. In contrast to the FAA’s NEPA findings, the EIR concluded that the Project could result in significant impacts on air quality, greenhouse gas emissions, and noise.

The State of California, environmental organizations, and others (Petitioners) filed suit challenging the FAA’s approval under NEPA. California argued that the FAA was required to prepare an EIS, in part to evaluate whether the impacts identified in the EIR were potentially significant under NEPA as well. The majority disagreed.

Petitioners did not argue that NEPA environmental review must reach the same conclusions as CEQA analysis. Rather, Petitioners alleged that the NEPA analysis was required to explain divergent conclusions. But the majority noted that federal agencies are not required to rely on the conclusions from CEQA documents, as NEPA and CEQA have different standards and different requirements. Further, the Court acknowledged that the obligations imposed by CEQA may exceed those required by NEPA, and that, rather than simply relying on the EIR’s conclusions, Petitioners must identify specific findings that raise substantial questions of the Project’s significant impacts on the environment. The Court found that the air quality, greenhouse gas emissions, and noise impact issues identified by the EIR did not raise any substantial questions about the EA’s conclusions.

Judge Rawlinson dissented from the majority opinion to condemn what the judge described as “environmental racism” on the part of the FAA. The dissent noted that the area surrounding the Project was one of the most polluted corridors in the country with among the highest asthma rates in California. Further, the dissent asserted that it was “not a coincidence” that the Project site was located in an area overwhelmingly populated by people of color and persons living below the poverty level. On the merits, the dissent surveyed the environmental review and concluded that the FAA had failed to take a “hard look” at the impacts, in part due to the discrepancies with the EIR’s conclusions.

The third judge on the panel, writing in concurrence with the majority, acknowledged that reasonable jurists could disagree on the merits of the case, but criticized the dissent for injecting the issue of racism into the case despite it not being raised in briefing. The concurrence further criticized the dissenting opinion for unfairly accusing FAA and Department of Justice employees of condoning racism. Responding in footnotes, the dissent bristled at being lectured on when, where, and how to identify racial injustice, and offered her mother’s refrain to similarly indignant federal employees involved in the EA’s preparation: “Only hit dogs holler.”

Key Point

  • A federal agency is not required to explain why its NEPA conclusions are different from those reached in CEQA analysis of a project, so long as its conclusions are adequately supported.



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