Wednesday, July 09, 2008

What is NEPA For Today?—The Sonar Case Part 3

Like many of our disruptions of the Earth, high energy “active” sonar has enabled us to do seemingly miraculous things like locate and track a very distant (quiet) submarine. The trouble is always what it costs to do these things. Researchers have drawn causal connections between active sonar and serious harms to different sea creatures, especially beaked whales. These connections have firmed up so much over the last few years that even the U.S. Navy institutionalized a layer of review in (most) peace-time uses of active sonar in an effort to minimize the damage. But who is to say when lots of disruption and damage become too much?

In the NEPA case now before the Supreme Court, Winter v. Natural Resources Defense Council, it looks like the usual suspects will once again have that question hashed out for them. (The usual suspects are the administration v. the lower ranks of its agencies, the Ninth Circuit v. SCOTUS, the states, and perhaps Verbal Kint.) But in this third post on the case, I argue that their question is becoming a neurotic obsession that is now crowding out other, more important questions these cases are raising. Most especially, what is a statute like NEPA really for today given how much society has changed since it was enacted? This question is getting virtually no attention from the federal courts that, as an institution, seem bent on avoiding real analysis of statutory purpose even while a thing like a statute can hardly be made intelligible without at least some purpose or point being attributed to it.

To recap, the Navy had planned a long series of active sonar exercises. It determined in an “environmental assessment” (EA)—allowed under the NEPA guidelines—that by observing its own mitigation measures during its exercises, it would not cause a “significant impact” on the environment. (This is a common practice.) Some number of animals would be harmed but, in the grand scheme of things, the overall “effect” would be relatively minor, at least according to the Navy’s models. In doing so, the agency—the Navy is an “agency”—expected to slip NEPA’s requirement for a full environmental impact statement (EIS) with what is known as a “mitigated FONSI”: a Finding Of No Significant Impact that uses mitigation measures to drop the action below the significance threshold.

The Natural Resources Defense Council convinced a federal court that this got NEPA wrong. Indeed, they convinced two of them: District Judge Cooper in Los Angeles and a Ninth Circuit panel which took yet another opportunity to apply its own somewhat unique NEPA jurisprudence—most especially National Parks and Conservation Assn. v. Babbitt 241 F.3d 722 (9th Cir. 2001) (NPCA). Then the Solicitor General convinced the Supreme Court to hear the Navy’s appeal.

NPCA and other Ninth Circuit precedents have been uniquely skeptical of agency decisions to forego EIS’s. These cases have made it particularly hard for agencies to avoid EISs in finding that the likely impacts of an action are unknown or unquantifiable. Conversely, precedents in the D.C. Circuit and most of the regional circuits have tended to view such uses of uncertainty within a FONSI quite deferentially. In NPCA and a series of cases involving National Forest Management Act land planning, the Ninth Circuit has been spinning a web of barriers around the FONSI ‘exit’ from NEPA. NPCA held that “the absence of currently available information does not excuse the [agency] from preparing an EIS when there is a reasonable possibility that such information can be obtained in connection with the preparatory process.” 241 F.3d at 737. Certain panels of the Ninth Circuit now cite it routinely, most notably last year’s Center for Biological Diversity v. NHTSA, 508 F.3d 508 (9th Cir. 2007) (striking down a weak fuel economy rule for SUVs and light trucks because, among other things, NHTSA failed to prepare an EIS).

No to put too fine a point on it, but this is a fundamental dimension of modern conservation. Climate change has alerted much of the general public to this reality, but for conservationists it is like the air we breathe. Jarring uncertainties are ubiquitous in forecasting environmental futures. For example, in the Sonar Case, how well any of the parties’ proposed “mitigation” measures will actually work is deeply uncertain. It might, therefore, seem curious that only one Court of Appeal has a rule quite like NPCA’s. The likely reason is that it has virtually no connection to NEPA’s text or to the NEPA guidelines. What it does have going for it is a fair bit of common sense as an intuitive extension of NEPA’s deliberative ethos—at least if you believe agencies are predisposed to avoiding deliberation in public.

Still, I can’t help but wonder whether the sonar battle was the right one to fight at all. Isn’t it extraordinary for the President of the United States to exercise authority like what he utilized in this case—exempting the sonar exercises from complying with the CZMA? Isn’t it extraordinary for CEQ to jump into a fight between an agency and environmental plaintiffs and call a district court’s injunction the “emergency circumstances” justifying an exemption from NEPA? And isn’t it extraordinary that, during a time of war and escalating defense preparedness beyond even the two theatres of battle, the military is giving any thought at all to beaked whales and other sea life as it readies its forces? So I wonder if our priorities are a little turned around here.

When SCOTUS reverses in Winter, it will have any of a number of grounds on which to do so—most of which are much narrower than those described in my posts. (The SG’s petition focused on the “reasonableness” of CEQ’s interpretation of the “emergency circumstances” guideline and on the standard for granting a preliminary injunction.) And NRDC will no doubt point to the political leanings of the judges in the majority, acquitting itself of any blame for what may be a very bitter NEPA pill.

But these fights all combine to do a phenomenal job of hiding the prior and, in my view, far more important, question: What is NEPA for today, almost 40 years after its enactment? Politically, it has become the un-amendable statute. The last (right-wing) congressman who staked his fortunes on deep-sixing NEPA lost handily in the 2006 elections (in a conservative district). The few (lefty) academics who have pointed out how NEPA’s deliberative ethos could be enhanced by focusing less on EIS’s and more on FONSI’s, follow-up, and information management, have been largely ignored outside academia. So all we can look forward to as a Nation-under-NEPA is more mudplay from the usual suspects? That is deeply troubling. In my final post, I’ll try to sketch a different future for this conservation icon.

Posted by Jamie Colburn