Thursday, November 13, 2008

Habeas Porpoise: The Future of NEPA in a Bottle

The lone commenter on my ‘future of NEPA’ posts on Winter v. NRDC suggested that I call the case by this title. So be it. The Court at least had the good graces yesterday not to actively belittle NRDC’s concerns (the effects of very powerful sonar on marine mammals, especially beaked whales). But it did place them squarely behind the urgencies of preparing for war. To quote the first line of the majority opinion (and George Washington): “To be prepared for war is one of the most effectual means of preserving peace.”

And the Court provided a sort of answer to the questions I raised in my posts this summer (and underscored the pith of the commenter’s suggestion). My principal question was this: can we expect nothing more of NEPA in the future than more mudplay from the usual NEPA suspects? If so, shouldn’t that be distressing to all of us? In my view, this icon of conservation in the US is heading in that direction. It is becoming, in cases like Winter, little more than an instrument of delay and obstructionism.

The Court’s answer to my question? Pretty much, at least as long as the usual suspects bring us cases like Winter. The majority (Roberts, Scalia, Thomas, Kennedy, Alito and for most of the way, Breyer & Stevens) resolved Winter by vacating the district court’s preliminary injunction on the traditional three factor test for a PI. Of course, that allowed the majority to reiterate several times that it was not dealing with the underlying merits of the NEPA claims -- a protest that I find disingenuous at best given the fact that the first two factors are obviously about the merits of the underlying claim.

What it came down to for the majority was this: NRDC’s most serious possible injury without a PI enjoining the Navy from its exercises absent a full environmental impact statement would be “harm to an unknown number of marine mammals,” while the Navy’s would be having to “deploy an inadequately trained anti-submarine force[,] thereby jeopardize[ing] the safety of the fleet.” And when that view of your case is backed up by an explicit declaration of the President himself—as this one was—I put your chances of actually protecting whales (or porpoises) at or around the bottom of the ocean.

This summer, I described NEPA as having settled into the following rut:

one of our marquee environmental statutes, NEPA, has made our perennial tension [between minimizing environmental risks and minimizing the costs of doing so to everyday life] harder and harder to resolve because the statute’s normative core—that the federal government should take a hard look at the possible environmental consequences of its “major actions” before taking them—is all too often being muddled up in a tangled web of Executive Branch maneuvering and posturing. It is almost impossible to say whether NEPA analysis in any given case is going to improve a decision or just delay it and make it more costly for the Treasury to fund. NEPA today has arguably become a very different statute because of how our society has evolved since 1970. But it has also (arguably) become the single best form of leverage against a lame duck President who has shown absolutely no leadership on the environmental challenges of our time and who, instead, seems intent on leaving all of these problems to his unfortunate successor.


I argued that what we really need to start hashing out are, for lack of a better word, the meta-ethics of NEPA. I think we have lost our way on what even constitutes a good outcome under NEPA. What is NEPA’s normative point today? In Winter, the Navy had made a deliberate decision not to complete an EIS before its training exercises. It chose instead to complete an “environmental assessment” and a “finding of no significant impact” (FONSI) that included a detailed plan to control the excess risks to marine mammals created in the exercises. The CEQ NEPA guidelines make room for this (increasingly common) approach to the NEPA process. The Navy clearly “stopped” and “thought” about its effects on the marine environment. And, strategically speaking, agencies usually find a path to shortcut out of NEPA when they want to, whether they’re sued or not. The Navy was clearly intent on not completing a full EIS. If NRDC truly had no better pressure point with which to protect the marine mammals, I fear that their lawyers are running out of good ideas.

It’s probably no secret that, in my view, groups like NRDC need to rethink bringing cases like Winter. Winter is now part of a tradition of SCOTUS precedents that has eviscerated NEPA. What’s worse, the damage that’s being done is so incremental that the public won’t grasp its gravity. If an Obama CEQ wishes to improve NEPA (the Obama campaign said it did not), it’s task is being made all the harder in the hyper-litigious environment that is swallowing the statute. Indeed, under general principles of administrative law, the more precedents there are construing NEPA’s legislative text “authoritatively,” the less maneuvering room CEQ will have to rework its guidelines and update NEPA for the 21st century.

Posted by Jamie Colburn