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July 2012

Lions, Tigers, and Fish, Oh My! The Importance of Analyzing Environmental Impacts on All Species

Pacific Rivers Council v. United States Forest Service

____ F.3d ____, 2012 U.S. App. LEXIS 12553 (9th Cir. 2012)

The United States Court of Appeals for the Ninth Circuit recently issued an opinion which highlights the importance of being thorough when creating an Environmental Impact Statement (“EIS”). The issue before the court was whether the United States Forest Service’s 2004 EIS for the Sierra Nevada Mountains was adequate for fish and amphibians. In an opinion written by Judge Fletcher, the Ninth Circuit held that: (1) Pacific Rivers had Article III standing to challenge the EIS, (2) the Forest Service’s analysis of fish in the 2004 EIS did not comply with the National Environmental Protection Act (“NEPA”), and (3) the Forest Service’s analysis of amphibians in the 2004 EIS did comply with NEPA.

The national forests of the Sierras are managed under eleven Forest Plans. In 2001, the Forest Service issued a Final EIS (“2001 EIS”) recommending amendments to these Forest Plans (the “2001 Framework”), intended in part to conserve and repair the Sierras’ aquatic and riparian ecosystems. A few years later, in 2004, the Forest Service issued a Supplemental EIS (“2004 EIS”) recommending significant changes to the 2001 Framework (the “2004 Framework”). Pacific Rivers challenged the 2004 Framework as inconsistent with the NEPA and the Administrative Procedure Act (“APA”). The essence of Pacific Rivers’ complaint was that the 2004 EIS did not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians.

In concluding that Pacific Rivers had Article III standing, the court reasoned that there was “a concrete connection between the interests of Pacific Rivers’ members in enjoying the forests of the Sierras and the effect of the 2004 Framework.” The court distinguished this from previous cases where environmental organizations lacked standing by finding that “[t]here is little doubt that members of Pacific Rivers will come into contact with affected areas, and that the implementation of the 2004 Framework will affect their continued use and enjoyment of the forests.”

The court showed its disdain for the 2004 EIS early on, opining that certain parts contained “more than the usual amount of obfuscating bureaucratese.” The court found it necessary to translate portions of the EIS “into standard English” and even went so far as to give the following admonishment: “We remind the Forest Service: ‘Environmental impact statements shall be written in plain language.’”

NEPA requires that agencies take a “hard look” at the environmental consequences of a proposed plan so long as it is “reasonably possible” to do so. Although the Forest Service’s 2004 Framework authorized substantially more environment-altering activities than the 2001 Framework, the 2004 EIS contained no analysis of additional or different environmental consequences for fish — it merely referred to the analysis contained in the 2001 EIS. The court reasoned that the 64 pages of detailed analysis of environmental consequences on individual fish species contained in the 2001 EIS showed that such an analysis of the 2004 Framework was “reasonably possible.” Therefore, the court held that the failure of the 2004 EIS to provide any analysis of the environmental impact on fish was a failure to comply with the requirements of NEPA.

The court was also dismayed by the EIS’s lack of explanation of why it was not “reasonably possible” to perform some level of analysis of the 2004 Framework’s impact on fish. If it had contained such an explanation, the court explained, the Forest Service “might have been able to show that it [was] reasonable to postpone such analysis until it [made] a site-specific proposal.”

The court additionally found that the 2004 EIS’s incorporation by reference of two Biological Assessments failed to satisfy the “hard look” requirement of NEPA. The court explained that the “[d]iscussion of significant environmental impacts must appear in the text of an EIS.” This ensures that the EIS serves its purpose, which is to “inform decision makers and the general public of the environmental consequences of a proposed federal action.”

In “stark contrast” to its “complete lack” of analysis of fish, the 2004 EIS contained an “extensive analysis” of the 2004 Framework’s impact on individual amphibians, as well as a discussion of strategies to minimize such impact, which the court found sufficient to meet the requirements of NEPA. Pacific Rivers also contested the 2004 EIS’s delegation of significant decision-making authority to local managers of amphibian habitats, but the court was satisfied by the Forest Service’s repeated commitment in the EIS to comply with NEPA for site-specific projects proposed under the 2004 Framework.

This decision serves as an important reminder that a thorough, detailed, and “plain language” analysis of the environmental impacts on all potentially-affected species is a crucial component of any EIS. The cost necessary to complete such an analysis is a worthwhile investment in ensuring a watertight EIS and avoiding costly litigation such as that seen above.

Environmental/Toxic Tort

Brandon D. Saxon

Environmental/Toxic Tort