NEPA

Judicial Deference – Issues of Scientific Uncertainty. The Ninth Circuit addressed the role of courts in reviewing agency decisions on issues involving scientific uncertainty. The court emphasized the importance of judicial deference to agency decisions:

“In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies …, and orders the agency to explain every possible scientific uncertainty…. [T]his is not a proper role for a federal appellate court. But Lands Council’s arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.”
“But none of NEPA’s statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS. Thus, we hold that to the extent our case law suggests that a NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the EIS, we have erred…. After all, to require the Forest Service to affirmatively present every uncertainty in its EIS would be an onerous requirement, given that experts in every scientific field routinely disagree; such a requirement might inadvertently prevent the Forest Service from acting due to the burden it would impose.”
“We reaffirm, however, that the Forest Service must acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist. This requirement comports with NEPA’s regulations, as well as with interpretations of NEPA offered by the Supreme Court and other circuits. … The Forest Service does not, however, have the burden to anticipate questions that are not necessary to its analysis, or to respond to uncertainties that are not reasonably supported by any scientific authority.” Evaluation of Impacts – Methodology. The Ninth Circuit held that the Forest Service adequately addressed the scientific uncertainties regarding the potential negative impacts of selective logging on habitat. The plaintiffs contended that the Forest Service violated NEPA by failing to discuss two scientific articles regarding the treatment of old-growth habitat. The court rejected this argument, finding that the omitted articles did not raise uncertainties about the project’s methodology, but in fact supported the project’s treatment of old-growth habitat. The court also noted that the Forest Service cited adequate evidence showing that the project would improve the habitat of old-growth species. The court concluded this discussion by noting that an agency is required to explain its methodology, but isn’t required to use the best one: “Though the Forest Service must explain the methodology it used for its habitat suitability analysis, which the Forest Service did here, NEPA does not require us to decide whether an [EIS] is based on the best scientific methodology available.”

Cumulative Impacts – Scope of Study Area. The District Court held that the Forest Service adequately considered cumulative impacts on the grizzly bear, fisheries and water quality, and soil quality. With respect to the grizzly bear, the key issue was the size of the cumulative impacts study area. The District Court concluded that the study area was “appropriately sized to allow for meaningful consideration of the cumulative effects of the project.” The court rejected the plaintiffs’ argument that the Forest Service should have considered the entire area known to be “occupied” by the grizzly bear, stating that “such a broad standard is not required.” In its July 2008 decision, the Ninth Circuit Court of Appeals affirmed the decision of the District Court, but did not specifically discuss the issue of cumulative impacts.

Litigation Procedure

Preliminary Injunction. The Ninth Circuit upheld the District Court’s denial of the plaintiffs’ request for a preliminary injunction, holding that the plaintiffs did not demonstrate a likelihood of success on the merits of their claims and that the plaintiffs failed to show irreparable harm. The court reasoned that the plaintiffs did not point to irreparable harm “beyond the general allegation that environmental harm is irreparable,” which was insufficient to satisfy the requirement that a party moving for a preliminary injunction show that irreparable harm will result if the injunction is not granted. The court also stated that it would not presume that in all environmental cases, irreparable harm will outweigh other considerations. The court further reasoned that the plaintiffs failed to show that the balance of hardships tipped in their favor. The court declined to adopt a rule that any potential environmental injury automatically merits an injunction, particularly where the plaintiff is unlikely to succeed on the merits of their claims.