The environmentalists had a second claim: that the transportation program was conducted in violation of the National Environmental Policy Act (NEPA). They claimed that an environmental study done pursuant to the Act, the 1993 Supplemental Environmental Impact statement (SEIS), was inadequate.
The SEIS was a peculiar document which studied different kinds of flow increases as a primary salmon recovery policy for the federal government despite the absence of evidence that flow increases would have any effect on salmon survival (see Chapter 7). Given the politically-driven policy choice to release water from reservoirs, no alternatives to flow augmentation were studied.
We privately agreed with the environmentalists that it would be have been useful to have had a comparison of all the alternatives for recovering salmon in a single environmental analysis. Such a document could have quickly educated decisionmakers that transportation worked, flow augmentation didnt, and there were far fewer environmental side effects from transportation.
Judge Marsh decided that transportation of salmon was sufficiently connected to the question of changing flows that the two should have been considered in the same SEIS, and thus held that the Corps of Engineers had violated NEPA. On June 1, 1995, the Ninth Circuit reversed Judge Marsh. The three judges refused to agree that transportation and flow augmentation were "connected actions" that had to be considered in the same EIS.
"On this rationale", they explained, "measures involving harvest limits, hatchery releases, and habitat maintenance are also interdependent parts of every action taken to benefit the salmon."27 The Court could just as easily have decided that these were all "connected actions" because they fit precisely within the definition of the NEPA regulations: they were interdependent parts of a larger action"saving salmon"and depend on the larger action for their justification".28
Then the Corps of Engineers would have had to compare the environmental effects of all the different ways of trying to produce salmon. For the first time, there would have been a document that permitted a rational comparison of the environmental costs and benefits of all salmon recovery alternatives. As of 1997, no one has prepared such a document and no one probably ever will.
Some people think that the requirement of analyzing connected actions or alternatives is pointless. But the law only requires this sort of analysis for major federal actions significantly affecting the human environment. There is real benefit to pointing out the pros and cons of different ways of meeting the same public policy objectives, rather than letting agencies put blinders on to ignore disfavored alternatives. As the regulations point out, the analysis must provide a clear basis for choice among options by the decisionmakers and the public.29
The whole idea of NEPA is that citizens of the United States can turn to the courts and demand some minimal analysis before major federal action with a significant effect on the human environment. Unfortunately, they cant, at least not unless they are perceived to be on the side of the salmon. The United States Court of Appeals for the Ninth Circuit has repeatedly ruled that the NEPA cannot be used to challenge federal action that the Court deems pro-environmentalordinary citizens lack standing to raise questions about NEPAs application.
And just to shut things down for those people who do have standing, like other government agencies, the Ninth Circuit has decided that the Endangered Species Act trumps NEPA, making it unnecessary for the federal agencies to comply with NEPA when purporting to implement the Endangered Species Act. When Douglas County, Oregon, sued the federal government to require NEPA analysis of the federal decision to designate a substantial part of Douglas County as critical habitat for the spotted owl, the Ninth Circuit found three reasons that the government did not have to comply with NEPA.
According to Judge Pregerson, (1) the Endangered Species Acts procedural requirements were close enough to NEPAs that NEPA need not apply; (2) NEPA analysis was not required because the critical habitat designation would merely preserve the physical environment; and (3) the Endangered Species Act furthered the goals of NEPA without requiring further analysis.30
But Douglas County had provided sworn testimony that the critical habitat designation, by forbidding insect, disease and fire control in the forests, might well cause enormous damage to the environment. NEPA was designed precisely to consider all environmental impacts, not just impacts on a single "species". By allowing the federal government to ignore the broader consequences of its decisionmaking, the Ninth Circuit could be accused of burning the forest to save the owls in it.
Fourteen years earlier, Judge Pregerson had accurately stated the prevailing rule, which is that if two federal statutes apply to a situation, both should be enforced unless they are repugnant to each other.31 Now, however, Judge Pregerson was reluctant to allow Douglas County to enforce NEPAs requirements because he perceived doing so as an obstructionist tactic.32 One of the most frustrating aspects of attempting to enforce environmental laws in the Ninth Circuit is that the Court will bend over backwards to allow the federal government to violate the law if the Court thinks that the violation is a good thing.
27 NRIC v. NMFS, 56 F.3d 1060, 1069 (9th Cir. 1995).
28 40 C.F.R. 1508.25(a)(1).
29 40 C.F.R. 1508.8.
30 Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, ___ U.S. ___.
31 Grindstone Butte Project v. Kleppe, 638 F.2d 100 (9th Cir. 1981)
32 Douglas County, 48 F.3d at 1508.
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