Posted on January 6, 2012 by Andrew Brown
In recent years, several courts have addressed the issue of what standard a plaintiff must meet to successfully challenge agency action on the ground that it was improperly predetermined in violation of the National Environmental Policy Act (NEPA). Because federal agencies conducting major federal action subject to the requirements of NEPA frequently have a preferred alternative in mind when conducting environmental review, legal challenges based on claims that the agency improperly predetermined the outcome of its NEPA analysis are common. When an agency action is successfully challenged for improper failure to prepare an Environmental Impact Statement (EIS) and the agency reaches the same result upon completion of an EIS, plaintiffs may raise a claim of improper predetermination, contending that the result is essentially a foregone conclusion.
Circuit courts have generally imposed a stringent burden on plaintiffs seeking to prove predetermination in violation of NEPA. Most recently, the Tenth Circuit addressed the appropriate standard for predetermination in Wyoming v. United States Department of Agriculture. In Wyoming, the State of Wyoming challenged a final rule promulgated by the United States Forest Service that prohibited road construction and commercial timber harvesting in inventoried roadless areas of the National Forest System. The State alleged, among other claims, that the Forest Service impermissibly predetermined the outcome of the Roadless Rule proceeding. The Tenth Circuit Court of Appeals reversed the district court, relying on the stringent standard it had set forth in Forest Guardians v. United States Fish & Wildlife. The court noted that “predetermination occurs only when an agency irreversibly and irretrievably commits itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed the environmental analysis….”
The Ninth Circuit adopted a similarly stringent standard. Metcalf v. Daley. In Metcalf, the court found improper predetermination where the agency signed two written agreements binding them to support the proposal under consideration before preparing an Environmental Assessment and Finding of No Significant Impact. The Ninth Circuit held that the agencies had violated NEPA by making an “irreversible and irretrievable commitment of resources” prior to completing the environmental review.
In Forest Guardians, the Tenth Circuit also addressed the question of what evidence should be considered by a court in evaluating whether an agency has improperly predetermined its outcome in violation of NEPA. The court concluded that review of evidence outside the environmental review itself is proper where there is a claim of predetermination. In reaching this conclusion, the Court expressly rejected the dicta of the Fourth Circuit in National Audubon Society v. Department of the Navy, stating that a reviewing court “should generally restrict its inquiry to the objective adequacy of the EIS . . . [and] should not conduct far flung investigations into the subjective intent of the agency.” The Fourth Circuit reasoned that “[w]here an agency has merely engaged in post hoc rationalizations, there will be evidence of this in its failure to comprehensively investigate the environmental impact of its actions and acknowledge their consequences.” Because such evidence was absent, the Fourth Circuit affirmed the district court’s conclusion that the Navy had failed to undertake the hard look at environmental consequences that NEPA requires.
In light of these decisions, plaintiffs alleging that an agency has improperly predetermined the outcome of its environmental review in violation of NEPA face an uphill battle in establishing liability. The imposition of such a stringent burden is well supported by the language of the Council for Environmental Quality regulations implementing NEPA, see 40 C.F.R. § 1502.14(e), as well as by Supreme Court precedent holding that there must be a strong showing of bad faith or improper behavior before inquiry into the mental processes of administrative decision makers may be made. Citizens to Preserve Overton Park, Inc. v. Volpe.