The Protection of Species
Endangered Species Act - Marine Mammals Protection Act - Animal Welfare Act - National Environmental Policy Act
The Endangered Species Act (ESA) of 1973 (16 U.S.C. § 1531 et seq.)
The Endangered Species Act (ESA), enacted in 1973, is a vital U.S. law dedicated to protecting imperiled species and their habitats. It empowers federal agencies to identify and prioritize species at risk, implement conservation measures, and foster collaboration for their recovery, ensuring the preservation of biodiversity for future generations.
The ESA is a federal law, and its first section outlines its intent to protect threatened and endangered fish, wildlife, and plant species, as well as implement plans of recovery for the species (Bower and Neacşu 2018, 244-6). The ESA has been amended multiple times, and in order for a species to be protected under the ESA, it must first be designated as threatened or endangered (Bower and Neacşu 2018, 244). Section 2 of the ESA defines terms used within the statute, like “person”, and “fish and wildlife”, while Section 3 addresses the definition of endangered or threatened species and their habitats (Bower and Neacşu 2018, 247). Sections 6 and 7 of the ESA authorize interagency and interstate cooperation to facilitate the recovery and prevent further harm to endangered species (Bower and Neacşu 2018, 246). Section 8 of the ESA also facilitates coordination between different bodies in the environmental world by providing guidance for implementing international regulations, like the CITES (Convention on International Trade in Endangered Species of Wild Flora and Fauna) guidelines, into domestic US law (Sheikh et. al, 2021). Sections 9 and 10 of the ESA layout prohibited acts and exceptions to those acts, and Section 11 explains penalties and enforcement if prohibitions are violated (Sheikh et. al, 2021). Sections 3 and 11 also address citizen standing and participation in the implementation of the ESA, specifically that “interested persons” can petition for species protection or critical habitat designation (Bower and Neacşu 2018, 251).
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Endangered Species Act was enacted in 1973 to provide ecosystem by protecting species that are listed as threatened or endangered to protect biodiversity. Petitions can be submitted by any interested personel to the Secretary of Interior Secretary of the Interior and the Fish and Wildlife Service to get species listed from endangered to threatened to get protected. Any species can get put on the list if the species are determined that they are any of the following factors: "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.” Under ESA, if a species is listed, it is subject to a host of protective measures designed to conserve the species.
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Link to the case: https://casetext.com/case/palila-v-hawaii-dept-of-land-natural-res
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap35-sec1533
Please note that the following brief was prepared by a student.
Parties: PALILA (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species; SIERRA CLUB; NATIONAL AUDUBON SOCIETY, a non-profit association; HAWAII AUDUBON SOCIETY, a non-profit association; ALAN C. ZIEGLER, Plaintiffs-Appellees, v. HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES; SUSUMO ONO in his capacity as chairman of the Hawaii Board of Land and Natural Resources.
Procedural History: Previously, there was an appeal from the United States District Court for the District of Hawaii in 1986 (Palila III). The plaintiffs were favored in prior court proceedings.
Facts: In November 1986, the district court ruled in favor of the Sierra Club. Palila v. Hawaii Dept. of Land & Natural Resources ("Palila III"). It found that the presence of mouflon sheep "harmed" the Palila, defining "harm" in two ways: (1) the eating habits of the sheep destroyed the mamane woodland and thus caused habitat degradation that could result in extinction; (2) were the mouflon to continue eating the mamane, the woodland would not regenerate and the Palila population would not recover to a point where it could be removed from the Endangered Species list.
Legal Issue: Do the eating habits of the mouflon sheep in Palila territory constitute a “harm” under the Endangered Species Act, thus deeming it a “taking” that significantly modifies the habitat of the Palila and negatively impacts their longevity?
Holding: The court affirmed the judgment in favor of plaintiff environmental groups on their suit against defendant Hawaii Department of Land and Natural Resources. The court found that habitat degradation that could result in extinction constituted "harm" under the Endangered Species Act and that a taking occurred when mouflon sheep were allowed to live in the palila's habitat.
Reasoning: Harm - The Department argues that the district court construed the definition of “harm” too broadly in Palila III since it emphasized a “potential” harm as opposed to an “actual harm. However, the Secretary noted that harm includes not only direct physical injury, but also injury caused by impairment of essential behavior patterns via habitat modification that can have significant and permanent effects on a listed species. Therefore, the DC’s inclusion within the definition of “harm” of habitat destruction that could drive the Palila to extinction falls within the Secretary’s interpretation. The statute says that the overall purpose of the Act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” and the removal of mouflon sheep who have harmful eating habits directly conserves the Palila’s threatened ecosystem. Taking - The House Report (on the Act) said that the “harassment” form of taking would “allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.” In essence, if the “harassment” form of taking could include something as remote as birdwatching, the mouflon sheep’s eating habits preventing any mamane from growing to maturity should most certainly count. Additionally, the Sierra Club’s witnesses showed that the Department’s additional programs as an alternative to removal of the mouflon sheep would not work. Coexistence is not an option, they showed, because the controlling of mouflon density is not the issue, their presence is. And, the growth of the Palila population will continue to be stagnant if they are not removed.
Dissent: None. The district court’s ruling is affirmed.
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In terms of habitat protection, 16 U.S.C § 1533, part of the Endangered Species Act, denotes that if there is an identified "critical habitat" associated with a threatened or endangered species, the habitat should be identified, demarcated, and preserved (Sheikh et. al, 2021). Specifically, the Secretary of the Interior must designate critical habitat concurrently with a protected species “to the maximum extent prudent and determinable” (Sheikh et. al, 2021). Degradation or significant modification of that habitat which leads to deaths or injuries in the protected species qualifies a “take” of the species, and results in corrective legal action (Bower and Neacşu 2018, 274). There are certain instances in which it is considered imprudent to designate a habitat as “critical”, such as if poaching is a problem for a species and designation would indicate to poachers where to find and hunt it, if no areas meet the definition of critical habitat, or if alterations to the protected species’ current habitat would not significantly impact its population (Sheikh et. al, 2021). It is also not permitted to designate land as critical habitat for a species if that land is owned by the Department of Defense (Sheikh et. al, 2021). The loss or alteration of habitat is a factor for listing species as protected, however, the process of critical habitat designation is not necessary to place a species on the threatened or endangered list (Sheikh et. al, 2021).
Works Cited:
Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671
In Alaska Oil & Gas Ass'n v. Pritzker, the Alaska Oil and Gas Association sued the National Marine Fisheries Service's (NMFS) designation of critical habitat for the endangered species of the Arctic bearded seal under the Endangered Species Act. The critical habitat designation covered vast areas of sea ice in the Arctic Ocean. AOGA argued that NMFS's designation was arbitrary and capricious, particularly because the agency failed to use the best available scientific data indicating loss of sea ice affecting the bearded seal species.
BABBIT V. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON: PRESERVING THE "CRITICAL LINK" BETWEEN HABITAT MODIFICATION AND THE "TAKING" OF AN ENDANGERED SPECIES, 20 Nova L. Rev. 747
This discusses the critical link between habitat modification and taking which is a huge part of the Palila II case (which we're currently working with ... Palila IV if you want to count each appeal as a Palila lol). Also discusses a crucial case that followed Palila (Sweet Home), and Palila's influence on it as well.
Beyond "Harm": Abandoning the Actual Injury Standard for Certain Prohibited Takings Under the Endangered Species Act by Giving Independent Meaning to "Harassment", 52 Vand. L. Rev. 1831
This Vanderbilt Law Review article discusses the expansion of the ESA term "taking" as applied in the Palila case, and discusses what "actual harm" means and looks like in the context of the ESA. Since this case broadly defined many ESA terms, the article looks at their application and how that lines up with the law.
Bower, Peter M., and Dana Neacşu. 2018. Introduction to U.S. Law, Policy, and Research-An Environmental Perspective. Chapter 10: The Endangered Species Act of 1973, pgs. 244-253. Lake Mary, FL: Vandeplas Publishing.
Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 2023 U.S. Dist. LEXIS 157039
In Center for Biological Diversity v. U.S. Fish & Wildlife Service, the Center for Biological Diversity sued the U.S. Fish and Wildlife Service challenged its decision not to list the whitebark pine as an endangered species under the Endangered Species Act (ESA). Center for Biological Diversity argued that FWS's decision was arbitrary and capricious, contending that the agency failed to adequately consider the threats to the whitebark pine's survival, including climate change and mountain pine beetle infestations. The district court reviewed the agency's decision under the arbitrary and capricious standard.
Sheikh, Pervaze A., Erin H. Ward, and R. Eliot Crafton. "The Endangered Species Act: Overview and Implementation." In Congressional Research Service (CRS) Reports and Issue Briefs, NA. Washington, DC: Congressional Research Service, 2021. Gale General OneFile (accessed May 4, 2023). https://link.gale.com/apps/doc/A661255463/ITOF?u=columbiau&sid=summon&xid=ffee 2cc2.
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Link to the case: https://casetext.com/case/biological-diversity-v-us-fish-wildlife
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap35-sec1533
Please note that the following brief was prepared by a student.
Plaintiffs: Center for Biological Diversity; Friends of the Santa Clara River
Defendants: United States Fish & Wildlife Service; CEMEX Inc.
Court: United States Court of Appeals for the Ninth Circuit
Facts: The US Fish & Wildlife Service had listed the unarmored threespine stickleback, a freshwater fish, as an endangered species in 1970. The Service proposed a rule designating three stream zones of a river watershed as critical habitat for the stickleback, but never completed the designation. CEMEX Inc. was awarded a contract to mine sand and gravel, which required the company to pump water from the river that could cause portions of the river to run dry periodically. The Service reviewed the project's likely impact on the stickleback, and it determined that the project was not likely to jeopardize the continued existence of the fish. The opinion included an incidental take statement (ITS). Plaintiff environmental protection groups Center for Biological Diversity and Friends of the Santa Clara River filed an action against the defendant, the United States Fish & Wildlife Service, charging that the agency violated the Endangered Species Act, 16 U.S.C.S. §§ 1531-1399.
Procedural History: The United States District Court for the Central District of California granted summary judgment in favor of CEMEX, which was allowed to intervene as a defendant, and the Service, and the group appealed. On appeal, the group argued that the Service exceeded its authority. The court found that the proposed designation of critical habitat under 16 U.S.C.S. § 1533 for an endangered species listed prior to the 1982 Amendments did not create a mandatory duty to make the designation. The court deferred to the agency's interpretation of the regulations, and held that the Service was not required to ensure compliance with federal and state law before issuing an ITS.
Legal Issue: Does 16 U.S.C. § 1533, part of the Endangered Species Act, require the United States Fish and Wildlife Service to complete formal designation of critical habitat for an endangered fish species listed over thirty-five years ago?
Holding: No.
Reasoning: The 1982 Amendments to the ESA state that pending proposals for designation of critical habitat are governed by the statutory provision [*936] on critical habitat revisions. (ESA Amendments of 1982 § 2(b)(2)). As such, the Service has discretion in choosing a course of action with respect to such proposals, just as it does in deciding whether or not to propose a designation.
We cannot accept the contention that "to the maximum extent prudent and determinable" should be read as the controlling language of § 1533(a)(3)(A) and that it mandates completion of the 1982 critical habitat proposal. Such contention fails to account for Congress's use of "shall" for designations and "may" for revisions. If CBD's interpretation is accepted, the statute's use of the discretionary "may" for revisions is rendered superfluous because the Service would be required to complete proposals pending at the time of the 1982 Amendments "to the maximum extent prudent and determinable." If this were truly Congress's intent, it would not have explicitly stated that pending proposals would be controlled by the provision on critical habitat revisions. Significantly, CBD does not explain why, under its logic, all critical [**13] habitat revisions would not be mandatory "to the maximum extent prudent and determinable," rendering meaningless the statute's separate treatment of revisions and designations. We decline to interpret the statute in this manner, and thus, we reject CBD's proposed interpretation. 8 See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).
We also reject the argument that a mandatory duty to complete the critical habitat designation [**14] arose when the Service failed to make a final determination on the proposal by October 13, 1983--a year after enactment of the 1982 Amendments. We previously held that HN9 the ESA's time requirements are meant to spur agency action rather than to prohibit it once the specified time lapses. See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995). Agency delay alone does not transform a discretionary duty into a mandatory duty, especially where Congress provided a specific remedy for such a violation--a citizen suit to compel a decision. See id.
For these reasons, we conclude that HN10 the proposed designation of critical habitat for an endangered species listed prior to the 1982 Amendments, does not create a mandatory duty to make the "designation."
Dissenting Opinion: None.
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Link to the case: https://law.justia.com/cases/federal/district-courts/arizona/azdce/4:2022cv00090/1288284/50/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap35-sec1533
Please note that the following brief was prepared by a student.
Heading: Ctr. for Biological Diversity v. Nat'l Marine Fisheries Serv., 2025 U.S. Dist. (2025)
Plaintiff: Center for Biological Diversity (The Center), a non-profit membership environmental organization
Defendant: National Marine Fisheries Service (NMFS)
Procedural History: The Center petitioned the NMFS to put into effect aspects of Section 4(d) to protect certain species of threatened coral. The NMFS denied The Center’s Petition. The Center then filed a lawsuit, accusing the NMFS’s denial of being “arbitrary and capricious”.
Facts: In 2014, the NMFS listed twenty Indo-pacific and Caribbean corals as threatened according to Section 4 of the ESA. Additionally, the NMFS identified human and environmental factors that are active threats to the coral’s survival. The NMFS itself found climate change to be an enormous threat to the threatened coral species.
Section 4(d) of the ESA asserts that “the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species identified as threatened. The word ‘Secretary’ here refers to the Secretary of Commerce, who have delegated these ESA responsibilities to the NMFS. (1) The Center’ s petition to the NMFS included two major steps for the NMFS. Firstly, they asked that the NMFS extend ESA Section 9 protections to the coral to stop the coral from being traded and collected. Secondly, the NMFS demanded that the NMFS address the threats of climate change, greenhouse gas emissions, and local stressors to better protect the corals.
The NMFS denied The Center’s concern regarding climate change with three major arguments 1) Section 4(d) regulations enforced by the NMFS would have little effect on addressing the climate change that is threatening the coral, 2) International and interagency engagement under Section 7of the ESA will be a more effective tool to combat climate change, 3) Using Section 4(d) to address climate change would distract resources from more achievable, higher priority protection projects.
Issue: Was the NMFS’ reasoning for denial of to use protections outlined by 16 U.S.C.S. § 1533 (d) to address climate change on the basis of their limiting effect arbitrary and capricious?
Holding: Yes, the NMFS’ reasoning for the denial was arbitrary and capricious.
Reasoning: The claim of Section 4(d) regulations having a ‘limited’ effect on climate change addresses the scope of the impact, rather than whether such regulations are not “necessary and advisable”, as the language in Section 4(d) outlines. In addressing a threat as expansive as climate change, taking many “limited” effects may have a cumulative positive effect, and therefore should be pursued. Though the NMFS later contended that the word “limited” should be understood as “no meaningful”, however, this is not what the NMFS wrote in their original denial, and therefore the word “limited” must be examined as is. Additionally, the denial letter offers no explanation for why the NMFS came to the conclusion that the impact of Section 4(d) regulations addressing climate change would be “limited”.
Dissenting Opinion: There was no dissenting opinion in this case.
Marine Mammals Protection Act (MMPA) (16 U.S.C. ch. 31 §§ 1361 et seq.)
The Marine Mammal Protection Act, was enacted due to concerns of marine mammal species being endangered of extinction as result of human activity. The MMPA was enacted with the goal of reducing the kill of marine mammals and protecting them from completely diminishing. The MMPA has aided in some species recovery efforts.
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In the 1960’s many marine mammals were facing significant declines, and publicity about this was growing. Whaling peaked in the 60’s with about 703,000 whales being hunted during that time (Reardon, 2024). In October of 1972, the MMPA was enacted and with it a general ban is placed on the taking of marine mammals unless a party has proper permits, incidental take from commercial fishing, Indigenous treaty rights, or reasons of National Defense. “Taking” includes hunting, harassing, capturing, and killing of marine mammal species.
The Marine Mammal Protection Act was the first to shift marine management from just managing a specific species to include the entire ecosystem. In the ecosystem first model, the holistic approach aims at maintaining the health and productivity of marine ecosystems to aid the survival of the protected species. Along with the new model of marine management, the MMPA utilizes a precautionary approach with its taking clause.
There are three federal entities that share responsibility for MMPA implementation: NOAA Fisheries, U.S. Fish and Wildlife Services, and the Marine Mammal Commision. NOAA is responsible for constructing and implementing conservation and take-reduction plans for whales, dolphins, porpoises, seals, and seal lions. U.S. Fish and Wildlife Services is responsible for the protection of walrus, manatees, sea otters, and polar bears. Finally, the Marine Mammal Commision provides oversight of domestic and international policies addressing human impacts on marine mammals. Separately, the Animal and Plant Health Inspection Service is responsible for marine mammals in public display facilities.
The secretary is required to prepare an annual stock assessment report for each marine mammal in U.S. waters. This was implemented to monitor the effectiveness of the conservation methods being used and see if there’s room for adjustment. Additionally, in Alaska, the federal government cooperates with Alaskan Native Organizations to work on conserving marine mammal populations in Alaska. The cooperation increases knowledge of marine mammals' behaviors. Native Organizations also provide sampling of harvested animals for scientific research.
Sources:Jessica Reardon , COMMENT: THE MARINE MAMMAL PROTECTION ACT AND THE NORTH ATLANTIC RIGHT WHALE, 16 Golden Gate U. Envtl. L.J. 35, (Spring, 2024), available at https://advance.lexis.com/api/document?collection=analytical-materials&id=urn%3acontentItem%3a6CKK-MXM1-JD86-N4V2-00000-00&context=1519360&identityprofileid=GZVX8R51690.
Melone v. Coit, 100 F.4th 21, 2024 U.S. App. LEXIS 10079, 54 ELR 20066, 118 Fed. R. Serv. 3d (Callaghan) 1438, 2024 WL 1792762 (United States Court of Appeals for the First Circuit April 25, 2024, Decided), available at https://advance.lexis.com/api/document?collection=cases&id=urn%3acontentItem%3a6BWH-34Y3-SG4P-84BB-00000-00&context=1519360&identityprofileid=GZVX8R51690.
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Link to the case: https://scholar.google.com/scholar_case?case=9601242570423468397&q=Melone+v.+Coit,+100+F.4th+21&hl=en&as_sdt=2006&as_vis=1
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap31-subchapII-sec1371&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Parties: Thomas Melone et al., Appellant v. Janet Coit et al., Defendants United States Court of Appeals for the First Circuit
Facts: South of Martha’s Vineyard and Nantucket, BOEM identified and made an area available for leasing for a possible wind energy development. Vineyard Wind was awarded the commercial wind energy lease in 2015 and in 2017 Vineyard Wind got approval for their project. Due to noise that could disturb right whales, Vineyard Wind requested an IHA from BOEM to be in compliance with the Marine Mammal Protection Act. The NMFS determined that around 20 right whales were subject to non-lethal harassment and that was a “small number”. They also determined that the harassment would have a “negligible impact” and at most it would run the whales out of the area and they’d experience a temporary hearing impairment.
Procedural History: Plaintiff Thomas Melone filed suit against NMFS, BOEMS, and other federal agencies for violating the MMPA with their Vineyard Wind Project. The district court granted summary judgement in favor of Vineyard Wind and NMFS in full. In Count I it was found NMFS did not comply with certain procedures of the MMPA but it was deemed harmless. For Count II, the district court held that NMFS complied with the MMPA in issuing an IHA to Vineyard Wind. Melone challenged those results leading to this appeal.
Legal Issue: Did the district court err in finding that NMFS complied with guidelines in 16 U.S.C. §1371(a)(1)-(2), the Marine Mammal Protection Act, in issuing an IHS based on NMFS’s claim that the number of right whales harassed constituted a “small number”?
Holding: No, while Melone argues that the “small numbers” in the case of the right whales should be limited to one, the Appeals Court affirmed the finding that the NMFS applied enough scientific expertise to quantify the proposed take of 20 right whales would still have a “negligible impact” on the species.
Reasoning: In this case the NMFS had concluded that 5.4% of the right whale population consisted of a “small number”. Melone offered no counterargument to other courts upholding similar agency determinations such as in Native Vill. of Chickaloon v. NMFS, 947 F. Supp 2d 1031 where they determined that take of 10% of beluga whales consisted of a “small number”. The MMPA defines "potential biological removal" as the "maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population." The IHA grant hadn’t allowed for lethal take therefore the species wasn’t being removed, just temporary non-lethal harassment. As the agency had already considered the impact of the harassment in its distinct “negligible impact” analysis, the court found no fault with the agency's determination of “small numbers”.
Dissenting Opinion: None.
Animal Welfare Act (AWA) (7 U.S.C. § 2131 et seq.)
The Animal Welfare Act (AWA) is the central federal statute concerned with the welfare of mammals, and is intended to safeguard certain animals from inhumane treatment and neglect. Since it was first enacted to protect laboratory animals in 1966, the Act has been amended and expanded, setting out to ensure humane treatment for certain kinds of warm-blooded animals used in research, bred for sale, exhibited to the public, or transported commercially 7 USCS § 2131-2. Notably, the AWA excludes birds, rats, and mice bred for research, as well as horses and farm animals used for food, fiber, and other agricultural purposes. Cold-blooded animals, such as snakes and alligators, are not protected under the Act, and pets owned by private citizens are also excluded. Individuals and groups responsible for protected animals are subject to the Act (like animal dealers, zoos, and laboratories). Such “persons” defined under the AWA must meet the standards laid out for them by the statute and have to maintain certain records, acquire licenses, and file reports. Noncompliance with the AWA can result in civil penalties (Bickell 1).
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The AWA provides the Secretary of Agriculture power to “promulgate such rules and regulations, and orders as he may deem necessary to effectuate the purposes of this Act” 7 U.S.C. § 2143(a)(1) and authorizes the U.S. Department of Agriculture to develop and enforce the Secretary’s regulations (the USDA's Animal and Plant Health Inspection Service (APHIS) is the segment of the Department that administers the AWA (Bickell 1-2)).
The statute includes regulations touching on subjects like facility inspections, requisite paperwork, and some day-to-day standards for the care of certain animals, like handling, veterinary oversight, psychological well-being, and housing conditions. The AWA prohibits commercial animal fighting, like dogfights or cockfights, and includes recordkeeping regulations intended to prevent trade in lost or stolen animals. The AWA includes numerous parameters for the treatment of protected research animals, and forbids inflicting scientifically unnecessary harm or repeating experiments without cause (although the AWA prohibits the Secretary from interfering with “research or experimentation” 7 U.S.C. § 2143(a)(6)(i), and research facilities have discretion in determining what constitutes research and when research is being conducted). In general, the Act upholds that a set of protected animals in certain circumstances should not experience excessive pain or discomfort, and must be given care that meets minimum humane standards (Bickell 1-4).
Sources:
Animcal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229, 2000 U.S. App. LEXIS 1205 (United States Court of Appeals for the District of Columbia Circuit February 1, 2000, Decided ), available at https://advance.lexis.com/api/document?collection=cases&id=urn%3acontentItem%3a3YGC-3PH0-0038-X4JF-00000-00&context=1519360&identityprofileid=GZVX8R51690.
Animal Welfare Act, 7 U.S.C. §§ 2131–2143 (2018) Bickell, Eleni. “The Animal Welfare Act: Background and Selected Issues.” Congress.gov, 8 Feb. 2023, www.congress.gov/crs-product/R47179. Accessed 2 May 2025.
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Link to the case: https://www.quimbee.com/cases/animal-legal-defense-fund-v-glickman
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title7/USCODE-2023-title7-chap54-sec2143&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading: Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229 (2000)
Appellee: Animal Legal Defense Fund, Inc., et al
Appellant: Daniel R. Glickman (As Secretary of the United States Department of Agriculture) et al.
Court: United States Court of Appeals for the District of Columbia Circuit
Facts: An animal welfare advocate suffered aesthetic injury during regular visits to animal exhibitions when he observed primates suffering in living conditions that the USDA determined complied with its regulations. The appellees argued that these regulations permit dealers, exhibitors, and research facilities to keep primates in inhumane conditions and therefore violate the statutory mandate under the AWA to adopt sufficient standards to protect primate well-being.
Procedural History: The United States District Court for the District of Columbia held that the welfare advocate had standing to sue; held that regulations promulgated by the Secretary of Agriculture did not meet the statutory mandate of 7 USCS § 2143; and ordered that the Secretary commence rulemaking procedures and promulgate new standards. Defendant (appellant) appealed the judgment.
Legal Issue: Is the Secretary obligated to establish more specific standards of care to ensure the wellbeing of primates in research facilities under the Animal Welfare Act 7 USCS § 2143, which requires the government to set “minimum requirements” 7 USCS § 2143(a)(2) for treatment and promulgate standards “for a physical environment adequate to promote the psychological well-being of primates” 7 USCS § 2143(a)(2)(B)?
Holding: No. The Secretary is not obligated to establish more stringent or specific guidelines; the current specifications are sufficient to fulfill the statutory obligation to set “minimum” and “adequate” welfare requirements. The decision of the district court is reversed.
Reasoning: Ultimately, the statute requires only the promulgation of minimum requirements, and such requirements, including specific engineering standards, have been established (7-8). While the appellee points to a lack of group socialization standards as an example of inadequate regulation, the proper treatment of animals is not always scientifically settled, and may change on a case by case/species by species basis. In some cases, there are concerns that more regulation may unintentionally lead to harm if applied to situations in which they are not supportive of wellbeing (for example, a mandate to keep primates in social groups could lead to fighting or the spread of diseases in some contexts) (12-17). As a result, the establishment of limited requirements of varying levels of specificity (even if difficult to enforce or augment through interpretation) is all that is required or appropriate under the AWA — agencies are accorded broad discretion in determining the specificity of regulations (17-18). Beyond some guidelines for minimum cage sizes, limiting animal restraint, and providing treatment that accords with general standards of primate wellbeing, the law defers to the judgement of staff veterinarians to establish standards of living and permits flexibility in animal care, housing, and treatment. These standards align with the directives of the AWA.
Dissenting Opinions: None
National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.)
The National Environmental Policy Act (NEPA) was enacted on January 1, 1970 and is the foundation of environmental law and policy within the United States. The primary purpose of NEPA is to ensure that federal agencies must look into the consequences of potential actions before making any major decisions with environmental consequences. NEPA came to be during a time full of environmental degradation, resource depletion, and pollution. The growing public concern over these environmental issues allowed for their integration into the law and the government. NEPA is different from other regulatory statutes, such as the Clean Air Act or Clean Water Act, as it is procedural, not regulatory. Instead of mandating outcomes, it simply ensures that environmental factors are given proper consideration prior to decision making. Through this framework transparency, informed decision making, and public involvement in environmental decisions are promoted.
At the core of NEPA are three categories of documents, all of which are requirements for federal agencies intending to undertake major actions that could have potential environmental consequences. These categories include Categorical Exclusions (CatEx), Environmental Assessments (EA), and Environmental Impact Statements (EIS). A CatEx is used when a type of action is considered to not have significant environmental consequences, given there are normal circumstances surrounding said action. If there is a possibility that an action may or may not have a significant consequence, the agency must prepare an EA. And EA is then evaluated and the need for an EIS is determined. An EIS is the most comprehensive evaluation documentation which is only required when the action is predicted to bring significant consequences to the quality of the environment. An EIS includes a detailed explanation and analysis of the proposed action, alternative actions, potential environmental consequences, and comes with a mandatory public comment period and inter-agency review.
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The National Environmental Policy Act of 1969 (NEPA), codified at 42 U.S. Code §§ 4321–4370h, was signed into law on January 1, 1970. It emerged during a time of growing public awareness and concern about environmental degradation. Throughout the 1950s and 1960s, the United States experienced rapid industrial growth, suburban expansion, and large-scale federal infrastructure projects, like highways, dams, and military installations, which often caused significant environmental harm. Additionally, the 1960s saw a surge in the environmental movement, driven by high-profile ecological disasters, such as the 1969 Cuyahoga River fire in Ohio, where an oil-slicked river caught fire. Public outrage over these incidents created political momentum for environmental legislation.
However, there was no consistent federal requirement to assess or consider the environmental consequences of these actions. Therefore NEPA was introduced to fill that gap and to ensure the federal government acted as a responsible steward of the environment.
Senator Henry "Scoop" Jackson of Washington played a leading role in drafting NEPA, with the goal of establishing a national environmental policy. NEPA introduced the concept of “look before you leap” into federal project planning. Before NEPA, agencies focused narrowly on their missions—such as building roads, managing forests, or facilitating energy development—without necessarily considering broader ecological consequences. NEPA forced agencies to think holistically. It also provided mechanisms for public participation, giving citizens a voice in the decision-making process and access to information that had previously been inaccessible or obscured.
§ 4331 “Congressional Declaration of National Environmental Policy” is a provision that serves as a statement of legislative purpose. It declares that it is the continuing policy of the federal government to use all practicable means to maintain conditions where environmental concerns are integrated into the decision making processes of federal agencies.
Courts have consistently interpreted § 4331 as a policy directive, not a binding rule of decision, but rather shaping how courts contextualise NEPA claims by establishing the moral foundation for NEPA. The Supreme Court made this distinction clear in Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980), holding that NEPA’s role is to ensure that agencies consider environmental consequences, not to mandate specific outcomes. NEPA is not a regulatory law that prohibits environmental harm. Rather, it requires federal agencies to assess and disclose the environmental impacts of their proposed actions before making decisions. § 4331 interprets the procedural requirements of NEPA, which are further elaborated on in § 4332, such as This preparing detailed reports known as Environmental Assessments (EAs) and Environmental Impact Statements (EISs). The idea was that through greater transparency, agencies and the public could make more informed decisions.
NEPA laid the groundwork for a wave of major environmental legislation in the 1970s, including the Clean Air Act, the Clean Water Act, and the Endangered Species Act. To this day, environmental advocates use NEPA as a means of holding agencies accountable in court when they fail to adequately analyze environmental impacts.
Works Cited:
Buffalo River Watershed All. v. United States Forest Serv., 2024 U.S. Dist. LEXIS 177693, 54 ELR 20138, 2024 WL 4360496 (United States District Court for the Western District of Arkansas, Harrison DivisionSeptember 30, 2024, Filed). https://advance.lexis.com/api/document?collection=cases&id=urn%3acontentItem%3a6D37-VX83-RRM7-552Y-00000-00&context=1519360&identityprofileid=GZVX8R51690.
Environmental Protection Agency. (n.d.). Summary of the National Environmental Policy Act. U.S. Environmental Protection Agency. Retrieved from https://www.epa.gov/laws-regulations/summary-national-environmental-policy-act
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Link to the case: https://law.justia.com/cases/federal/district-courts/arkansas/arwdce/3:2023cv03012/67811/62/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI-sec4331&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading: Buffalo River Watershed All. v. United States Forest Serv., 2024 U.S. Dist. LEXIS 177693 (2024)
a. Plaintiff: Buffalo River Watershed Alliance (BRWA)
b. Defendant: United States Forest Service (USFS) and District Ranger Timothy E. Jones
c. Court: United States District Court for the Western District of ArkansasFacts: In 2005, the defendant United States Forest Service (USFS) developed a comprehensive Forest Management Plan for the Ozark National Forest, aiming to address ecological challenges such as invasive species, increased tourism, and the prevalence of certain tree insects and diseases. The Robert’s Gap Project, targeting a 40,000-acre area within the forest, proposed management strategies including herbicide application, controlled burns, and selective thinning to improve forest health and reduce wildfire risks. The project area was located in northern Arkansas, upstream from the Buffalo National River, a designated Wild and Scenic River.
Between 2017 and 2021, the defendant conducted a detailed assessment of the Robert’s Gap area, developing a proposal consistent with the 2005 Forest Plan's overall goals. The defendant sought public input through meetings and solicited comments on the Draft Environmental Assessment (EA) in August 2020. The plaintiff The Buffalo River Watershed Alliance (BRWA), a local environmental advocacy group, submitted objections to the Draft EA, expressing concerns about potential impacts on water quality and endangered species, particularly the Indiana bat.
In April 2021, the defendant published the Final EA and Draft Decision Notice for the Robert’s Gap Project. The Final EA addressed public comments and included measures to protect water quality and wildlife habitats. The plaintiff continued to object to the project, alleging that the defendant had failed to adequately assess the project's potential impacts and had not properly considered new information that emerged after the Final EA was published.Procedural History: In May 2022, the plaintiff sent a letter to the defendant requesting that the Decision Notice be rescinded and that a full Environmental Impact Statement (EIS) be prepared to address concerns regarding water quality and the discovery of an Indiana bat maternity colony. The defendant did not respond to this request.
Consequently, in February 2023, the plaintiff filed a complaint in the United States District Court for the Western District of Arkansas, alleging violations of the National Environmental Policy Act (NEPA). The plaintiff filed an amended complaint in June 2023, incorporating information obtained through a Freedom of Information Act request.
The amended complaint included seven claims, alleging that the defendant had failed to adequately assess the environmental impacts of the Robert’s Gap Project, particularly concerning the Buffalo National River, water quality, and the endangered Indiana bat. The plaintiff also contended that the defendant had deprived the public of the opportunity to comment on significant developments that occurred after the Final EA was published, such as the discovery of the Indiana bat maternity colony and the collection of baseline water-quality data.
In May 2024, the court held a hearing on the parties' cross-motions for summary judgment. In September 2024, the court issued a memorandum opinion and order granting the defendant’s motion for summary judgment and dismissing the plaintiff’s claims with prejudice. The court concluded that the defendant had complied with NEPA and had adequately considered the environmental impacts of the Robert’s Gap Project.Legal Issue: The relevant legal issue is:
Whether the defendant the United States Forest Service, in approving the Robert’s Gap Project, acted in a manner consistent with the national environmental policy and stewardship responsibilities articulated in 42 U.S. Code § 4331?Holding: The defendant complied with NEPA and did not act arbitrarily or capriciously in its decision-making process concerning the Robert’s Gap Project. Plaintiffs argued that the defendant failed to uphold the environmental values enshrined in § 4331 by approving a large-scale logging project in a biologically sensitive watershed without sufficient public engagement or meaningful consideration of long-term ecological harm. However, the court found that the defendant adequately considered the environmental impacts through its EA and that the issuance of a Finding of No Significant Impact (FONSI) was appropriate.
Rationale: The court began by emphasizing NEPA's purpose to ensure that federal agencies consider the environmental effects of their proposed actions and inform the public of their decision-making process. The defendant’s decision to prepare an EA instead of a full EIS was based on its determination that the Robert’s Gap Project would not significantly affect the environment. The court found that this determination was reasonable and supported by the administrative record.
The court also addressed the plaintiff’s argument that the defendant failed to adequately assess the potential impacts on the Buffalo National River. The court noted that the Final EA explicitly referred to the Forest Plan, which contained specific analysis concerning environmental considerations and forest-wide requirements for managing areas in and around the Buffalo National River. The court concluded that the defendant appropriately "tiered" its analysis to the broader Forest Plan, thereby avoiding repetitive discussions and focusing on project-specific issues.
Regarding the plaintiff’s concerns about the endangered Indiana bat, the court found that the defendant had taken appropriate measures to protect the species. The court noted that the defendant, in conjunction with the Fish and Wildlife Service, had prepared an amendment to the Forest Plan specifically addressing the Indiana bat. The court concluded that the discovery of a maternity colony in the project area did not necessitate a new EIS or supplemental EA, as the defendant had already taken steps to protect the species.
The court also considered the plaintiff’s claim that the defendant had deprived the public of the opportunity to comment on new information that emerged after the Final EA was published. The court found that the defendant had provided adequate opportunities for public participation throughout the decision-making process, including soliciting comments on the Draft EA and holding public meetings. The court concluded that the defendant’s decision not to prepare a supplemental EA or EIS was not arbitrary and capricious.
In addressing the plaintiff’s argument that the defendant acted arbitrarily and capriciously by preparing an EA and FONSI instead of a full EIS, the court found that the defendant had taken a "hard look" at the potential environmental impacts of the project.Dissenting Opinion: None.
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An example of the central arguments found within NEPA is found in 42 U.S.C. § 4332, which outlines the procedural requirements imposed on federal agencies. Specifically, § 4332(2)(C) mandates that all federal agencies include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment a detailed statement on: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources. The law essentially says that environmental consequences must be integrated into the planning and execution of federal actions through compliance with NEPA.
Another essential part of NEPA is the importance of public participation, as it gives the public an opportunity to comment on proposed actions and transparently see potential environmental consequences. The Council on Environmental Quality (CEQ) is established under NEPA and located within the Executive Office of the President. It oversees the implementation of NEPA and holds federal agencies accountable if they are not complying. CEQ also issues regulations and guidance which improve the quality of the process outlined in NEPA.
Works Cited:
Biber, Eric, The Importance of Litigation in Ensuring Government Accountability Under NEPA, 49 Envtl. L. Rep. News & Analysis 10965 (2019), https://www.proquest.com/docview/2308015081.
Dep’t of Energy, National Environmental Policy Act of 1969: As Amended Through P.L. 118–5, Enacted June 3, 2023 (June 7, 2023), https://www.energy.gov/sites/default/files/2023-08/NEPA%20reg%20amend%2006-2023.pdf.
Envtl. Prot. Agency, What Is the National Environmental Policy Act?, https://www.epa.gov/nepa/what-national-environmental-policy-act (last visited May 1, 2025).
Lin, Qiao, et al., The Environmental Impact Statement Process and Public Health: Reviewing the Role of Health in Federal Environmental Assessments, 20 Int’l J. Envtl. Res. & Pub. Health 6642 (2023), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10470956/.
National Environmental Policy Act of 1969, § 102, 42 U.S.C. § 4332 (1999), https://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title42-section4332.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008), https://advance-lexis-com.ezproxy.cul.columbia.edu/document/?pdmfid=1519360&crid=002ed015-fa11-4bcc-82d2-9453ee11d9ff&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4TX2-8KV0-TXFX-13DV-00000-00.
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Link to the case: https://www.govinfo.gov/app/details/USCOURTS-gud-1_22-cv-00001/USCOURTS-gud-1_22-cv-00001-0
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI-sec4332&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading: Ritidian v. United States Dep’t of the Air Force, 128 F.4th 1089 (2025)
a. Plaintiff-Appellant: Prutehi Litekyan: Save Ritidian
b. Defendant-Appellee: United States Department of the Air Force; Frank Kendall, Secretary of the Air Force; United States Department of Defense; Lloyd Austin, Secretary of Defense
c. Court: United States Court of Appeals for the Ninth CircuitFacts: Tarague Beach is a site that serves many purposes for both wildlife and culture in the area. It is a nesting habitat for the endangered green sea turtle, and a habitat for migratory seabirds. In addition, many local communities spend time on Tarague Beach for cultural and recreational purposes, along with fishing in the nearby waters. Guam’s sole source aquifer, providing water to 80% of the population, sits directly underneath Tarague Beach.
The United States Department of the Air Force has been operating an open detonation and open burn site at Tarague Beach in Guam since 1982. To do so, the Air Force must obtain a permit, renewable every three years, from the Guam EPA. This process is required under the Resource Conservation and Recovery Act (RCRA). However, the Air Force has never conducted either an Environmental Impact Statement or Environmental Assessment for the open detonation and open burn site as required by the National Environmental Protection Act (NEPA).
The Air Force disposes of explosive materials, tear gas, ammunition, propellants, white/red phosphorus, and other pyrotechnic devices at this site. Open burn operations have ceased since the early 2000s, but open detonation, which requires placing the desired waste into a pit with an explosive charge and igniter, has continued under each RCRA permit. It is known that these operations may cause groundwater contamination and pollution in the ground or air where waste is ejected.The plaintiff, Prutehi Litekyan: Save Ritidian, a non-profit organization that is dedicated to the protection of natural and cultural resources in Guam, seeks an injunction against the defendant, The United States Department of the Air Force, on the basis that they have “failed to comply with its environmental review obligations under NEPA.”
Procedural History: In January 2022, Prutehi Litekyan filed suit against the United States Department of the Air Force for having violated 42 U.S.C. §4332(C) of NEPA in submitting an RCRA permit renewal without preparing an Environmental Impact Statement or an Environmental Assessment. They sought injunctive relief, through the withdrawal of the Defendant’s permit application and a pause on open burn and open detonation operations until the Defendant complied with NEPA’s requirements. The district court ruled that the Plaintiff lacked standing for two reasons: firstly, the injury was not fairly traceable to the Air Force’s permit application, and secondly, there was no final agency action as Guam’s EPA had not made a decision concerning the renewal of the Defendant’s permit. In addition, the district court held that the permit application was not subject to NEPA under the “functional equivalence doctrine” as they found that the RCRA imposed environmental review procedures that could be seen as “redundant” with those under NEPA.
The plaintiffs appealed this decision to the 9th District Court of Appeals on all three grounds of dismissal. The case was heard on October 6th, 2023 and decided on February 13th, 2025 with the opinion given by Judge Marsha S. Berzon.Legal Issue: Does the RCRA’s permitting process make NEPA review under 42 U.S.C. §4332(C) of the National Environmental Policy Act “redundant” and a “waste of resources” under the “functional equivalence doctrine”?
Holding: No, the RCRA’s permitting process does not make NEPA review under 42 U.S.C. §4332(C) of NEPA “redundant” under the “functional equivalence doctrine” as its permitting process is highly distinguishable from the NEPA environmental review process. Therefore, NEPA does apply to the Air Force’s decision to conduct open burn and open destruction operations on Tarague Beach. The plaintiff can pursue an injunction on the basis of noncompliance with NEPA.
Reasoning: The Court holds that Congress intended NEPA to be used to the fullest extent possible in the interpretation and administration of public laws. Relying on precedent, the Court states that it must “make as liberal an interpretation as we can to accommodate the application of NEPA.” There are only two exceptions to this rule, including the functional equivalence doctrine, and the RCRA permitting process meets neither of them.
The first exception is when an irreconcilable and fundamental statutory conflict is “clear and unavoidable.” This exemption does not apply for the RCRA as there is nothing in the statute that would prevent NEPA from being applied. In this case, NEPA review is entirely possible prior to submitting the permitting application, and hence does not interfere with the permitting process required by the RCRA.
The second exemption is when another statute may “displace” NEPA’s procedural requirements if there is a comparable process for environmental protection, falling under the functional equivalence doctrine. The court is specifically looking at whether the environmental review processes overlap enough to render NEPA review superfluous, or whether the processes are sufficiently different that Congress intended for the NEPA process to be replaced by the one in the alternative statute.
While there is some overlap between the RCRA and NEPA, the court holds that the timing of the environmental review in both processes is distinct. NEPA’s environmental review is intended to take place prior to a final decision on the undertaking of a particular activity. On the other hand, the RCRA’s environmental review only occurs after a final decision has been made on engaging in a particular activity. The RCRA review is for a specific course of action and does not encourage the review of alternative possibilities, allowing the defendant to remain on one track. In addition, while the RCRA does allow for public engagement, it is not required that opposing viewpoints be internalized into the defendant’s decision-making process, unlike NEPA.
For these reasons, exceptions falling in the second category have almost exclusively been granted for agencies whose focus is environmental protection, the United States Department of the Air Force cannot be counted as one of these agencies. Therefore, the defendant is subject to NEPA requirements as the RCRA review process differs enough in key aspects to warrant it.
It is also incorrect to infer that the RCRA was not meant to coexist with NEPA, as there is nothing to suggest that applying them together would damage Congress’s intent in enacting the RCRA. Congress has not addressed any possible issues arising between the RCRA and NEPA, despite amending the former several times. The Court determined that “silence concerning a decisionmaking process not itself covered by RCRA [...] does not indicate that Congress intended to override NEPA’s mandates.” Rather, the Court ruled that Congress intended for NEPA and RCRA to work alongside one another as both “achieve fundamentally different, but complementary, goals.”
As a result, the Court ruled that the defendant was wrong in forgoing the environmental review process as mandated by NEPA. Their reliance on the “functional equivalence doctrine” ignores important distinctions in timing and public engagement between the RCRA and NEPA. For this reason, the United States Department of the Air Force is in violation of 42 U.S.C. §4332(C) of NEPA due to its failure to conduct an Environmental Assessment prior to making the decision to apply for an open burn/open detonation permit at Tarague Beach.Dissent: Judge VanDyke dissented on the grounds that the court lacked statutory standing to hear the case. However, his dissent does not address the issue of whether the United States Department of the Air Force was in violation of the NEPA review process detailed in 42 U.S.C. §4332(C).
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Brief 1
Link to the case: https://supreme.justia.com/cases/federal/us/555/7/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI-sec4332&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading:Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)
a. Plaintiff: Natural Resources Defense Council, Inc. (NRDC)
b. Defendant: Donald C. Winter, Secretary of the United States Navy (representing the U.S. Navy)
c. Court: Supreme Court of the United StatesFacts: The U.S. Navy planned to conduct training exercises off the coast of Southern California, including the use of mid-frequency active sonar (MFA). MFA is known to harm marine mammals such as whales and dolphins. NRDC and other environmental organizations sued the Navy, arguing it failed to comply with the procedural requirements of the National Environmental Policy Act (NEPA), specifically 42 U.S.C. § 4332(C), by not preparing an Environmental Impact Statement (EIS). Instead, the Navy had completed a less comprehensive Environmental Assessment (EA), concluding that its activities would not significantly affect the environment. NRDC claimed this conclusion ignored well-documented scientific evidence and violated NEPA’s requirement to fully assess environmental consequences.
Procedural History: In March 2007, NRDC and other environmental groups filed suit in the U.S. District Court for the Central District of California. In August 2007, the court issued a preliminary injunction, blocking the Navy from using MFA sonar, stating that the EA did not meet NEPA’s standards. The Navy appealed, and in January 2008, the Ninth Circuit affirmed the injunction with modifications, agreeing that a NEPA violation likely occurred. Later that month, President George W. Bush issued a temporary exemption for the Navy, citing national security. The Council on Environmental Quality also provided alternative arrangements. In February, the district court reissued the injunction, finding the presidential exemption unconstitutional. In June, the Supreme Court granted certiorari and heard oral arguments in October.
Legal Issue: Does the Navy’s need for military readiness and national security justify an exception to NEPA’s environmental review requirements when using MFA sonar in training exercises?
Holding: The Supreme Court reversed the Ninth Circuit’s decision and lifted the injunction. It held that even if the Navy had failed to comply with NEPA, the interest in national security outweighed the potential environmental impact.
Reasoning: Chief Justice John Roberts, writing for the majority, emphasized that NEPA is a procedural statute that requires agencies to consider and disclose environmental impacts, not to achieve a specific environmental outcome. The Court held that potential environmental harm was speculative and did not justify halting Navy training. The Navy had voluntarily implemented mitigation measures to protect marine life, and the Court cautioned against judicial interference in military operations, especially concerning national defense.
Dissenting Opinion: Justice Ruth Bader Ginsburg, joined by Justice David Souter, dissented. She argued that the Navy’s failure to prepare an EIS violated NEPA and that the Court failed to give proper weight to environmental concerns. Ginsburg emphasized that NEPA’s procedural safeguards exist to ensure environmental considerations are made before action is taken, and that bypassing these protections undermines the law’s purpose.
Brief 2
Please note that the following brief was prepared by a student.
Parties: Donald C. Winter, Secretary Of The Navy, Et Al., Petitioners V. Natural Resources Defense Council, Inc., Et Al.
Procedural History: Plaintiff environmental groups had originally sued the U.S. Navy, seeking injunctive relief on the grounds that Navy training exercises violated the National Environmental Policy Act of 1969 (NEPA). Specifically, plaintiffs contended that the Navy failed to prepare an environmental impact statement (EIS) as mandated by NEPA. The trial court issued an injunction restricting the Navy’s use of sonar equipment in training. Later, the U.S. Court of Appeals for the Ninth Circuit upheld the injunction. The Navy then sought relief from the Council on Environmental Quality (CEQ), which authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." Finally, the Supreme Court reversed the Appeals Court’s decision, removing the injunction.
Facts: Various environmental groups claimed that sonar used in Navy exercises off the coast of Southern California (SOCAL) causes serious injuries to the local animals, including some endangered species. In response, the Navy claimed that anti-submarine warfare is a national security priority, and that it justifies its use of sonar in training.
Issue: Should the court perform a “balancing of equities” between environmental protection and national security despite statutory law dictating certain governmental obligations?
Holding: Yes, the court can and should perform a “balancing of equities” when considering issuing injunctions against federal government activities if the national security interests outweigh environmental protection interests.
Reasoning: (Majority Opinion by: Chief Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito.) Chief Roberts argues that the courts should consider a “balancing of equities” when national security interests outweigh environmental protection interests, despite statutory requirements to the contrary. Chief Roberts defends the majority decision by stating that “even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief.” Additionally, Chief Roberts argued that while NEPA requires federal agencies "to the fullest extent possible" to prepare an environmental impact statement (EIS) for "every . . . major Federal action,” it does not require agencies to prepare a full EIS if it determines -- based on a shorter environmental assessment (EA) -- that the proposed action will not have a significant impact on the environment. Thus, the Navy is in no violation for not preparing a full EIS.
Finally, Chief Roberts notes that the Navy’s actions are lawful because “The President, pursuant to 16 U.S.C. § 1456(c)(1)(B), granted the Navy an exemption from the Coastal Zone Management Act (CZMA) Section 1456(c)(1)(B) permits such exemptions if the activity in question is "in the paramount interest of the United States," in addition to the fact that the “Council on Environmental Quality (CEQ) authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." See 40 CFR § 1506.11.”
Dissenting Opinions:
(Dissent by: Justice Breyer, joined by Justice Stevens.)
Justice Stevens agreed that there were not sufficient grounds for an injunction and that a balancing of equities should be taken into consideration. However, he agreed with the “the modified conditions imposed by the Court of Appeals in its February stay order reflect the best equitable conditions that can be created in the short time.”
(Dissent by: Justice Ginsburg, joined by Justice Souter.)
Justice Ginsburn focused her dissent on the issue that NEPA mandates agencies prepare an EIS and notes that the Navy never refuted this fact, yet has not completed one yet. She points out that the Navy “acted first, and thus thwarted the very purpose an EIS is intended to serve.” And that it sought justification from the Executive branch instead of Congress and statutory law.
Justice Ginsburg does not disagree that a balancing of equities should be considered, but she does contend that “the District Court conscientiously balanced the equities and did not abuse its discretion.”
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Link to the case: https://law.justia.com/cases/federal/appellate-courts/cadc/14-5205/14-5205-2015-09-29.html
Link to the United States Code (2024 edition): https://www.govinfo.gov/app/details/USCODE-2024-title42/USCODE-2024-title42-chap55-subchapI-sec4332
Please note that the following brief was prepared by a student.
Heading: Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31, 36-37
Parties: The plaintiff is the Sierra Club who argues that no agency ever conducted a NEPA analysis of the entire pipe-line.
The defendant is the U.S. Army Corps of Engineers with Enbridge often intervening. The court is the United States court of appeals
Procedural History: Sierra Club filed suit against the Corps on the day that Enbridge began the construction of Flanagan South in August 2013. The complaint asserted that NEPA analysis was required in light of requested easements over federal lands, Clean Water Act verifications, and the issuance of the ITS. The Sierra Club claimed that those actions triggered the defendant's NEPA obligations and that the massive pipeline was authorized without any NEPA review of its environmental impact. The Sierra club also asserted that the Corps Clean Water Act verification was unlawful because it did not evaluate all the impacts of the pipeline. Sierra Club sought a declaration that the alleged federal actions were unlawful and an injunction against Enbridge from constructing the pipeline.
The U.S Army Corps of Engineers is the defendant. The District court denied the preliminary relief and ruled in favor of Enbridge. The district court held that the agencies had permitting authority over only small segments of the private pipeline project and none of the defendant agencies had authority to oversee the entire pipeline as some parts “traverse” private land. The court also held that the
The district court denied the preliminary injunction and then ruled in favor of the defendants. The court also ruled in favor of the CWA verification claim and held that conducting region-based analysis of the effects of the water crossing was appropriate. The Sierra Club appealed.
Facts: Enbridge began planning and permitting for the Flanagan South project in 2011, a 593-mile-long pipeline designed to ship roughly 600,000 barrels of oil per day across Illinois, Missouri, Kansas, and Oklahoma. This new pipeline would expand Enbridge’s capacity to ship crude oil from Flanagan, IL, to Cushing, OK.
This construction would require grading, excavation, or other earth-disturbing activities to inspect and maintain the pipeline itself, as well as support infrastructure such as pumping stations, mainline valves, pipe yards, and access roads. Enbridge had to negotiate with private landowners and obtain easements from the The U.S Army Corps of Engineers and the Bureau of Indian Affairs to cross 34 federally managed parcels of Indian land. The company also sought Corps CWA Nationwide Permit 12 verifications for dredge and fill at 1,950 water crossings.
The Corps and Bureau of Indian Affairs consulted with the United States Fish and Wildlife Service to evaluate potential impact on endangered species. The Biological opinion concluded that building and operating the Flanagan South would likely result in some “take,” but the "take" would not be so extensive as to jeopardize the continued existence of either species. They contained an Incidental Take Statement (ITS) that identified reasonable and prudent measures that Enbridge can take to minimize its impact. By its own terms, it was valid only to the extent that the Corps or Bureau imposed the ITS on Enbridge by incorporating it as a binding, enforceable term of permits or contracts they issued to Enbridge, to which Enbridge in fact adhered.
NEPA analyses were conducted by the Corps CWA when it reissued Permit 12, and by the Corps and Bureau of Indian Affairs for the full Flanagan South project.
The Legal Issue: In light of 42 U.S.C. § 4332(C) of the National Environmental Policy Act (NEPA), are the federal agencies required to conduct NEPA analysis of the entirety of the Flanagan South pipeline, including portions not subject to federal control or permitting?
Holding: No, in light of 42 U.S.C. § 4332(C) , federal agencies are not required to conduct NEPA analysis of the entire Flanagan South pipeline, and NEPA review was only mandated for the parts of the pipeline that crossed lands under federal control.
Rational: The Sierra Club argues that the United States Fish and Wildlife Service's issuance of the Incidental Take Statement with the Corps and Bureau, or the Corps's implementation of the statement as a condition of the Clean Water Act verifications it issued to Enbridge, constituted federal action encompassing all of Flanagan South, mandating whole-pipeline NEPA review.
Section 42 U.S.C.§ 4332(C) lays out the regulatory procedure for the enforcement of NEPA, which federal agencies must prepare and make publicly available. This section of the public law outlines the responsibilities of the Council on Environmental Quality (CEQ), which guides federal agencies in fulfilling their NEPA responsibilities, including preparing Environmental Impact Statements (EISs) that assess a federal action's anticipated direct and indirect environmental effects and consider alternatives to mitigate negative impacts. The Sierra Club asserts that the federal action mandates review of the entire pipeline.
The court held that the issuance of the Incidental Take Statement in this case was not the federal action that would mandate NEPA review, stating that the United States Fish and Wildlife Service was acting in an advisory capacity and was not an agency of action. The Fish and Wildlife Service acted only in its consultative role, offering suggestions to the Corps, which, as the action agency, ultimately decides whether to adopt or approve the ITS. It was the Corps's action, of adopting and incorporating the ITS into the verifications of Flanagan South's water crossings under the Clean Water Act, that qualified as federal action under NEPA. The Corps continued to maintain that it had authority over a small percentage of the pipeline and would retain control and responsibility to evaluate the activities associated with these limited portions, using consultation as a means to do so.
Since the Corps only had agency over small portions of the pipeline, only those approvals count as federal action. The fact that the Service's Biological Opinion assessed the entire Flanagan South project does not undermine the holding concerning the limited scope of NEPA-triggering implementation of the ITS via the verifications. The Sierra Club also attempted to expand on its argument, stating that connected-action and cumulative-action in the Council on Environmental Quality should have triggered NEPA regulations. The court rejected this argument, finding that these “actions” do not require NEPA review to encompass private activity outside the scope of geographically limited federal actions.
Therefore, in light of section 42 U.S.C. § 4332(C) of the National Environmental Policy Act (NEPA), the federal court was not required to conduct NEPA analysis of the entirety of the Flanagan South pipeline, including portions not subject to federal control or permitting.