Link to the case: https://casetext.com/case/citizens-for-clean-energy-v-us-dept-of-interior-1

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI

Please note that the following brief was prepared by a student.

Parties: Citizens for Clean Energy Nonprofit plaintiff and Department of the Interior defendent Procedural History: Citizens for Clean Energy v. United States DOI, 2022 U.S. Dist. LEXIS 145421 is a case that arose out of a lawsuit filed by several groups, including the Center for Biological Diversity, Citizens for Clean Energy, Defenders of Wildlife, EcoCheyene, Montana Environmental Information Center, Sierra Club, the Northern Cheyenne Tribe, and WildEarth Guardians in 2017. The lawsuit challenged the Secretarial Order 3348 ("Zinke Order") issued by then-Secretary of the Interior Ryan Zinke.

The State of California, State of Washington, State of New York, and the State of New Mexico also filed similar lawsuits challenging the Zinke Order. The cases were consolidated by the Court. In 2019, the Court determined that the Zinke Order constituted a major federal action that required environmental review under the National Environmental Policy Act ("NEPA"), and directed the Bureau of Land Management ("BLM") to conduct a NEPA analysis.

In the present case, the plaintiffs are challenging the NEPA analysis conducted by BLM, claiming that the Department of the Interior, Secretary of the Interior, and BLM (collectively, "Federal Defendants") violated NEPA, the Federal Land Policy and Management Act ("FLPMA"), the Mineral Leasing Act ("MLA"), and the trust responsibility between the federal government and the Northern Cheyenne tribe. The plaintiffs have moved for summary judgment, and the Federal Defendants, Defendant-Intervenors the States of Montana and Wyoming, and Defendant-Intervenor the National Mining Association have filed cross-motions for summary judgment.

Facts: In January 2016, Secretary of the Interior Sally Jewell issued Secretarial Order No. 3338 ("Jewell Order"), which established a moratorium on federal coal leasing with certain exemptions and started the preparation of a new programmatic environmental impact statement ("PEIS"). The goal of the PEIS was to identify and evaluate potential reforms to the federal coal leasing program, which had not been reevaluated in more than 30 years. The moratorium aimed to avoid locking in future development of large quantities of coal on unfavorable financial terms, and was driven by concerns about climate change, fair returns on leases, and market conditions.

However, after a change in the presidential administration in 2017, Secretary of the Interior Ryan Zinke issued the Zinke Order, which reversed the Jewell Order and directed the Bureau of Land Management (BLM) to resume issuing coal leases "expeditiously" with terms of 20 years. In 2019, the court ruled that the Zinke Order qualified as a major federal action that triggered NEPA review.

On May 22, 2019, Federal Defendants released a 35-page Draft EA and announced a 15-day public comment period. BLM released its Final Environmental Assessment ("Final EA") on February 25, 2020. BLM concluded that lifting the coal moratorium would not change the cumulative levels of greenhouse gas emissions resulting from coal leasing, would not result in any direct, indirect, or cumulative effects to socioeconomics, and would not result in direct or indirect effects, or cumulative effects to water resources. BLM then issued a Finding of No Significant Impact ("FONSI") based on that Final EA.

Plaintiffs challenged the adequacy of the Final EA and FONSI, alleging that it violated NEPA, FLPMA, the MLA, and the Federal Government's trust obligation to the Northern Cheyenne Tribe. Secretary of the Interior Deb Haaland issued Secretarial Order No. 3398 ("Haaland Order") on April 16, 2021, revoking the Zinke Order and directing relevant agencies to submit a report with their "plan and timeline to reverse, amend, or update" the policies created to implement the Zinke Order. Plaintiffs agreed to a stay in the proceedings given the Federal

Defendants' progress toward developing a replacement for the challenged coal leasing policy. The Court granted a stay of six months, citing a lack of progress in those efforts.

Issue: Does the Bureau of Land Management, under the direction of the Department of Interior, have to consider all direct, indirect, and cumulative impacts of restarting the federal coal-leasing programs on public lands as proscribed in the National Environmental Policy Act "hard look" [42 USC § 4332] requirement?

Holding: Yes, the Bureau of Land Management must consider in their EIS analysis all direct, indirect, and cumulative impacts of restarting the federal coal-leasing programs on public lands as proscribed in the National Environmental Policy Act "hard look" [42 USC § 4332] requirement.

Reasoning: The court found that BLM's analysis was insufficient, as it did not consider all direct, indirect, and cumulative impacts of restarting the federal coal-leasing program. The court found that BLM failed to take the "hard look" NEPA 42 USC § 4332 requires with respect to restarting the federal coal leasing program, as the environmental analysis did not consider the effect of restarting coal leasing from a forward-looking perspective, including connected actions. BLM should have considered the effect of restarting coal leasing from a baseline that reflected the status quo of the pre-existing moratorium on coal leasing. By limiting the scope of the moratorium and any results that may have come of it, the no-action alternative in BLM's Final EA presumed that the results of the Zinke Order would have come to pass in either alternative. To assume that the outcome of the major federal action is inevitable, rather than considering the pre-existing status quo, violates NEPA. The court found that BLM's decision to limit its NEPA 42 USC § 4332 analysis to merely four leases was insufficient and that comprehensive NEPA review is required where the decision to restart the federal coal-leasing program will have broad environmental effects. BLM's failure to analyze the effect of restarting the federal coal-leasing program proved a "a clear error of judgment" for failure to consider "an important aspect of the problem."

Link to the case: https://casetext.com/case/desert-protective-council-nonprofit-corp-v-us-dept-of-the-interior

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI

Please note that the following brief was prepared by a student.

Plaintiffs: Desert Protective Council, a California nonprofit corporation. Parke Ewing, in individual, Jim Pelley, an individual, Laborers' International Union of North America Local Union No. 1184, an organized labor union, John Norton, an individual, Hector Casillas, an individual

Defendants: United States Department of the Interior, Margaret Goodro, Field Manager, BLM El Centro Field Office, Teri Raml, District Manager, BLM California Desert District, United States Bureau of Land Management, Ken Salazar, Secretary, U.S. Department of the Interior

Court: United States District Court for the Southern District of California

Procedural History: Plaintiffs filed a complaint against the Defendants alleging violations of the Administrative Procedures Act ("APA"), Federal Land Policy and Management Act ("FLPMA"), National Environmental Policy Act ("NEPA"), and Bald and Golden Eagle Protection Act ("BGEPA"). The plaintiffs filed a motion for a preliminary injunction. This motion was denied.

The plaintiffs filed a motion for summary judgment. The defendants objected to a declaration from Scott Cashen that the plaintiffs submitted. The court struck Scott Cashen's declaration. The court told the plaintiffs to submit a new brief with a new deadline.

The plaintiffs filed a revised brief for their motion for summary judgment. Defendants filed an opposition and cross-motions for summary judgment.

Facts:

1. The project site is located in the California Desert Conservation Area (CDCA), which was established under a long-range plan for the management, use, development, and protection of public land.

2. Defendant Ocotillo applied to construct and operate the wind energy facility on public land within the CDCA in 2009. The Interior Department approved a decision known as the Record of Decision, which allowed Ocotillo to build 112 wind turbine generators on a 10,151-acre area of public land.

3. The plaintiffs seek a court order to prevent the killing of any raptor or owl by the Bureau of Land Management (BLM) for the project.

4. The plaintiffs argue that the baseline for Swainson's hawks used in the Environmental Impact Statement (EIS) for the Ocotillo wind energy facility lacks scientific integrity.

5. The surveys used to determine the baseline included months when the hawks would not be migrating through the project site, leading to an underestimation of numbers. The calculation of the hawks' use rate of the project area masks higher use levels during peak periods excluded in the survey.

6. The BLM conducted three raptor migration reports and numerous other studies on birds, including the Swainson's hawk.

7. The surveys were conducted from March to May, which captures the migratory period for various bird species. The survey encompassed many raptors such as Cooper's hawk, ferruginous hawk, merlin, and northern harrier. The applicant was only required to prepare one raptor migration survey. The species have different migration patterns with alternating peak periods for the Fall and Spring raptor surveys.

Issue: Is a disagreement on methodology among experts regarding the agency's environmental

impact statement sufficient to demonstrate a violation of 42 U.S.C. § 4332(C))?

Holding: No.

Reasoning:

1. Disagreements among experts or in methodologies employed are generally not sufficient to invalidate an environmental assessment.

2. The plaintiffs have failed to demonstrate that the BLM's selection of certain months to conduct raptor migration surveys was arbitrary or capricious.

3. While NEPA requires agencies to ensure the scientific integrity of their environmental impact statements, it is not the court's role to determine the best scientific methodology. The court cannot substitute its judgment for that of the agency. This reasoning is based on the case Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073.

4. NEPA does not set substantive environmental standards or require specific environmental outcomes. As long as the agency engages in a reasonably thorough discussion and considers relevant factors, courts do not require agreement of opinion among agencies.

5. Courts should determine only if the challenged method had a rational basis and considered the relevant factors.

Dissenting opinion: None.

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

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.”

Link to the case: https://casetext.com/case/ctr-for-biological-diversity-v-bernhardt-10

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI

Please note that the following brief was prepared by a student.

Plaintiff: Center for Biological Diversity et al

Defendant: David Bernardt et al

Court: United States Court of Appeals for the Ninth Circuit

Facts: Hilcorp Alaska, LLC is an energy management company seeking to construct an offshore drilling and production facility to extract oil from under Beaufort Sea, along the coast of Alaska. This facility, referred to as “the Liberty project,” will be the first oil development project completely within federal waters, and be able to recover oil for an estimated fifteen to twenty years. Its projected location lies on land governed by the Outer Continental Shelf Lands Act (OCSLA), which allows the Bureau of Ocean Energy Management (BOEM) to oversee the development of the outer Continental Shelf. This may include the leasing of federal land for oil and gas production. Hilcorp must obtain approval from BOEM to proceed with the Liberty project. Amongst other processes to determine approval, BOEM must draft an environmental impact statement (EIS) complying with NEPA since this project is deemed a “major Federal action.” This draft outlines the environmental consequences of the drilling and oil extraction. It includes a statement of purpose, description of the project, comparisons of the Liberty project to oil extraction alternatives, and a “no action” alternative that explains consequences of not approving the project. BOEM’s Regional Supervisor of Leasing and Plans had approved the Liberty project, but its EIS omitted emission estimates from foreign oil consumption for the analysis of if the project is not undertaken, which resulted in environmental concerns from the public. The Center for Biological Diversity and four other conservation organizations started an action against the agencies, arguing that they failed to comply with NEPA by arbitrarily and capriciously estimating the environmental consequences of the alternatives included in the EIS.

Procedural History: On petition for review of an order of the Bureau of Land Management Interior.

Legal Issue: Is BOEM’s EIS for the Liberty project arbitrary and capricious according to § 4332(C) of NEPA?

Holding: Yes

Reasoning: NEPA requires agencies to evaluate the direct and indirect effects of the proposed action. 40 C.F.R. § 1502.16. But they only need to consider indirect effects that are “reasonably foreseeable,” id. § 1508.8(b), or those that "a person of ordinary prudence would take [] into account in reaching a decision." EarthReports, Inc. v. F.E.R.C., 828 F.3d 949, 955, 424 U.S. App. D.C. 127 (D.C. Cir. 2016). The court affirms that an EIS that does not completely consider the indirect effects of a proposed action violates NEPA. They cite Sierra Club v. Federal Energy Regulatory Comm'n, 867 F.3d 1357, 432 U.S. App. D.C. 326 (D.C. Cir. 2017), where the D.C. circuit held that the Federal Energy Regulatory Commission published an inadequate EIS for a natural gas pipeline project because it did not quantify the indirect greenhouse gas emissions that would result from the burning of the natural gas transported by the pipelines. Id. at 1374. The emissions were an indirect, reasonably foreseeable consequence of the pipeline. The agency should have "either given a quantitative estimate of the downstream greenhouse emissions," or "explained more specifically why it could not have done so."

BOEM acknowledges the omission of foreign oil consumption in two pages of the final EIS. To public comments expressing concern, BOEM responds that "[c]ontext suggests that any change in foreign oil consumption resulting from the pending decision on the Liberty DPP would be very small,” and that if “if BOEM could reliably estimate these marginal differences, such estimates would not change the end results of BOEM's analysis to a meaningful extent." There is no evidence cited for these conclusions nor further elaboration. BOEM additionally references a report explaining that "[e]xcluding the foreign oil and gas markets is reasonable" [**22] because "[o]il consumption in each country is different, and BOEM does not have information related to which countries would consume less oil." But again there is no concrete research cited. The court reiterates that emissions resulting from foreign consumption of oil are reasonably foreseeable indirect effects of the Liberty project, thus estimates are required by NEPA, which BOEM insufficiently provided. Even if BOEM was unable to quantify emissions which is possible in some cases, the court affirms that BOEM should have thoroughly explained why obtaining the estimate was impossible.

The court cites studies like one conducted by the Stockholm Environment Institute to also affirm that there is research describing the greenhouse gas effect of increasing domestic oil supply on foreign consumption and the feasibility of its estimation. BOEM claimed that these studies rely on "simplistic assumptions that [fall] well short of the detailed model that BOEM used to analyze the U.S. energy market," but the justification for this conclusion is unclear. Even if no further explanation was needed, one surely is needed for BOEM’s conclusion that the “no-action” alternative of not drilling will result in more carbon emissions. The court concludes that this statement is implausible and attributes that to the lack of use of expertise, citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).

BOEM failed to provide a sufficient analysis of the Liberty project’s “no-action” alternative and its indirect effects in its final EIS, which violates NEPA 42 U.S.C. § 4332(C).

Dissenting opinion: None

Link to the case: https://casetext.com/case/state-v-nuclear-regulatory-commn

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap108-sec10101