Amicus Curiae Brief — Norton v. Southern Utah Wilderness Alliance

Supreme Court. U.S

FILED

Mm

v FEB 17 2004 |

No. 03-101 _ OFFICE OF THE CLERK

$$

IN THE

Supreme Court of the United States

GALE NORTON, Secretary of the Interior, et a/.,

Petitioners,

v.

SOUTHERN UTAH WILDERNESS ALLIANCE, et a/.,

Respondents.

On Wait oF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMICI CURIAE BRIEF OF DEFENDERS OF

WILDLIFE AND PUBLIC CITIZEN

IN SUPPORT OF RESPONDENTS

KATHERINE A. MEYER

Counsel of Record

Eric R. GLITZENSTEIN

Of Counsel

MEYER & GLITZENSTEIN

1601 Connecticut Ave., N.W.

Suite 700

Washington, D.C. 20009

(202) 588-5206

185798 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF THE ARGUMENT

ARGUMENT

A Claim Brought Under The “Unreasonably

Delayed” Prong Of Section 706(1) Does Not

Depend On A Separate Mandatory Statutory

Obligation To Undertake The Particular

The BLM’s Obligation To Prepare A

Supplemental EIS Stems From A Mandatory

Duty Imposed By The Binding Council On

Environmental Quality Regulations. ......

CONCLUSION

10

il

TABLE OF CITED AUTHORITIES

FEDERAL CASES i

Andrus v. Sierra Club,

G65 U.S. 3479 CIDGTE) 2 6s00k5s0eeeene 10

California Department of Health

Services v. Babbitt,

46 F. Supp. 2d 13 (D.D.C. 1999) ............, 13

Cobell v. Norton,

240 F.3d 1081 (D.C. Cir. 2001) .............. 7

Corridor H Alternatives, Inc. v. Slater,

166 F.3d 368 (D.C. Cir. 1999) ............... 13,14

Cutler v. Hayes,

818 F.2d 879 (D.C. Cir. 1987) ............... 8

Friends of Yosemite Valley v. Norton,

194 F. Supp. 2d 1066 (E.D. Cal. 2002) ........ 14

General Motors Corp. v. United States,

496 U.S. SSO (IGOR)... nc cccsccceneeee 5, 6

Grand Canyon Air Tour Coalition vy. FAA,

154 F.3d 455 (D.C. Cir. 1998) ............... 8

In re International Chemical Workers Union,

958 F.2d 1144 (D.C. Cir. 1992) .............. 7

ill

Cited Authorities

Interstate Natural Gas Association of

America v. FERC,

285 F.3d 18 (D.C. Cir. 2002) ................

Jenkins v. McKeithen,

DEED .cccccccccccoescocecces

Jersey Heights Neighborhood Association

v. Glendening, .

174 F.3d 180 (4th Cir. 1999) .............4-..

~ Marsh v. Oregon Natural Resources Council,

ED, <ccccessecesesesceccss

Mashpee Wampanoag Tribal Council, Inc.

v. Norton,

336 F.3d 1094 (D.C. Cir. 2003) ...........---.

Ohio Forestry Association v. Sierra Club,

TEE cccccsccccceccccccececes

Oil, Chemical and Atomic Workers Intern.

Union v. Zegeer,

768 F.2d 1480 (D.C. Cir. 1985) .............

Potomac Electrical Power Co. v. ICC,

702 F.2d 1026 (D.C. Cir. 1983) ...........44-.

Public Citizen Health Research Group v. Auchter,

702 F.2d 1150 (D.C. Cir. 1983) ............-..

Page

11

iv

Cited Authorities

Public Citizen Health Research Group v. Chao,

314 F.3d 143 (3d Cir. 2002) .................

Public Citizen Health Research Group v.

Commissioner, Food and Drug Administration,

Paw Was 20 GE. GER FED ec ccicccccacceces

Sierra Club v. Slater,

120 F.3d 623 (6th Cir. 1997) ................

Sierra Club v. Thomas,

828 F.2d 783 (D.C. Cir. 1987) ...............

Sierra Club v. Watkins,

808 F. Supp. 852 (D.D.C. 1991) .............

Southern Utah Wilderness Alliance v. Norton,

301 F.3d 1217 (10th Cir. 2002) ..............

Telecommunications Research & Action v. F.C.C.,

750 F.2d 70 (D.C. Cir. 1984) ................

United Steelworkers of America v. Pendergrass,

819 F.2d 1263 (3rd Cir. 1987) ...............

US Ecology, Inc. v. United States Department

of the Interior,

- 0s F506 SOL. Cie, FOOD nn cccccccccccces

Page

6

14

10

13

Vv

Cited Authorities

Page

Valley Community Preservation Commission

v. Mineta,

231 F. Supp. 2d 23 (D.D.C. 2002) ............ 13

Warth v. Seldin,

GEE, GIG cctcccctccvecsscvccness 11

FEDERAL STATUTES

S UBL. § SSBB) on ccccccccccccccccccccces passim

SUBE. OTEED vscccccesscccescecsosccces passim

CUBE. OTE occccccccanccccccessicccsse 1,12

42 US.C. § 4321, ef seg. 2.0... - cece ceeeeeees 1, 3, 10

43 U.BL..§ CBSA) «oc cccccccccccccccscces 10

43 UBC. O POIGERAD 2. cccccccccccccccccess 6

GDULBL. 6 ITER 2c ccccccccccscccesscecetes 5

GB UGC. 6 ITED oc cccccccccscccccccccccccs 5

vi

Cited Authorities

Page

FEDERAL REGULATIONS

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Pe Ot SE in kWiedowdesuacseddcediudues 10

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ees ee 2

SO Cia © BSED oo ccc ccccccccccccccess 3,11

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INTEREST OF THE AMICI CURIAE'

Defenders of Wildlife is a non-profit organization

dedicated to the protection of native animals and plants in

their natural communities. It focuses its actions on curtailing

two of the most serious environmental threats to the planet:

the accelerating rate of extinction of species, and habitat

alteration and destruction. Defenders of Wildlife has

thousands of members who regularly enjoy recreating in the

areas administered by the Bureau of Land Management that

are at issue in this case.

Defenders of Wildlife also regularly relies on the judicial

review provisions of the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 706(1), (2), and the requirements of

the National Environmental Policy Act (“NEPA”), 42 U.S.C.

§ 4321, et seg., as well as the Council on Environmental

Quality’s binding regulations, 40 C.F.R. §§ 1500-1508, in

bringing cases in federal court to ensure compliance with

laws enacted to protect the environment.

Public Citizen, inc., is a non-profit advocacy group with

approximately 160,000 members nationwide. It appears

before Congress, administrative agencies, and the courts on

a wide range of issues. Prominent among Public Citizen's

concerns is combating regulatory delay, particularly in the

promulgation of critically important public health and safety

regulations (for example, delays by the Occupational Safety

and Health Administration in promulgating workplace safety

1. None of the attorneys for the parties in this case authored

any of this amici brief, and no one other than amici made any

monetary contribution to the preparation or submission of the brief.

Amici have received the written consent of the parties to file this

brief, and such consents are being lodged herewith.

2

and health standards, and delays by the Food and Drug

Administration in protecting the public from adverse effects

of prescription and over-the-counter drugs).

In pursuit of this objective, Public Citizen has, too often,

found it necessary to invoke section 706(1) of the APA to

challenge unreasonable delay by agencies in concluding

matters before them — delay that often is measured in years,

if not decades. Indeed, many of the unreasonable delay cases

cited later in this brief were filed by Public Citizen lawyers.

Public Citizen is therefore vitally concerned that the

availability of the APA as a tool to counter extreme agency

delays not be limited by the Court’s decision in this case.

Defenders of Wildlife and Public Citizen (hereinafter

collectively referred to as “Amici’’) are submitting this amicus

brief for two reasons. First, Amici wish to ensure that, in

reviewing the narrow issues under review, this Court does

not inadvertently adopt a view of the scope of the

“unreasonable delay” prong of section 706(1) that, although

not implicated in this particular case or necessary for the

Court’s review, is nevertheless misstated in the brief that has

been submitted by the government. Second, Amici wish to

clarify that the agency’s duty in this case to prepare a

Supplemental Environmental Impact Statement (“SEIS”)

stems from the requirement in the binding Council on

Environmental Quality (“CEQ”) regulations that all agencies

“shall prepare” an SEIS — and make a judicially reviewable

decision as to whether additional environmentally protective

measures are required — whenever “[t]here are significant

new circumstances or information relevant to the

environmental concerns and bearing on the proposed action

or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii).

3

SUMMARY OF THE ARGUMENT

I. Because the Administrative Procedure Act, 5 U.S.C.

§ 555(b), requires agencies to conclude proceedings

“within a reasonable time,” and it further provides that

a federal court “shall ... compel agency action...

unreasonably delayed,” 5 U.S.C. § 706(1), a plaintiff with

Article III standing may bring a claim challenging an agency’s

failure to conclude an agency proceeding within a reasonable

time, whether or not the agency has a mandatory obligation

under an additional statute to undertake that particular

proceeding.

Il. The binding regulations of the Council

on Environmental Quality (“CEQ”) require an agency to

prepare a Supplemental Environmental Impact Statement

(“SEIS”) pursuant to the National Environmental Policy Act,

42 U.S.C. § 4321, et seq., whenever “there are significant

new circumstances or information relevant to the

environmental concerns and bearing on the proposed action

or its impacts,” 40 C.F.R. § 1502.9(c)(ii), and the CEQ

regulations further require that, if such circumstances are

present, the agency must, in connection with the preparation

of the SEIS, also issue a “Record of Decision” as to whether,

and to what extent, the agency will modify its action to take

such new information into account. Therefore, a federal

court may entertain a plaintiff’s claim, pursuant to 5 U.S.C.

§ 706(1), that the agency has failed to prepare the requisite

SEIS.

4

ARGUMENT

I. AClaim Brought Under The “Unreasonably Delayed”

Prong Of Section 706(1) Does Not Depend On A

Separate Mandatory Statutory Obligation To

Undertake The Particular Action.

Section 706 of the APA provides that a reviewing court

“shall ... compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1) (emphasis added).

In the course of ruling that the plaintiffs in this case

adequately pled a claim for relief under this provision, the

Court of Appeals for the Tenth Circuit stated that “[{u]nder

either the ‘unreasonably delayed’ or ‘unlawfully withheld’

prongs of § 706(1), federal courts may order agencies to act

only where the agency fails to carry out a mandatory,

nondiscretionary duty,” and that “[b]y contrast, if a duty is

not mandated, or if an agency possesses discretion over

whether to act in the first instance, a court may not grant

relief under § 706(1).” 301 F.3d 1217, 1226 (10" Cir. 2002)

(emphasis added). In its brief to this Court, the government

states that Section 706(1) is only available “to compel a

discrete final action that an agency is required by law to

take or complete.” Government’s Brief (“Gov’t Brf.”)

at 24 (emphasis added).

These statements concerning the scope of Section 706(1)

may properly apply to actions seeking to compel agency

action “unlawfully withheld.” Furthermore, in this case,

plaintiffs have certainly asserted that the Bureau of Land

Management (“BLM”) does have a mandatory duty

under the Federal Land Management Act to “manage”

Wilderness Study Areas “in a manner so as not to impair the

suitability of such areas for preservation as wilderness,”

5

43 U.S.C. § 1782(c), and also to “manage the public lands

_.. ip accordance with the [agency’s] land use plans,”

43 U.S.C. § 1732(a). See Second Amended Complaint,

Claims Five and Six. However, under long standing

precedent, an agency need not have a mandatory duty,

independent of the APA, to take some particular action in

order for plaintiffs to properly allege a claim under § 706(1)

that an agency has “unreasonably delayed” taking that action.

On the contrary, because the APA itself imposes a

separate obligation on all agencies to conclude matters

“within a reasonable time,” 5 U.S.C. § 555(b), there is no

additional requirement that a plaintiff alleging a violation

of this command point to some other mandatory statutory

duty to undertake the particular action at issue. Rather,

whether the agency has a mandatory duty under its organic

statute to take a particular action, or has been petitioned by a

member of the public to undertake a discretionary action, or

the agency itself has decided to undertake such an action in

the exercise of its statutory authority, a plaintiff with Article

III standing may challenge the agency’s failure to complete

any such undertaking “within a reasonable time.” And, if the

court agrees that the delay is “unreasonable,” then it “shall”

compel the agency to make a final decision, one way or

another, 5 U.S.C. §§ 555(b), 706(1).

As this Court observed in General Motors Corp. v.

United States, 496 U.S. 530, 539 (1990), section 555(b) of

the APA itself imposes this “mandate” on agencies, since the

public affected by agency proceedings — whether rulemaking,

licensing, or ratemaking — has an overriding interest in having

ongoing proceedings brought to some conclusion “within a

reasonable time,” so that the affected public is not indefinitely

6

left in limbo as to an agency’s intentions. As the Court of

Appeals for the D.C. Circuit has explained, “quite simply,

excessive delay saps the public confidence in an agency’s

ability to discharge its responsibilities and creates uncertainty

for the parties, who must incorporate the potential effect of

possible agency decisionmaking into future plans.” Potomac

Elec. Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C. Cir.

1983).

Indeed, in General Motors, this Court recognized that,

pursuant to section 555(b), the Environmental Protection

Agency must approve a state’s revised implementation plan

under the Clean Air Act “within a reasonable time,” once the

agency determines that the state’s revision meets the

substantive requirements of the underlying statute, despite

the fact that the EPA has a great deal of discretion under the

Statute to determine whether the state has met those

requirements. General Motors, 496 U.S. at 539-41; see also

e.g.,42 U.S.C. § 7410(a)(2) (state implementation plans shall

provide for “appropriate” devices, methods, systems, and

procedures “necessary” to monitor data on ambient air

quality); see also Mashpee Wampanoag Tribal Council, Inc.

v. Norton, 336 F.3d 1094, 1099-1100 (D.C. Cir. 2003) (district

court has jurisdiction pursuant to 5 U.S.C. §§ 555(b), 706(1),

to decide whether agency has unreasonably delayed

processing putative tribe’s petition for recognition); Public

Citizen Health Research Group v. Chao, 314 F.3d 143, 150-

51 (3d Cir. 2002) (recognizing that section 706(1) creates a

right of action to review unreasonable delay in promulgatioz:

of OSHA occupational exposure standards despite agency’s

“quintessential discretion” to allocate resources); Jnterstate

Natural Gas Ass'n of America v. FERC, 285 F.3d 18, 57 (D.C.

Cir. 2002) (once agency announces intention to revisit its

own discretionary policy and receives comment on that

7

proposal, it is under a duty to make a final decision within a

reasonable time); Cobell v. Norton, 240 F.3d 1081, 1096-99

(D.C. Cir. 2001) (Department of Interior has fiduciary duty,

irrespective of any statutory obligation, to provide Indian

trust fund beneficiaries an accounting of their funds within a

reasonable time); /n re International Chemical Workers

Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992) (per curiam)

(court has jurisdiction to hear plaintiffs’ complaint that

Occupational Health and Safety Administration unreasonably

delayed final decision on rulemaking petition for

occupational exposure standard); United Steelworkers of

America v. Pendergrass, 819 F.2d 1263, 1270 (3d Cir. 1987)

(court has authority under unreasonable delay provisions of

the APA to order agency to issue a workplace standard by a

specific date); Oil, Chemical and Atomic Workers Intern.

Union v. Zegeer, 768 F.2d 1480, 1484-85 (D.C. Cir. 1985)

(court has jurisdiction to decide whether Mine Safety and

Health Administration response to petition for standard was

unreasonably delayed); Public Citizen Health Research

Group v. Commissioner, Food and Drug Administration, 740

F.2d 21, 34 (D.C. Cir. 1984) (court has jurisdiction to decide

whether agency has unreasonably delayed acting on citizen

petition for warning label on aspirin products); Public Citizen

Health Research Group v. Auchter, 702 F.2d 1150, 1158

(D.C. Cir. 1983) (court has jurisdiction under APA sections

555(b) and 706(1) to compel agency to complete rulemaking

regarding occupational exposure standards within a

reasonable time).

In its brief to this Court, the government acknowledges

that there is no need for a separate mandatory duty with

respect to several kinds of cases. Gov’t Brf. at 20. Thus, it

states that “Section 706(1) permits a court to order an agency

to respond to a rulemaking petition within a reasonable time

8

... Or to make a ‘final determination’ on an administrative

complaint. . . or to act on a permit application.” /d. (internal

citations omitted). However, the government omits an

extremely important category from this list: the situation

where the agency on its own initiates a specific administrative

proceeding — even a discretionary one — but fails to bring

it to a conclusion “within a reasonable time.” 5 U.S.C.

§ 555(b).

In such cases, pursuant to 5 U.S.C. §§ 555(b) and 706(1),

a court may review a proper plaintiff’s complaint that the

agency has “unreasonably delayed” concluding that

proceeding, and, should the court agree with the plaintiff’s

contention, pursuant to section 706(1), the court “shall” order

the agency to reach a final decision. See, e.g., Interstate

Natural Gas Ass'n of America, 285 F.3d at 57; see also Grand

Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 478 (D.C.

Cir. 1998) (even though agency had discretion to determine

best way to reduce aircraft noise over Grand Canyon, once

agency issued Advance Notice of Proposed Rulemaking,

court may entertain petition to compel the agency to complete

the proceeding within a reasonable time); Cutler v. Hayes,

818 F.2d 879, 895 (D.C. Cir. 1987) (“[o]nce the FDA elected

to respond to its legislative directive [that over the counter

drugs be both safe and effective] by establishing the OTC

[over-the-counter] drug review program, the APA imposed

an obligation to proceed with reasonable dispatch,” (relying

on 5 U.S.C. §§ 555(b), 706(1))); Telecommunications

Research & Action v. F.C.C., 750 F.2d 70, 73, 76-77 (D.C.

Cir. 1984) (where agency has issued its own “notice of

inquiry” and solicited public comment on a particular matter,

it must conclude that proceeding within a reasonable time).

9

As Judge D.H. Ginsburg succinctly explained in Sierra

Club v. Thomas, 828 F.2d 783, 794 (D.C. Cir. 1987):

Unlike claims alleging agency recalcitrance in the

face of a ‘clear statutory duty,’ the petitioner

alleging ‘unreasonable delay’ does not contend

that agency inaction violates a clear duty to take

a particular action by a date certain. Instead .. .

the claim is that while the agency may have

discretion over whether to act at all, it has

exercised that discretion by deciding that it would

determine what action, if any, to take, and that

it must now do so.

(Emphasis added); see also id. (“[A]gencies most often fall under

this duty of timeliness as a result of the APA s broad prohibition

against ‘unreasonable delay[,|’” (citing 5 U.S.C. §§ 555(b),

706(1)), [but] “[iJ]n other situations, the substantive statute itself

may impose the obligation.”’) (emphasis added).?

Of course, in an “unreasonable delay” case, all the

reviewing court may do is require the agency to make a final

decision one way or another — i.e., the court may not compel

any particular substantive result. However, the court may

certainly exercise jurisdiction over that case, whether or not

the agency has some additional statutory obligation — apart

from sections 555(b) and 706(1) of the APA — to undertake

or complete that particular proceeding. Accordingly, Amici

respectfully urge that, whatever ruling this Court issues in

this case, there is no reason for it to disturb — or even to

2. As the foregoing cases demonstrate, the mere fact that

§ 555(b) states that the agency shall complete matters “presented to

it” within a reasonable time does not foreclose a § 706(1) claim where

the agency-itself has initiated the proceeding.

/

10

address — this well established rule of administrative law,

especially when this particular issue is not necessary to the

resolution of this case.

Il. The BLM’s Obligation To Prepare A Supplemental

EIS Stems From A Mandatory Duty Imposed By

The Binding Council On Environmental Quality

Regulations.

Amici also wish to stress that whether the Bureau of Land

Management is obligated to prepare a Supplemental EIS in this

case is dictated by NEPA, 42 U.S.C. § 4332(2)(C), and the CEQ

regulations that implement that statute, 40 C.F.R. § 1500.1,

et seq. As this Court has noted, Andrus v. Sierra Club, 442 U.S.

347, 351 (1979), and the government acknowledges, Gov’t Brf.

at 43, these regulations apply to all federal agencies. See also

Sierra Club v. Watkins, 808 F. Supp. 852, 859 (D.D.C. 1991)

(The CEQ regulations “define the terms of NEPA and detail the

responsibilities of federal agencies.”’).

NEPA was enacted to “encourage productive and enjoyable

harmony between man and his environment.” 42 U.S.C. § 4321.

Its basic purpose is to “help public officials make decisions that

are based on [an] understanding of environmental consequences,

and take decisions that protect, restore, and enhance the

environment.” 40 C.F.R. § 1500.1(c). To accomplish these

objectives, NEPA mandates that “to the fullest extent possible”

agencies “shall” prepare a “detailed statement” regarding all

“major Federal actions significantly affecting the quality of the

human environment... .” 42 U.S.C. § 4332(2)(C) (emphasis

added). This Environmental Impact Statement (“EIS”) must

analyze the environmental impact of the proposed action, as

well as alternative courses of action that would have fewer

adverse impacts. /d.

a

11

The CEQ regulations further provide that an agency “shall”

prepare a Supplemental EIS (“SEIS”) when “/t/here are

’ significant new circumstances or information relevant to the

environmental concerns and bearing on the proposed action or

its impacts.” 40 C.F.R. § 1502.9(c)(ii) (emphasis added).

As with the initial EIS, the purpose of an SEIS is “to serve as an

action-forcing device to insure that the policies and goals

defined in [NEPA] are infused into the ongoing programs and

actions of the Federal Government.” 40 C.F.R. § 1502.1

(emphasis added). Indeed, NEPA and its obligations apply to

“major federal actions,” including “new and continuing

activities,” as well as “new or revised agency rules, regulations,

plans, policies, or procedures.” 40 C.F.R. § 1508.18 (a) (emphasis

added).

Accordingly, the government wrongly states that NEPA

imposes no “obligation on BLM to conduct an environmental

analysis divorced from a proposed ‘major Federal action.’”

Gov’t Brf. at 46 (emphasis added). On the contrary, because the

plaintiffs have alleged that increased use of off-road vehicles is

in fact causing significant environmental damage to the BLM

lands at issue, and that BLM is also required by law to monitor

the effects of ORV use on public lands, the plaintiffs have

sufficiently alleged a viable claim pursuant to NEPA’s

implementing regulations and 5 U.S.C. § 706(1), that the courts

may compel the production of an SEIS due to the presence of

significant new information and circumstances. See also Warth

v. Seldin, 422 U.S. 490, 501 (1975) (in deciding a motion to

dismiss the court “must accept as true all material allegations

of the complaint”); Jenkins v. McKeithen, 395 U.S. 411, 421-

22 (1969) (the complaint must be “liberally construed in favor

of the plaintiff[s]}”).

12

Whether an SEIS is ultimately required here goes to the

merits of the plaintiffs’ claim, not to whether the district court

has jurisdiction even to hear that claim. See, e.g., Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 375 (1989)

(whether SEIS was required is controlled by the “arbitrary

and capricious” standard of 5 U.S.C. § 706(2)). However, as

this Court explained in Marsh, an agency must prepare a

Supplemental EIS “if the new information is sufficient to

show that the remaining action will ... ‘affect the

environment’ in a significant manner or to a significant extent

not already considered.” 490 U.S. at 374 (1989) (emphasis

added) (internal citations omitted). In addition, the CEQ

regulations provide that, where either an EIS or SEIS is

required, the agency “shall prepare a concise public record

of decision” which “shall: (a) [s]tate what the decision was{],

(b) [ijdentify all alternatives considered by the agency in

reaching its decision, specifying the alternative or alternatives

which were considered to be environmentally preferable,”

and (c) “[s]tate whether all practicable means to avoid or

minimize environmental harm from the alternative selected

have been adopted and, if not, why they were not.” 40 C_F.R.

§ 1505.2 (emphasis added).’

In short, under the CEQ regulations, where an SEIS is

required, it must be accompanied by a record of decision —

known as an “ROD” in NEPA parlance — stating whether,

3. The Court’s statement in Ohio Forestry Ass'n v. Sierra Club,

523 U.S. 726, 737 (1998), in the context of discussing the ripeness

of a NEPA claim, that “a person with standing who is injured by a

failure to comply with NEPA procedure may complain of that failure

at the time the failure takes place, for the claim can never get riper,”

further reinforces the justiciability of a plaintiff's claim that an agency

has completely failed to prepare an SEIS, as required by the CEQ

regulations.

13

and the extent to which, the agency has decided to modify

its action in light of the “new information” bearing on

the adverse environmental impacts of that action. 40 C.F.R.

§ 1505.9; see, e.g., US Ecology, Inc. v. United States

Department of the Interior, 231 F.3d 20, 22 (D.C. Cir. 2000)

(“NEPA regulations require the agency to prepare a Record

of Decision justifying its ultimate decision” following

preparation of an EIS) (emphasis added); Corridor H

Alternatives, Inc. v. Slater, 166 F.3d 368, 371 (D.C. Cir. 1999)

(“In a case requiring an EIS, the agency must prepare a

‘concise public record of decision’ that identifies all the

alternatives it has considered and describes all factors it has

taken into account in reaching its decision,” (quoting

40 C.F.R. § 1505.2)) (emphasis added); Valley Community

Preservation Commission v. Mineta, 231 F. Supp. 2d 23, 39

(D.D.C. 2002) (“In situations where an EIS is required, the

agency is required to prepare ‘a concise public record of

decision’ that describes the factors it considered in making

its decision, and must identify ‘all alternatives considered

by the agency in reaching its decision, specifying the

alternative or alternatives which were considered,” (quoting

40 C.F.R. § 1505.2)); California Department of Health

Services v. Babbitt, 46 F. Supp. 2d 13, 21 (D.D.C. 1999)

(“NEPA regulations provide that the agency announce-its

decision among the alternatives analyzed in the EIS in the

ROD,” (citing 40 C.F.R. § 1505.2)), vacated in part on other

grounds, 231 F.3d 20 (D.C. Cir. 2000); see also 40 C.F.R.

§ 1502.1 (NEPA serves as “an action-forcing device”).

Accordingly, the government’s assertion that the district

court had no jurisdiction over the plaintiffs’ NEPA claim

because an SEIS itself is not an “agency action” that can be

compelled by the court pursuant to 5 U.S.C. § 706(1), Gov't

Br. at 44, is also wrong. If plaintiffs are correct that an SEIS

14

must be prepared under the CEQ regulations because there

is significant new evidence of environmental impacts never

previously considered by the agency, then the regulations also

unequivocally require that an ROD must be prepared by the

agency, as in all “cases requiring environmental impact

statements.” 40 C.F.R. § 1505.2. In turn, it is well-established

that an ROD is a final agency action that is judicially

reviewable under the APA. See, e.g., Sierra Club v. Slater,

120 F.3d 623, 631 (6" Cir. 1997) (it is “well-established that

a final EIS or the ROD issued thereon constitute the ‘final

agency action’ for purposes of the APA”); Jersey Heights

Neighborhood Ass'n v. Glendening, 174 F.3d 180, 187

(4" Cir. 1999) (the “designation of the ROD as final agency

action under the APA is generally recognized”); see also

Corridor H Alt., 166 F.3d at 374 (reviewing a ROD); Friends

of Yosemite Valley v. Norton, 194 F. Supp. 2d 1066, 1080

(E.D. Cal. 2002), rev'd in part on other grounds, 348 F.3d

789 (9" Cir. 2003) (“The court thus concludes that

Defendants’ decision as set forth in the... ROD... is now

ripe for review”). Hence, even under the government’s own

analysis as to when claims may be brought under section

706(1) of the APA — i.e., where the court is being asked for

relief that will result in final agency action reviewable under

section 706(2) of the APA — a claim that the CEQ standards

for preparing an SEIS and accompanying ROD are satisfied

is Clearly cognizable.

Finaily, it is important to recognize that, if such claims

were not cognizable in any fashion, except when the

government itself opts to embark on a new decisionmaking

process — as the government would have this Court

rule — this would completely undermine the basic purpose of

NEPA. As this Court explained in Marsh, “[i]t would be

incongruous” with NEPA “for the blinders to adverse

15

environmental effects, once unequivocally removed, to be

restored prior to the completion of the agency action

simply because the relevant proposal has received initial

approval.” 490 U.S. at 371 (emphasis added). Yet, under

the government’s proposed approach, an agency would

be completely free, following initial project approval,

to “restore” the “blinders” even to devastating new

environmental impacts, as long as the agency insists that it

has made no new decision based on those impacts. Indeed,

the government’s approach has the truly perverse effect of

rewarding an agency for remaining as blind as possible to

new evidence of environmental problems, since, if it does

so, it can avoid any judicial review of its NEPA compliance.

However, it is impossible to reconcile that result with NEPA’s

purposes, as construed by this Court in Marsh, and, contrary

to the government’s insistence, it certainly is not a result that

is dictated by the APA.

CONCLUSION

Amici respectfully submit that the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

KATHERINE A. MEYER

Counsel of Record

Eric R. GLITZENSTEIN

Of Counsel

Meyer & GLITZENSTEIN

1601 Connecticut Ave., N.W.

Suite 700

Washington, D.C. 20009

(202) 588-5206