National Environmental Policy Act: Judicial Review and Remedies
September 22, 2021
National Environmental Policy Act: Judicial Review
and Remedies
According to the U.S. Department of Justice, the National
right to challenge an action in court, including by having
Environmental Policy Act of 1969 (NEPA) is the most
standing.
frequently litigated federal environmental statute. A 2020
study estimated that, between 2001 and 2013, plaintiffs
Common NEPA Claims
challenged 1 in 450 agency actions taken to comply with
In general, NEPA claims challenge an agency’s level of
NEPA, with an average of 115 NEPA cases annually.
NEPA analysis or the sufficiency of its documented review.
Although NEPA does not provide for judicial review,
courts allow challenges under the Administrative Procedure
Failure to Prepare an EIS. Federal actions not resulting in
Act (APA). This In Focus describes how the federal courts
significant environmental impacts do not require an EIS.
have interpreted and limited the availability of judicial
When an agency approves a proposed action without
review for claims against federal agencies and established
preparing an EIS, plaintiffs often challenge the agency’s
remedies for successful claims.
decision, asserting that the action will result in significant
impacts and therefore requires preparation of an EIS. For
Background
example, if an agency prepares an EA and then issues a
NEPA requires federal agencies to analyze the impacts of
FONSI, a court may examine whether agencies took the
proposed “major Federal actions significantly affecting the
requisite “hard look” at the environmental effects to decide
quality of the human environment.” 42 U.S.C.
whether the agency should have prepared an EIS. In one
§ 4332(2)(C). This requirement serves the dual purpose of
such case, the U.S. Court of Appeals for the Ninth Circuit
informing the agency decisionmaking process, although not
concluded that a single sentence analysis of a proposed
demanding agencies to change their proposed actions, and
whale hunt quota’s effects on the overall whale population
informing the public of a proposed action’s effects. The
did not justify issuance of a FONSI and ordered the agency
level of analysis required depends on the environmental
to prepare an EIS. Anderson v. Evans, 314 F.3d 1006 (9th
impacts’ significance. Agencies prepare environmental
Cir. 2002).
impact statements (EISs) if there are significant impacts.
An agency may also draft an environmental assessment
Improper Reliance on Categorical Exclusions. An
(EA) to determine whether to prepare an EIS. Based on an
agency may determine that a proposed action falls into a
EA, an agency will prepare an EIS or issue a “Finding of
“categorical exclusion” (CE or CX). CXs are actions that
No Significant Impacts” (FONSI). NEPA also established
generally do not have significant impacts and therefore do
the Council on Environmental Quality (CEQ), which issues
not require an EIS absent extraordinary circumstances.
regulations and guidance detailing how federal agencies
Some disputes involve an agency’s decision to rely on a CX
must implement NEPA. For more details, see CRS In Focus
rather than prepare an EA or EIS. Courts may scrutinize
IF11549, The Legal Framework of the National
whether the type of project at issue falls within the scope of
Environmental Policy Act.
a CX. For example, the Ninth Circuit held that the Federal
Highway Administration improperly relied on a CX to
Basis for Judicial Review
approve a highway interchange, as the magnitude of the
NEPA does not provide for judicial review of federal
project went beyond the scope of projects eligible for a CX.
agency compliance with the act. Instead, the federal courts
West v. Sec’y of Dep’t of Transp., 206 F.3d 920 (9th Cir.
allow challenges to NEPA compliance under the APA.
2000). In addition, when an agency fails to explain the
Generally, plaintiffs claim that an agency’s actions were
decision to rely on a CX or why “extraordinary
“arbitrary, capricious, an abuse of discretion, or otherwise
circumstances” that would trigger further review do not
not in accordance with law” because of an agency’s failure
exist, courts have found an APA violation. See, e.g., United
to meet NEPA’s requirements. For more information, see
States v. Coal. for Buzzards Bay, 644 F.3d 26 (1st Cir.
CRS Legal Sidebar LSB10558, Judicial Review Under the
2011); Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d
Administrative Procedure Act (APA).
851 (9th Cir. 1999).
A number of factors constrain judicial review. First, the
Inadequate Analysis in an EIS. After an agency issues a
disputed action must be “final,” and the legal challenge to
decision based on an EIS or EA, stakeholders have
that action brought within six years, as set out by the APA.
challenged the adequacy of the environmental review
Second, Congress may limit the scope of NEPA claims,
supporting the decision. Such parties often argue that the
either directly by addressing the availability of judicial
agency failed to consider certain impacts or failed to fully
review or indirectly by limiting NEPA’s applicability to a
consider the weight of the impacts reviewed. In these cases,
particular federal action. Third, the plaintiff must have the
courts review the agency’s NEPA analysis to determine
whether the agency’s decision was arbitrary or capricious
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National Environmental Policy Act: Judicial Review and Remedies
under the APA. For example, the Ninth Circuit ruled that
less likely to vacate the agency action if they find that the
the Bureau of Ocean Energy Management violated the APA
agency will likely cure the violation or that vacatur would
by failing to quantify in its EIS the indirect greenhouse gas
result in substantially disruptive effects on the project.
emissions that would result from offshore oil exploration
Compare Vecinos para el Bienestar de la Comunidad
and production along the coast of Alaska. Ctr. for
Costera v. FERC, 2021 WL 3354747 (D.C. Cir. 2021)
Biological Diversity v. Bernhardt, 982 F.3d 723 (9th Cir.
(remanding without vacatur), with Standing Rock Sioux
2020). See also Am. Rivers & Ala. Rivers Alliance v. FERC,
Tribe v. USACE, 985 F.3d 1032 (D.C. Cir. 2021)
895 F.3d 32 (D.C. Cir. 2018) (holding that FERC’s NEPA
(upholding district court decision to vacate based on prior
analysis failed to consider the cumulative impact of
failures to cure NEPA violations).
previous power plant operations when considering licensing
a hydroelectric project).
In some cases, vacating an agency decision does not grant
full relief to plaintiffs. In these cases, courts may grant
Failure to Prepare a Supplemental EIS. CEQ’s
injunctions to stay part or all of a project while an agency
regulations require agencies to prepare an SEIS when the
completes the requisite NEPA analysis. Before issuing an
agency makes substantial changes to a proposal or learns of
injunction, courts generally consider whether a plaintiff has
“significant new circumstances or information relevant to
demonstrated (1) irreparable injury; (2) other remedies are
environmental concerns” after completion of a draft or final
inadequate to compensate for the injury; (3) the balance of
EIS. 40 C.F.R. § 1502.9. Plaintiffs sometimes allege that an
the hardships demonstrate that equitable relief is warranted;
agency’s failure to draft a supplemental EIS (SEIS) violates
and (4) the public interest would not be disserved by an
the APA. Not all new pieces of information or changes
injunction. See, e.g., W. Watersheds Project v. Abbey, 719
require an SEIS. Rather, the Supreme Court instructs
F.3d 1035, 1054 (9th Cir. 2013) (citing Monsanto Co. v.
agencies to apply the “rule of reason” to decide whether to
Geertson Seed Farms, 561 U.S. 139, 156-57 (2010));
prepare an SEIS. Marsh v. Oregon Nat. Res. Council, 490
Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1272
U.S. 360, 370-71 (1989).
(10th Cir. 2011). Courts sometimes grant narrow
injunctions when an agency can address site-specific issues
Some lower courts interpreting CEQ’s regulations hold that
within a project independently of other aspects or when a
an agency must prepare an SEIS when a new proposal
project has already received approval or is near completion
“present[s] a seriously different picture of the
when a lawsuit is filed. See, e.g., Sierra Club v. Bosworth,
environmental impact.” See, e.g., Ark. Wildlife Fed’n v.
510 F.3d 1016 (9th Cir. 2007).
U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1102 (8th Cir.
2005). Applying this test, the First Circuit ordered an SEIS
Preliminary Injunctions. Courts may grant preliminary
when an agency adopted an alternative proposal not
injunctions during litigation, which may bar all or part of a
considered in earlier documents or distributed for public
proposed action during the litigation. In a NEPA case
comment. DuBois v. U.S. Dep’t of Agric., 102 F.3d 1273
involving the Navy’s sonar training exercises, the Supreme
(1st Cir. 1996). By contrast, some courts have declined to
Court stated that plaintiffs must demonstrate (1) likelihood
order an SEIS when the documentation showed that the
of success on the merits; (2) likelihood of irreparable harm
agencies sufficiently consulted with experts about
in the absence of preliminary relief; (3) the balance of the
potentially new effects or concluded no new significant
equities tips in their favor; and (4) an injunction is in the
effects existed. See, e.g., Laguna Greenbelt, Inc. v. U.S.
public interest. Winter v. Natural Res. Defense Council,
Dep’t of Transp., 42 F.3d 517 (9th Cir. 1994).
Inc., 555 U.S. 7, 20 (2008). The Court also clarified that
plaintiffs must show that irreparable harm is “likely in the
Remedies in NEPA Litigation
absence of an injunction,” not just a “possibility.”
Plaintiffs may not seek damages under NEPA. Instead,
plaintiffs generally seek declaratory relief, which is a court
Remedies Under NEPA Regulations
determination that an agency’s actions taken to comply with
In 2020, CEQ finalized revisions to its 1978 NEPA
NEPA violated the APA. As a remedy for such violations, a
regulations. 85 Fed. Reg. 43,304 (July 16, 2020). The 2020
court generally remands the case to the agency for further
rules added a judicial remedies section, stating that CEQ
proceedings, and it may specify what those further
does not intend for a violation of NEPA to be presumed to
proceedings must include. The broader effect of a remand
be “a basis for injunctive relief or for a finding of
on the affected project, however, varies depending on
irreparable harm” and that “minor, non-substantive errors”
whether a court orders equitable relief—i.e., vacates the
that have no effect an agency’s decision are “considered
agency action or issues an injunction. Neither of these
harmless and shall not invalidate an agency action.” 40
remedies is granted automatically in NEPA cases. These
C.F.R. § 1500.3(d). It is unlikely that these statements of
equitable remedies can be significant, as absent such relief,
intent would have any legal effect on judicial authority to
agencies may be able to implement projects before the
issue injunctive relief for NEPA violations. The courts have
additional NEPA procedures are complete.
stayed litigation challenging the 2020 rules pending CEQ’s
review and revision of them.
While vacating the federal action may be the “ordinary”
remedy, courts consider the “seriousness” of the NEPA
Nina M. Hart, Legislative Attorney
deficiencies and the “disruptive consequences” of vacating
Linda Tsang, Legislative Attorney
the order. See Black Warrior Riverkeeper, Inc. v. U.S. Army
Corps of Eng’rs
IF11932
, 781 F.3d 1271 (11th Cir. 2015)
(describing federal court practice). In general, courts are
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National Environmental Policy Act: Judicial Review and Remedies
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