NEPA Process and Specific Requirements - Environmental Impact Analysis: Process and Methods - page 97

nonproliferation treaty with the Soviet Union, “trust but verify.” There are two
avenues of verification for NEPA compliance: litigation challenging NEPA pro-
cedural requirements through the U.S. federal court system; and through the
court of public opinion forced by the public transparency requirements.
As discussed earlier and in preceding chapters, NEPA does not require fed-
eral agencies to achieve environmental protection or enhancement, but it does
require that they follow a specified procedure in making decisions that could
impact the environment. An agency's compliance with the procedural require-
ments can be challenged in the courts and subjected to judicial review by any
entity that has “standing” in the case and the courts have interpreted standing
broadly. For example, an environmental advocacy group with concerns regard-
ing wildlife as part of their charter, or a hunter who utilizes the resource is
generally judged to have standing regarding a proposed federal action that
could affect wildlife habitat. Litigation regarding an agency's failure to comply
with NEPA's required procedures is actually brought under the Administrative
Procedure Act. This act, passed in 1946, mandates that federal agencies observe
established procedural requirements set forth in a law and specifies that agency
actions cannot be arbitrary, capricious, or an abuse of discretion.
The courts have consistently deferred to federal agencies regarding substan-
tive matters addressed as part of the NEPA process. The rationale is that the fed-
eral agency proposing the actions has or has access through sister agencies the
technical expertise necessary to understand the environmental implications of
their actions, and the proposing agency best understands how the action relates
to the agency's mission. Thus they are in the best position to weigh the conse-
quences and make a decision consistent with NEPA and the agency's mission.
However, the court has ruled on numerous occasions that agencies must take
NEPA seriously and take a “hard look” at the environmental impact of their
action (see discussion of invasive mussels in Chapter 5 for an example of what
does and does not constitute a hard look). Similarly, courts have been asked to
rule on the objectivity of decisions and have consistently ruled that if an agency
seeks and considers available technical input and then either accepts the input or
clearly explains why they have not, their decision is not arbitrary or capricious.
Although the courts are very reluctant to overrule an agency decision
regarding interpretation of data, use of technical information, or other sub-
stantive issues, the courts have given little latitude to the federal agency pro-
posing the action regarding NEPA procedures. They have held the agencies
to the CEQ Regulations implementing NEPA, and if the agencies stray from
the regulations, they must clearly explain why and how the variation does
not contravene the intent of CEQ. Some of the common nonconformances
with NEPA procedures causing the courts to reject an EIS or other aspects of
an agency's compliance with NEPA are:
r Failure to address a comment on a draft EIS or a comment submit-
ted during scoping. The courts have ruled that the agency does not
have to accept the comment at face value or comply with the request,