August 2013 - Parks & Recreation - 29

2005 to 2009 and identified 29 chemicals that are known or possible human
carcinogens, regulated under the Safe
Drinking Water Act as risks to human
health, or listed as hazardous air pollutants under the Clean Air Act. In
recent years, fracking has come under
scrutiny in federal, state and local governments alike, with some states contemplating enacting, or having already
enacted, laws banning fracking altogether. Others have authorized fracking on public lands, including parks.
APA Review
In reviewing an agency determination under the Administrative Procedures Act (APA), based upon the
administrative record, the federal
court will determine whether the
agency's " decision was based on
consideration of the relevant factors,
or whether its actions were arbitrary,
capricious, an abuse of discretion or
otherwise not in accordance with
the law. " In so doing, judicial review
of agency actions under the APA
is " deferential to the agency's recognized expertise in the field, " but
the role of the federal court is not
to " rubber-stamp agency decisions. "
Within the context of APA review
of agency actions under NEPA, the
federal court must " ensure that the
agency has taken a 'hard look' at
the environmental consequences,
carefully reviewing the record to ascertain whether the agency decision
is founded on a reasoned evaluation
of the relevant factors. " In so doing,
within the context of this particular
case, the federal court would not consider the larger " policy question " of
whether fracking is " a good or bad
thing. " Resolution of such broader
policy issues is better left to the political process in Congress, rather than
the federal courts.

NEPA Primer
With the goal of declaring " a national policy which will encourage
productive and enjoyable harmony
between man and his environment, "
NEPA establishes two concrete mandates for federal agencies:
First, it places an obligation on federal agencies to take a " hard look " at
" every significant aspect of the environmental impact of a proposed action. "
Second, it requires the agency to
inform the public that it indeed has
taken environmental considerations
into account before taking action.
This is accomplished by requiring federal agencies to prepare a detailed EIS
[environmental impact statement] for
all proposals of major federal actions
" significantly affecting the quality of
the human environment. "

A review should be
prepared at a time when
the decisionmakers
" retain a maximum range
of options. "
The federal regulations implementing NEPA explicitly require
that review under the NEPA process
be timely. Agencies are required to
conduct this review at the " earliest
possible time " to allow for proper consideration of environmental
values and " head off potential conflicts. " This ensures that the environmental impact statement can make
an " important contribution to the
decisionmaking process " and will
not merely be used to justify a decision that has already been made.
A review should be prepared at a

time when the decisionmakers " retain a maximum range of options. "
The obligation to produce a review
arises when there is any " irreversible
and irretrievable commitments of
resources. "
The " basic thrust " of NEPA is to
require that agencies consider the
range of possible environmental effects before resources are committed
and the effects are fully known. Reasonable forecasting and speculation
is thus implicit in NEPA, and federal courts will reject any attempt by
agencies to shirk their responsibilities
under NEPA by labeling any and all
discussion of future environmental
effects as " crystal ball inquiry. "
NEPA requires an EIS to include
a statement of " any irreversible
and irretrievable commitments of
resources which would be involved
in the proposed action should it be
implemented " (42 U.S.C. § 4332(C)
(v)). If the proposed action does
not categorically require the preparation of an EIS, the agency must
prepare an environmental assessment (EA) to determine whether
the action will have a significant
effect on the environment.
If the agency finds, based on a less
formal and less rigorous EA, that the
proposed actions will not significantly affect the environment, the agency
can issue a finding of no significant
impact (FONSI) in lieu of the EIS.
The FONSI must contain a convincing statement of reasons why the
project's impacts are insignificant.
The statement of reasons is crucial
to determining whether the agency
took a " hard look " at the potential
environmental impact of a project.
Standing together, the FONSI and
EA must be sufficient to establish the
reasonableness of the decision not to
prepare an EIS.

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August 2013 - Parks & Recreation

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