July 2020 - Parks & Recreation - 32

L AW R EV I EW

ing " while providing " flexibility in
management methods to address
future control of deer density in
different ways. "
See: tinyurl.com/y854nh8v.

Judicial Review
of NEPA Process
The FOA lawsuit alleged NPS did
not comply with NEPA and sought
an order from the federal district
court invalidating the EIS and vacating the Record of Decision approving the Plan. In the opinion of
the federal district court: " NPS considered a reasonable range of alternatives and that the administrative
record supported its decision to select Alternative D and implement
a Seashore-wide target deer density
level because it furthered the EIS's
stated objectives. " Accordingly, the
federal district court granted the
NPS motion for summary judgment effectively dismissing FOA's
lawsuit. FOA appealed.
As cited by the federal appeals
court, NEPA " establishes a national
policy to encourage productive and
enjoyable harmony between man
and his environment, and was intended to reduce or eliminate environmental damage and to promote
the understanding of the ecological
systems and natural resources important to the United States. " To
further that policy, the court noted
that NEPA requires a federal agency
to prepare an EIS before taking any
major action that will " significantly
affect the quality of the human environment. " 42 U.S.C. § 4332(c).
As described by the court, the
EIS serves to " provide a full and
fair discussion of significant environmental impacts and to inform
decision makers and the public of
the reasonable alternatives which
30

Parks & Recreation

| J U LY 2 0 2 0 | P A R K S A N D R E C R E AT I O N . O R G

would avoid or minimize adverse
impacts or enhance the quality
of the human environment. " The
court, however, recognized that
NEPA is " a procedural statute that
mandates a process rather than a
particular result. " Accordingly, the
court acknowledged that an agency
is " not constrained by NEPA from
deciding that other values outweigh
the environmental costs, " as long
as the agency " adequately identifies and evaluates the adverse environmental effects of its action. "
As noted by the federal appeals
court, judicial review of the NEPA
process is governed by the Administrative Procedure Act (APA). Under the APA, federal courts will be
deferential in reviewing agency decision making as long as the action
taken is not " arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law. "
5 U.S.C. § 706(2)(A). In particular,
the federal appeals court acknowledged the scope of APA judicial
review under NEPA is " narrow " :
" The only role for a court is to insure that the agency has taken a
'hard look' at the environmental
consequences; it cannot interject
itself within the area of discretion
of the executive as to the choice of
the action to be taken. "
Applying the limited role of judiciary review under the APA,
the federal court would, therefore,
not question whether the court
" would have reached the decision
under review had we been decision
makers within the agency. " On the
contrary, the federal appeals court
would simply determine " whether
the agency has presented a rational
basis for the decision reached. " If
so, the federal appeals court would
then uphold the agency's decision.

Lack of Essential
Information
As cited by the federal appeals
court, NEPA's implementing regulations provide that the EIS must
include any information " relevant
to reasonably foreseeable significant
adverse impacts " that " is essential
to a reasoned choice among alternatives. " 40 C.F.R. § 1502.22(a). That
being said, the court acknowledged
that an agency is " excused from obtaining the information if the cost
of doing so is exorbitant or if the
means to obtain it are unknown. "
Under such circumstances, however, the court noted: the EIS must
state, " that such information is incomplete or unavailable. " Further,
the court found the EIS " must
provide other information to help
analyze the reasonably foreseeable
significant adverse impacts on the
human environment. "
In this particular instance, FOA
had argued: " NPS violated NEPA
because it lacked information about
deer movement on the Seashore that
was essential to the decision-making
process. " Specifically, FOA claimed
information about the deer movement across the Seashore was essential because SAT had warned
that without " information regarding
whether deer populations on the island move east to west in any significant way, it would be impossible to effectively evaluate how to deal with the
alleged deer issues on the Seashore. "
The federal appeals court rejected FOA's characterization of SAT's
position. In the opinion of the court,
there was no suggestion in the SAT
Final Report that " the SAT lacked
sufficient information about deer
movement to make a recommendation or that NPS needed that information to develop the alternatives. "

July 2020 - Parks & Recreation

Table of Contents for the Digital Edition of July 2020 - Parks & Recreation