November 2022 - Parks & Recreation - 30

LAW REVIEW
en a hard look at environmental
consequences that may flow from
a project, not to second-guess the
agency's substantive judgment
about how serious those consequences
might be or what to do
about them.
In this particular instance, Protect
Our Parks had argued, " the
agencies' decision not to prepare an
EIS was arbitrary and capricious "
because " a finding of no significant
impact " had not adequately
examined relevant environmental
impacts, including:
[T]he project requires the City to
cut down about 800 trees and felling
those trees may adversely affect
certain migratory birds, and in
part for historic preservation and
other reasons.
The federal appeals court rejected
this argument. As characterized
by the court, Protect Our Parks had
objected to " the agencies' response
to the procedural steps they took,
not arguments about their failure to
adhere to the required process. " In
the opinion of the federal appeals
court, in their EA, DOT and NPS
had indeed been " very thorough "
in their adherence to NEPA procedural
requirements:
Their environmental assessment
includes, for example, an exhaustive
Tree Technical Memorandum,
which catalogs the species of the
trees that will be cut down and
confirms that each tree lost will be
replaced by a newly planted tree.
The Memorandum concludes that
the tree replacement plan will have
an " overall neutral " impact and
may even improve the park, because
dying trees will be replaced
with healthy ones.
Similarly, the EA includes a
detailed discussion of the project's
effect on migratory birds. It
considers the City's tree replacement
plan, the hundreds of acres
of Jackson Park that will remain
untouched by the project, and the
birds' nesting habits.
Accordingly, the federal appeals
court held " NEPA requires no
more " because " the record shows
that the Park Service and Department
of Transportation took the
necessary hard look at the likely
environmental consequences
of
the project before reaching their
decisions. "
NEPA Regulations
On appeal, Protect Our Parks had
also argued that " the Park Service
and the Department of Transportation
did not adequately consider
three of the [10] factors set forth
in the NEPA regulations in effect
while the review was underway. "
The federal appeals court rejected
this argument.
In the opinion of the court, " the
administrative record amply shows
that the agencies considered the
proper factors " and, therefore, " their
decision is entitled to deference. " In
so doing, the federal appeals court
cited the applicable federal environmental
regulations that implement
NEPA: " Whether or not a project
'significantly' affects the environment
turns on the project's context
and the intensity of its effects. " 40
C.F.R. § 1508.27(b) (2019).
Protect Our Parks also faulted
the federal agencies for " ignoring
the unique characteristics of Jackson
Park. " The federal
appeals
court, however, found the joint
EA had satisfied the regulatory requirement
to " take into account the
historical and cultural resources in
the park before concluding that the
30 Parks & Recreation | NOVEMBER 2 0 22 | PARK S ANDRECRE AT ION . OR G
Center's effects will be minimal. "
Similarly, Protect Our Parks had
contended that the agencies did not
satisfy the regulatory requirement
to " consider the degree to which
environmental harm from the
project is likely to be highly controversial. "
40 C.F.R. § 1508.27(b)
(4). In so doing, Protect Our Parks
had offered evidence of " controversy "
from " extra-record declarations
from neighbors who oppose
the project. " The federal appeals
court, however, noted " the controversy
factor is not about whether
some neighbors do not support a
project. " Rather, in determining
whether a project is " likely to be
highly controversial, NEPA regulation
would simply require an agency
to consider whether there are
substantial methodological reasons
to disagree about the size, nature,
or effect of a project. "
Cumulative Impacts
Protect Our Parks also had accused
the agencies of failing to consider
the " cumulatively significant impact "
of the project. 40 C.F.R. §
1508.27(b)(7) (2019). Once again,
the federal appeals court rejected
the claim that environmental review
of the project by the agencies
had failed to comply with applicable
NEPA regulations.
In the opinion of the court, the
EA and FONSI had adequately
considered the significance of cumulative
impacts of the project.
In so doing, the court found the
agencies had simply " reached a
conclusion with which the plaintiffs
disagree, when it determined
that the cumulative effects would
be negligible, minor, or otherwise
relatively small " :
The Park Service and the De
November 2022 - Parks & Recreation

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