NEPA, Breaching Dams, and the Injunction Standard in Federal Court

Finding the law was broken is one thing. Fixing it is something else.

A first post described the NEPA violation Judge Simon found last week: the failure to prepare an EIS for the adoption of the 2014 BiOp along with its 73[!] “reasonable and prudent alternatives.”

This post raises the question the judge presented to the parties on May 4th: what relief ought to be granted for this NEPA violation?  Judge Simon holds very clearly that an inclusive, “programmatic” environmental impact statement (PEIS) must be prepared weighing the “reasonable alternatives” to the adoption of the 2014 BiOp and its guidance.  But he seemed keen to hear argument about timing, and perhaps also about the contents of this PEIS.  See National Wildlife Fed’n et al. v. National Marine Fisheries Serv., et al., 2016 WL 2353647 (D.Ore. 2016), at 58-59.

NEPA’s very first SCOTUS appearance was a petition about relief.  The Court denied certiorari that had been sought on an emergency basis, in effect allowing the Cannikin nuclear test beneath Amchitka Island to proceed despite clear NEPA violations and questions about its safety.  See Committee for Nuclear Responsibility, Inc. v. Schlesinger, 404 U.S. 917 (1971).

More recently the Court has used NEPA cases to define the federal standard for the granting of preliminary injunctions, see Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008), and to refine the “abuse of discretion” standard in the application of the Court’s four factors for a permanent injunction from eBay v. MercExchangeSee Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756-2762 (2010) (quoting eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)).

Indeed NEPA has long been familiar to those steeped in remedies law. For it raised early in its life—and has done so constantly since—the quite troubling question: what discretion should judges who have adjudicated a statutory violation have to avoid or temper the legal consequences of that violation?

We now know that the Federal Columbia River Power System (FCRPS) operators violated NEPA and that the dams on the mighty Snake River may be irreconcilably threatening to its salmon.  See 2016 WL 2353647 at 59.  What should be the relief granted to the plaintiffs?Army Corps

In 1982, Professor Plater observed that “[i]t is difficult, if not impossible to find cases in which courts have permitted proved statutory violations to continue unabated.”  Zygmunt J.B. Plater, Statutory Violations and Equitable Discretion, 70 Cal. L. Rev. 524, 529 (1982).  But he followed up with a note on NEPA cases particularly, conceding that “denials of NEPA injunctions are frequent,” especially where the agency had or was set to come into compliance independent of the litigation.  Id. at 575.

What is it about NEPA that so routinely raises this question of law and discretion in federal court?BuRec

Equitable Discretion: Origins

In many early NEPA cases, and in several Supreme Court opinions on injunctive relief in the environmental context, the go-to authority for the proposition that courts retain discretion to withhold relief even after adjudicating a violation of law is Hecht v. Bowles, 321 U.S. 321 (1944).  See, e.g., Jared A. Goldstein, Equitable Balancing in the Age of Statutes, 96 Va. L. Rev. 485, 505 (2010).

Hecht involved the Emergency Price Control Act of 1942, however, and, even more than that exceptionality, denied an injunction to an agency seeking it against an enforcement target that had violated the law inadvertently and had since come into compliance.  See id. at 330.

Two observations are worth noting.  First, Hecht concerned the granting of injunctive relief based on the then-common law grounds of the court/agency relationship.  After 1946 Congress’s clear standing instructions where agency infidelity-to-law arose, in the form of Administrative Procedure Act (APA) Section 10, superseded that common law.  Second, with the statutory policies that sit behind NEPA § 102(2) looming as large as they do, even “declaratory” relief announcing a legal mistake can embroil a court in precisely the dynamics its “equitable” doctrines were meant to keep courts free of.   Let us explain.

The APA Overlay

APA § 10(e), now codified at 5 U.S.C. § 706(2), provides that courts are to “hold unlawful and set aside” agency action, findings and conclusions found to be “not in accordance with law” or “without observance of procedure required by law.”  Id. at§ 706(2)(A), (D).  (The APA is a necessary adjunct to every NEPA claim, too, as NEPA lacks its own suit provision.)

In our case, of course, either one of those two prongs could apply.  An agency action done without observance of procedure required by NEPA § 102(2)(C) should be “set aside,” the argument goes, pure and simple.  As we’ve noted before, it need not be any more complicated than that—and some courts agree.

Still, § 706 also states that “due account shall be taken of the rule of prejudicial error,” id. (emphasis added), which at least on its face provides the very safety valve courts purport to be activating at the relief-granting stages with their equitable discretion.

Would it matter much whether courts free-form things from the doctrines of equity or be forced to do so in working out what was a “prejudicial” (as opposed to a harmless) agency error?  There is reason to think not.

The D.C. Circuit—if not SCOTUS—has long maintained a generic test for “remanding” agency actions found contrary to some prong of § 706’s without “vacatur” of that action.  See United Mine Workers v. Federal Mine Safety & Health Admin., 920 F.2d 960, 966-67 (D.C. Cir. 1990); Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993); Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994).

That court’s test balances the “seriousness” of the deficiencies found against the “disruptive consequences” of vacating the challenged agency action.  And that court was long known to take a lenient approach to the first factor and an uneven approach to the second.  But let’s suppose something like this two factor balancing was applied to the Corps’ and BuRec’s failure to prepare a PEIS before “adopting” the 2014 BiOp and its 73 RPAs.  Could it result in the “vacatur” of their adopting the 2014 BiOp?  That would put them in violation of the ESA for certain.

Arguably, a very serious deficiency has been found: no EIS was prepared for a series of connected actions—having an inarguably significant cumulative effect on the environment—despite the fact that the agencies have known at least since 2014 that this type of agency action (at least in the Ninth Circuit) can trigger NEPA § 102(2)(C).  See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602, 640-42 (9th Cir. 2014) (holding that an action agency’s “adoption” of a BiOp and RPAs can be a “major federal action significantly affecting the quality of the human environment”).

Yet, on the other hand, to bring the FCRPS to a grinding halt for failing to comply with NEPA procedures, and to make that the status quo until the agencies remedy the NEPA (and ESA) deficiencies, would be extremely disruptive and might lack real benefits.  The D.C. Circuit’s answer to the two factor balance under APA Section 10 would seem to be that “vacatur” of the underlying action is probably inappropriate—notwithstanding a serious violation of law!  More on that in a moment.

SCOTUS’s New Old Law of Equitable Discretion

In eBay v. MercExchange, the Supreme Court purported to reiterate a “traditional” test for the granting of injunctive relief (a test that remedies scholars almost all said they didn’t recognize).  See, e.g., Mark P. Gergen et al., The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203 (2012).  The eBay factors are:

(1) whether the movant has suffered/will suffer an irreparable injury;

(2) whether legal remedies are inadequate to compensate for that injury;

(3) whether, considering the balance of hardships between the plaintiff and defendant, equitable relief is warranted; and

(4) whether the public interest would not be disserved by an injunction.

Although Justice Thomas’s opinion in eBay perhaps mislabeled these factors as the traditional test for an injunction, they were surely a traditional approach, loosely speaking.  See Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997. 1029 (2015).

The eBay Factors: How to Apply?

As mentioned, Monsanto already extended the eBay test to NEPA.  Any argument that courts in the Ninth Circuit are free to ignore eBay because it was a patent case is, therefore, wrong.  But how does eBay apply?

The eBay factors could be adapted to the issues Judge Simon’s May 4th opinion highlights—the proper contents of the remand/NEPA injunction to be granted—but only with a twist.

With no presumption of “irreparable injury,” the test turns inevitably to the weighing of the alternative courses of prescribable action within/by the agency as they are presented to the court.  And that probably means weighing the different policies behind the applicable statutes.  If what the court held on May 4th is any indication, this judge thinks NEPA’s policies are weighty indeed:

One of the benefits of a NEPA analysis, which requires that all reasonable alternatives be analyzed, is that it allows innovative solutions to be considered and may finally be able to break through any bureaucratic logjam that maintains the status quo. The agencies, public, and public officials will be able evaluate the costs and benefits of various alternatives. The FCRPS remains a system that “cries out” for a new approach. A NEPA process may elucidate an approach that will finally move the listed species out of peril.

2016 WL 2353647 at 59.

Still, this is where remedial exceptionalism might have a big impact.  If Judge Simon starts from the premise that a remedy here is exceptional by nature and that the necessary harms of not affording relief must be sufficiently definite and provably grave to overcome a presumption against, then the costs and benefits of the status quo will be decisive.

The court could presumably order (1) a shorter or a longer turnaround on the PEIS; (2) various procedural steps and public input stages by which a draft PEIS can become a final PEIS; (3) the minimum contents of the PEIS; and (4) various permutations of the foregoing.

What the court cannot do given the holding’s grounds in NEPA, though, is order what weight or consideration responsible officials at the Corps and BuRec shall give to the resulting PEIS. And this returns us to the statutory violation itself: that the older NEPA documents were stale and that the newer NEPA documents were insufficiently comprehensive in scope.  A PEIS was necessary in the court’s view to give the “regionwide impacts” of the RPAs a “hard look.”  See 2016 WL 2353647 at 57.

But it also raises what the court hinted was the likely cause of our status quo: agency intransigence.  If the Corps and BuRec really don’t want to take a hard look at breaching or disabling the lower Snake River dams as among the NEPA § 102(2)(C) “alternatives,” what good is a court order requiring them to waste the paper making it appear as if they did?  What good will dam breaching as part of the PEIS exercise do if the agencies won’t dare consider it (and 25 years of this litigation seem to prove they won’t)?

The inevitable answer is that Congress might want to do so.  See, e.g., Kleppe v. Sierra Club 427 U.S. 390 (1976); Scientists’ Inst. for Pub. Info. v. Atomic Energy Comm’n, 481 F.2d 1079 (D.C. Cir. 1973).

But that argument seems a bit fanciful.  Congress today is just as likely to pass an appropriations rider exempting the FCRPS from NEPA as it is to fund or even permit breaching its dams.  And that makes Judge Simon’s task in this relief phase of the case all the more precarious.  Nevertheless, and this is where the eBay test and the D.C. Circuit’s approach to remand without vacatur probably converge, it is in the very nature of our courts to find and declare the law.  What they are loathe to do is visit more harm on society from that law than they absolutely must.  And that means that, whatever the safety valve used, in cases like dams and salmon, they have a tiny little needle to thread.

{Image: Snake River headwaters, just below the Tetons and Jackson Lake, Wikipedia}


I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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