It’s been almost 40 years since Justice Marshall’s opinion in Flint Ridge Dev. Co. v. Scenic Rivers Ass’n, 426 U.S. 776 (1976). That case marked the first of many occasions SCOTUS has weighed in on NEPA substantively (two earlier, largely trans-substantive opinions preceded it).
Flint Ridge has become a NEPA Rorschach test in the intervening decades. The case’s holding is simple enough—on its face. In a nutshell, Flint Ridge holds that if an agency’s enabling statute is such that preparation of a NEPA review under § 102(2)(C) is effectively precluded, then there’s an “implied exemption” from NEPA, i.e., that statute leaves the agency no “discretion” by which a real choice is presented.
After some reflection, this holding becomes maddeningly complex, though.
In The NEPA Implied Exemption Doctrine, Kyle Robisch paints the holding—and the subsequent case law following it—as a “novel” and “creeping” threat to NEPA’s integrity. Mr. Robisch’s article, an exemplary bit of student writing that won an American Bar Association-sponsored writing competition, was recently reprinted in the Rocky Mountain Mineral Law Foundation Journal. In the article, he asserts that
all an agency needs to do is characterize its action as “non-discretionary”—a surprisingly broad class of actions that includes federal land acquisitions, wilderness trail maintenance decisions, and even airport landing policies—and most courts will be willing to keep NEPA on the statutory shelf.
(internal citations omitted)
Mr. Robisch then smartly turns to Flint Ridge’s perception problem: the notion that it was an “anti-environmental” interpretation of NEPA, lumping it (as many do) with the dozen+ other SCOTUS opinions where the Court ruled “against the pro-NEPA plaintiffs.” This sort of critique invariably raises more questions about NEPA’s litigation record than it answers. For example, what would forcing a NEPA review on the Department of Housing and Urban Development in that case have added to NEPA’s environmental chops? The agency without much time to prepare or to consider a NEPA review is one that will probably only do it for formality’s sake anyway.
Another question: does the Flint Ridge opinion really give all that much “cover” to an anti-environmental agency that isn’t already right there in the very text and structure of NEPA § 102? As another nuanced consideration of NEPA pointed out a few years ago,
Marshall declined to adopt the even broader reasoning (also advanced by the Solicitor General) that the other Justices thought, in light of their discussions at conference, would serve as the basis of the Court’s opinion–the absence of statutory authority under its own statute for the agency to take environmental considerations into account. . . . To the surprise of the other Justices, Marshall’s opinion ignored that argument altogether and instead relied on the entirely statute-specific notion that NEPA EIS compliance was not required because of the exceedingly short time frame applicable to the decision-making process of the particular agency at issue in the case.
Richard Lazarus, The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, 100 Geo. L.J. 1507, 1540-41 (2012) (internal citations omitted).
And that about sums up the dilemma: NEPA § 102(2)(C) simply cannot be read to do much work, at least within the “Federal agency” taking the subject action, if the applicable law requires the agency to take that very action. In this sense, “discretion” is a necessary precondition for the operation of the mandate. Without discretion, the agency simply has no reason to compile a “detailed statement” on the environmental costs or benefits of its options. Indeed, it has no options—literally.
Of course, for anyone familiar with the typical administrative agency and the typical lawsuit challenging it, this seems a rather hollow and self-justifying truth. For these agencies (and courts) constantly interpret ambiguous sources of law to reach their conclusions that some action is required, forbidden, or permitted. In other words, they deliberately conclude that they have no options.
Another layer lies just below this frustration, too: many agency actions should provoke the scrutiny of the public and/or its representatives in Congress. Perhaps a NEPA review of the subject action would help in that process, either by noticing the action to those beyond the agency or by helping them to understand its significance. If so, then the necessity of discretion seems less central to § 102(2)(C)—it seems almost beside the point, indeed.
Still, the “implied exemption” growing out of an underlying statute’s incompatibility with NEPA review exists in any possible world where NEPA is a “mere” statute. The only question is its breadth. Mr. Robisch argues that the exemption is broadening under the twin forces of federal agencies seeking the exemption and federal courts growing weary of NEPA plaintiffs.
If that’s true, it will not be easily checked—by SCOTUS or anyone else. For those are powerful forces, constantly on display in NEPA litigation. My suspicion, though, is that it is an empirical question, perhaps one without an empirical answer. Federal agencies are always changing, often because of turnover in their leadership.
An agency that wishes to avoid a NEPA review at one moment in time might take a very different tack after an election. In short, NEPA’s “discretion” is as easy to revive as it is to kill. The real driver, thus, may be what the leadership of our federal agencies thinks of NEPA and its reviews. Favorable views = more “discretion” in more places with correspondingly increased use of NEPA review. Unfavorable views = less “discretion” and more statutory incompatibilities precluding NEPA reviews. And those views are, themselves, entirely appropriate subjects of electoral competition. (More people should understand just how easy it is to find some trumped up incompatibility between NEPA and other statutes!)
NEPA “discretion,” under either view, is a critical fulcrum legally and politically. Robisch and others are right to shine the light here.