Judicial Restraint in NEPA Cases: How Many Judges Allow “Unwise” Agency Action?

This week, in Webster v. USDA, Judge John Bailey of the Northern District of West Virginia rejected a challenge to the Environmental Impact Statement filed for a USDA flood control project. The decision is not particularly startling and does not break new ground, but it does serve as a reminder just how limited judicial review under NEPA is supposed to be – and just how often that limitation is honored only in the breach, by judges who don’t like particular projects or don’t want to be known as the judge who approved a particular project if something later goes wrong.

As Judge Bailey pointed out:

NEPA does not … impose any substantive environmental obligations upon agencies; it “merely prohibits uninformed – rather than unwise – agency action.”

Just to be clear, Judge Bailey was not off on a frolic and detour here; the quoted language is from the Supreme Court decision in Robertson v. Methow Valley Citizens Council. Moreover, in determining whether the agency committed a reversible “clear error of judgment,” the court

must take a holistic view of the agency’s assessment; “[c]ourts may not ‘flyspeck’ an agency’s environmental analysis, looking for any deficiency, no matter how minor.”

How many federal judges have the restraint to reject a challenge to an EIS, where he/she finds the EIS thorough, but is convinced that the project is “unwise”? And how many practitioners have the experience of judges “flyspecking” a holistically sound EIS, looking for some kind of reversible error, because they had some underlying concern about the substance of the project?

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