655 F.3d 1000
9th Cir.2011Background
- Lake Roosevelt is a multi-use reservoir in Washington state, with NEPA review at issue for a proposed incremental drawdown to increase downstream flow and support municipal/industrial, groundwater replacement, and instream uses under an MOU and Washington law.
- Agencies prepared a PEIS and SEIS, followed by a draft and final EA and a FONSI, analyzing cumulative, direct, and indirect environmental effects of the drawdown and related programs.
- Reclamation sought water-use permits from Ecology; Ecology issued permits in December 2008 allowing 82,500 acre-feet per year for multiple uses.
- CELP challenged the timeliness and adequacy of the EA, focusing on cumulative effects, indirect effects, and alternatives.
- District court granted summary judgment for defendants; court reviews NEPA de novo but defers to agency reasonable hard look; court affirmed.
- Appellate court held that the EA, in context, took a hard look at cumulative effects, indirect effects, and alternatives, and complied with NEPA despite some deficiencies in the standalone cumulative-effects section and the treatment of a future Special Study.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the EA's cumulative effects analysis adequate under NEPA? | CELP argues the past-effects discussion is cursory and cross-referenced. | Reclamation/Ecology argue the EA, read as a whole, adequately analyzes cumulative effects. | Yes; the EA, read holistically, satisfies NEPA's hard-look requirement. |
| Did the permits issued before the final EA irretrievably commit agency resources? | CELP contends permits constituted an irreversible commitment. | Permits did not force diverson; agency retained discretion to proceed or not. | No; permits did not irretrievably commit the agency. |
| Are the indirect effects of siphon expansion adequately addressed? | Expanded siphons could enable additional diversions and create indirect effects. | Additional diversions would require multiple unlikely events and fall outside current project scope. | No; expansion does not create reasonably foreseeable indirect effects within the current drawdown analysis. |
| Was the Odessa Subarea Special Study properly analyzed for cumulative effects? | Special Study's cumulative impacts should be considered with the drawdown. | Not reasonably foreseeable at the time; future EIS addresses it; timing rule applies. | No NEPA violation; future EIS will address cumulative effects; timing rule applied. |
| Did the EA adequately analyze alternatives? | CELP argues more alternatives (conservation/water marketing) should be considered. | SEIS already considered/rejected alternatives; absence from EA acceptable under Laguna Greenbelt. | Yes; analysis of alternatives satisfies NEPA. |
Key Cases Cited
- Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988) (timing and go/no-go analysis central to NEPA)
- Kern v. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) (requires quantified/cDetailed cumulative effects for hard look)
- Northern Alaska Environmental Center v. Kempthorne, 457 F.3d 969 (9th Cir. 2006) (notice of intent can shift timing of cumulative effects analysis)
- Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517 (9th Cir. 1994) (absence of exhaustive alternatives discussion in EIS can be acceptable when prior studies informed decisions)
- Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, 524 F.3d 938 (9th Cir. 2008) (NEPA's hard look; procedural vs substantive NEPA)
- Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002) (cumulative effects analysis and agency responsibility)
- Ecology Center v. Castaneda, 574 F.3d 652 (9th Cir. 2009) (cumulative effects and past actions discussion in NEPA)
- League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122 (9th Cir. 2010) (cumulative effects analysis standards)
- Center for Biological Diversity v. U.S. Dep’t of the Interior, 623 F.3d 633 (9th Cir. 2010) (NEPA procedural requirements and hard look)