546 F. App'x 655
9th Cir.2013Background
- Plaintiffs (Moapa Band of Paiutes and the Sierra Club) challenged BLM’s EA and FONSI approving an expansion of the Reid Gardner Generating Station and denial of an EIS.
- District court granted summary judgment to federal defendants and intervenor Nevada Power Company; plaintiffs appealed.
- Central NEPA dispute: whether BLM took the required “hard look” in the EA and whether an EIS was required.
- Plaintiffs also contested BLM’s characterization of certain waste as nonhazardous and whether that affected the NEPA analysis and BLM’s regulatory authority.
- Court reviewed under the APA’s arbitrary-and-capricious standard, affording deference to agency factfinding and interpretations of its own regulations.
- Court affirmed: BLM’s EA satisfied NEPA’s procedural requirements, any error on waste classification was harmless, and the agency reasonably declined to supplement the EA after plaintiffs submitted additional information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLM’s EA took the required "hard look" so an EIS was unnecessary | EA was deficient; impacts were significant and an EIS was required | EA adequately analyzed impacts; no significant environmental effect; EIS not required | Court: EA met NEPA; BLM took a sufficient hard look and FONSI was permissible |
| Whether BLM acted arbitrarily by refusing to supplement the EA after plaintiffs submitted new info | BLM should have supplemented EA based on post-EA information | Declining to supplement was reasonable under deferential review | Court: refusal to supplement not arbitrary or capricious |
| Whether BLM properly characterized waste as nonhazardous and whether that affects NEPA outcome | Misclassification undermines EA and BLM authority; impacts may be significant | Even if misclassified, BLM’s regs allow disposal; hazardousness did not change the FONSI | Court: any error was harmless; FONSI would stand even if waste were hazardous |
| Whether BLM's regulatory interpretation permitting disposal is permissible | Plaintiffs argued BLM exceeded authority or misinterpreted regs | BLM’s interpretation entitled to deference (Auer) | Court: upheld BLM’s regulatory interpretation and authority |
Key Cases Cited
- Cold Mountain v. Garber, 375 F.3d 884 (9th Cir. 2004) (EIS requirement for actions significantly affecting the environment)
- Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005) (EA/FONSI framework and "hard look" standard)
- Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) ("hard look" NEPA review language)
- River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) (deferential APA review; agency need only act reasonably)
- Marsh v. Or. Natural Res. Council, 490 U.S. 360 (U.S. 1989) (when an EIS is required for major federal actions)
- Auer v. Robbins, 519 U.S. 452 (U.S. 1997) (deference to agency interpretations of its own regulations)
- Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (harmless error doctrine in administrative review)