Public Employees for Environmental Responsibility v. United States Fish and Wildlife Service
189 F. Supp. 3d 1
| D.D.C. | 2016Background
- PEER (plaintiffs) challenged the Fish and Wildlife Service’s (FWS) 2014 five‑year re‑extensions of two depredation orders authorizing killing of double‑crested cormorants (50 C.F.R. §§ 21.47, 21.48), alleging NEPA violations.
- On March 29, 2016, the Court granted PEER summary judgment on NEPA claims and remanded the orders to FWS, directing briefing on remedy; this opinion decides remedy.
- The Administrative Procedure Act authorizes courts to set aside agency action found arbitrary, capricious, or not in accordance with law; vacatur is the presumptive remedy for NEPA violations in this district.
- FWS argued vacatur would cause substantial disruption and environmental and economic harms (to fisheries and aquaculture) and urged remand without vacatur or a stayed vacatur; FWS estimated it could complete supplemental NEPA work in seven months.
- PEER argued the EA was markedly deficient (failed to update prior analysis and inadequately considered alternatives), that vacatur is appropriate, and that continuing the orders would itself cause environmental harm.
- The Court found FWS’s demonstrations of likely economic and environmental harms speculative or imprecise, noted available alternative measures (individual permits, state plans), and concluded the EA was legally inadequate; it ordered vacatur of the 2014 re‑extensions and remand for a new, adequate EA or EIS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate remedy for NEPA violation (vacatur vs. remand only) | EA was significantly deficient; presumptive remedy is vacatur pending adequate NEPA analysis | Vacatur would cause wide‑ranging disruptive harms to fisheries, aquaculture, FWS operations; court should stay vacatur while FWS remedies | Vacatur is appropriate; remand with vacatur ordered because FWS failed to show serious, non‑speculative disruption that would outweigh NEPA compliance |
| Sufficiency of FWS’s proffered harms to justify keeping orders | N/A (argues harms are speculative) | Claimed economic losses and environmental harms from rescission support denying vacatur | FWS’s assertions were speculative, imprecise, or contradicted; not persuasive to deny vacatur |
| Availability of alternative measures during remediation | Alternatives (permits, state plans) can mitigate short‑term harms; leaving orders causes environmental harms too | Alternatives are limited but exist; long‑term management concerns remain | Existence of individual permits and state measures counseled in favor of vacatur as short‑term mitigation |
| Required scope of FWS’s supplemental NEPA review | FWS must update analysis, consider meaningful alternatives, and take a ‘‘hard look’’ at environmental impacts | FWS proposed a seven‑month supplemental EA and 30‑day comment period; expects no EIS likely needed | Court instructs FWS to perform a legally adequate EA or EIS, meaning updated assessment framework and genuine consideration of alternatives; cautioned against treating extension as foregone conclusion |
Key Cases Cited
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (standard that agency action must be set aside if arbitrary, capricious, or otherwise unlawful)
- Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (vacatur decision depends on seriousness of deficiencies and disruptive consequences)
- Chamber of Commerce v. SEC, 443 F.3d 890 (D.C. Cir. 2006) (courts may consider industry disruption when deciding vacatur)
- North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008) (vacatur may be appropriate where other statutory/regulatory measures mitigate disruption)
- Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8 (D.D.C. 2007) (vacatur is the standard remedy for NEPA violations in this district)
- Reed v. Salazar, 744 F. Supp. 2d 98 (D.D.C. 2010) (exemplary district decision ordering vacatur for NEPA violation)