HEARTWOOD, INC., еt al., Plaintiffs-Appellants, v. United States Forest Service, et al., Defendants-Appellees.
No. 00-1230
United States Court of Appeals For the Seventh Circuit
Argued June 6, 2000--Decided October 18, 2000
Before Bauer, Manion, and Williams, Circuit Judges.
Appeal from the United States District Court for the Southern District of Illinois. No. 98 C 4289--J. Phil Gilbert, Judge.
I
Plaintiffs mount a facial challenge to certain categorical exclusions (“CEs“) that have been promulgated by the United States Forest Service, pursuant to the National Environmental Policy Act (“NEPA“),
The Council on Environmental Quality (“CEQ“) administers NEPA and promulgates regulations related to NEPA that are binding on federal agencies. See
To effectuate the goals of NEPA, the CEQ created rules requiring agencies to establish implementing procedures that facilitate the evaluation of managеment decisions and the environmental effects of proposed federal agency actions. Under these guidelines, an agency must identify those actions which normally require an environmental impact statement, or “EIS.” See
In order to determine whether a particular proposed action requires the preparation of an EIS, agencies perform an environmental assessment (“EA“). An EA is a public document (shorter than an EIS) that contains information pertaining to the need for the proposed action, other alternatives, the environmental impact of the proposal and its alternatives, and other relevant information. An agency may prepare an EA for one of several reasons: (1) to provide evidence and analysis that establish whether or not an EIS or a Finding of No Significant Impact (“FONSI“)
When an agency identifies certain actions that do not have any significant effect on the environment, the agency may classify those actions as categorical exclusions or CEs. Under NEPA and CEQ regulations, if an action falls within a particular categorical exclusion, the agency need prepare neither an EIS nor an EA. The CEQ requires federal agencies to design procedures for establishing CEs. Specifically, a CE is
a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (sec. 1507.3) and for which, therefore, neither an environmental assеssment nor an environmental impact statement is required. An agency may decide to prepare environmental assessments for the reasons stated in sec. 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
At issue are a set of new policies and procedures established to replace those originally published in the Federal Registеr in June 1985 (50 Fed. Reg. 26078). Specifically, Plaintiffs are concerned about the impact of a set of CEs for timber harvests on Service land. When the Service adopted the new policy and procedures that set forth the challenged CEs, it published a notice which read:
Based on experience and environmental analysis, the implementation of the revised Forest Service environmental policy and procedures will not significantly affect the quality of the human environment, individually or cumulatively. Therеfore, this action is categorically excluded from documentation in an environmental impact statement or an environmental assessment.
The Service gave notice on April 29, 1991 that it was adopting revised policies and procedures for implementing NEPA and CEQ regulations and set forth its proposal for those new policies and procedures. The Service did not produce a formal document in the form of an EA or an EIS prior to publishing the notice. After the Service made the
Plaintiffs’ complaint contained three separate counts./2 On appeal, Plaintiffs challenge only the district court‘s ruling on Count II. In short, Plaintiffs maintain thаt, in adopting its procedures for identifying CEs, the Service violated NEPA and the APA, as well as other CEQ and Department of Agriculture regulations./3 They claim that the Service, (1) failed to conduct an EA on the proposed CE procedures and instead issued a finding of no significant impact (“FONSI“) for the CE procedures (or alternatively, failed to conduct a more extensive EIS once it was known that a FONSI was not appropriate); (2) failed to address or consider extraordinary circumstances before issuing the CEs; аnd (3) utilized a “case-by-case” CE procedure in part in an attempt to avoid NEPA requirements. On a motion for summary judgment, the district court ruled in favor of the Service on Count II.4
II
A. Justiciability
As always, before the court may consider the merits of a case, we must determine whether Plaintiffs’ have presented a justiciable claim. The Service insists that since Plaintiffs have challenged Service plans rather than a specific action that definitively affects a particular forest area, this challenge raises a quеstion as to both standing and ripeness.
1. Standing
The Service maintains that Plaintiffs have failed to establish that they suffered a cognizable injury. Under
[B]ecause they do allege that they use and enjoy the Service lands upon which their claims are based, both in the Southern District of Illinois and elsewhere throughout the United States, Service decisions here ‘will diminish this use and enjoyment.’ This potential harm would result directly from the Service‘s lack of compliance with NEPA and federal regulations, so that the harms would be ‘causally connected’ to the defendants’ actions.
The Supreme Court recently held that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth v. Laidlaw Evtl. Servs., 120 S.Ct. 693, 705 (2000) (citations omitted). Faced with a question similar to the one posed here, in Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998), we held that the plaintiffs had standing. In Rhodes, the court permitted plaintiffs to challenge the categorical exclusion of controlled burn and shrub removal in a lоcal forest preserve. “[P]laintiffs do have standing because they allege that they use Burke Branch, that the defendant‘s decision will diminish this use and enjoyment, and that the defendant‘s failure to permit them to participate in the public review of the decision is causally connected to their harm. This is enough to show Article III standing.” Rhodes, 153 F.3d at 787.
The Service makes no attempt to distinguish the instant case from Rhodes, and with good reason. The facts in Rhodes are similar to those in this case. The Rhodes plaintiffs challenged a forest ranger‘s authority to burn and remove shrubs without conducting an EA. In his defense, the forest ranger reliеd on the fact that the controlled burn and shrub removal were categorical exclusions under the Service‘s implementing procedures. Rhodes, 153 F.3d at 786. Here, Plaintiffs challenge the Service‘s establishment of CEs without performing an EA on the overall effect of the rules. While there may
The Service also suggests that Plaintiffs’ claims implicate a procedural right only. Lujan v. Defenders of Wildlife, 504 U.S. at 571-72, makes clear that assertion of a procedural right, unconnected to a plaintiff‘s concrete harm, is not enough to convey standing. Here, Plaintiffs assert that the Service deprived them of the opportunity to participate in the process of establishing the rules for creating categorical exclusions. However, Lujan also says that “[t]he person who has been accorded a prоcedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Lujan, 504 U.S. at 573 n.7. Still, the Service insists that Plaintiffs’ failure to specify the when, where, and how of its injury should be fatal. We believe that Plaintiffs have sufficiently alleged that they would use and enjoy Service lands that they believe would be affected by the challenged policy decisions.
Under Rhodes, where the Service fails “to permit [plaintiffs] to participate in the public review of the decision” to establish a categorical exclusion and forego performance of an EA, and this decision affects plaintiffs’ ability to use and enjoy Service land, this is enough to show Article III standing. Plaintiffs allege more than just a procedural injury here. They claim that their use of certain national forests and other areas was harmed by the enactment of several categorical exclusions and that if an EA or EIS had been performed, the Service could have made that known and Plaintiffs’ harm would have beеn lessened or avoided. Plaintiffs present detailed information as to how their interests are affected by the categorical exclusion rule in various declarations from Heartwood members.5 As such, we conclude that Plaintiffs have standing.
2. Ripeness
The Service maintains that “only when a specific project is authorized at a specific National Forest pursuant to a categorical exclusion will a challenge to that categorical exclusion be ripe for judicial resolution.” In support of this argument, the Service relies upon the Supreme Court‘s decision in Ohio Forestry Ass‘n v. Sierra Club, 523 U.S. 726, 733 (1998).
Plaintiffs allege that under Defendant‘s theory of ripeness, the Service‘s failure to produce an EA or an EIS before establishing the rules creating new CEs means that they will be unable to challenge Service activity in areas they use and enjoy. In an еxtended discussion of standing and ripeness, this court has held that “a plaintiff clearly has standing to sue where there is a concrete injury underlying the procedural default even if the plan [is] not implemented immediately.” Sierra Club v. Marita, 46 F.3d 606, 612 (7th Cir. 1995) (plaintiff appealed issuance of final management plan which would direct Service activities in particular areas). “Once the plan has passed administrative review, the procedural injury has been inflicted. Unless a plaintiff‘s purported interest in the matter is wholly speculativе, waiting any longer to address that injury makes little sense.” Id. Very much like the plaintiffs in Marita, Plaintiffs in this case “need not wait to challenge a specific project when their grievance is with an overall plan.” Marita, 46 F.3d at 614. Having found that Plaintiffs’ claim is justiciable, we will proceed to the merits.
B. Merits
Plaintiffs maintain that the Service violated NEPA by failing to prepare an EA to analyze the effects of its CE rules. In response, the Service contends that when it established the CE rules, it was adopting an agency procedure, not instituting a “federal action” to which NEPA‘s EA and EIS regulations apply. The Service argues it did all that it was required to do, in that it complied with the CEQ‘s NEPA regulations by consulting with the CEQ during development of the CEs and by obtaining proper CEQ review. The Service maintains that NEPA did not require it to conduct an EA or an EIS when creating procedures for the identification of CEs. The question then
The district court agreed with the Service and rejected Plaintiffs’ argument сalling for an EA on the impact of the proposed categorical exclusion rules. The court noted, “[t]he adoption of a list of categories is not implementation of a specific policy or statutory program, nor a plan for action in any sense of the phrase. . . . To propose that such a document be prepared for types (categories) of actions that do not concern a specific proposed action in a specific location seems beyond the Court‘s comprehension.” The court also found that an EA or EIS would have been meaningless. Since such an EA would have been come prior to the adoption of the individual categorical exclusions, the Service could not have provided an accurate analysis of the potential environmental consequences posed by the exclusion of the different CEs.
We find that the district court did not err in reaching the conclusion that the Service had not violated NEPA or the APA. The Service action creating CEs looks more like an implementing procedure than a federal action of the type contemplated in
Plaintiffs believe that the promulgation of the CE rules falls into one of the categories listed in
Additionally, categorical exclusions, by definition, do not have a significant effect on the quality of the human environment. The Service and other agencies are authorized under NEPA to create their own procedures and to utilize CEs in order to make a threshold determination as to which actions normally have a significant effect on the environment. The Service provided the following statement in its notice adopting the new policy and procedure for categorical exclusions:
Based on experience and environmental analysis, the implementation of the revised Forest Service environmental policy and procedures will not significantly affect the quality of the human environment, individually or cumulatively. Therefore, this action is categorically excluded from documentation in an environmental impact statement or an environmental assessment.
57 Fed. Reg. 43,180 (Sept. 18, 1992) (emphasis added). The language of this statement does not indicate that by enacting this rule, the Service would be authorizing any activity or committing any resources to a project that might impact the environment. Yet, Plaintiffs seem to suggest that conducting an EA is the only way to determine whether or not the revised policy and procedures will significantly affect the quality of the environment. We have found nothing in the
Plaintiffs make a number of other arguments, many of which simply confuse the issues involved. Much of the confusion is due to the fact that Plaintiffs misconstrue the Service‘s position. The Service does not argue that NEPA does not apply to CEs, only that under NEPA and the regulations interprеting NEPA, its decision to issue the CE rules without doing an EA was proper. Many of the cases Plaintiffs cite in support of their argument are inapposite. The plaintiffs in those cases challenge an agency‘s decision not to conduct an EA for a specific project or agency proposal that the agency deemed to fall within a particular CE. That is not the issue presented here. Here, Plaintiffs challenge the Service‘s creation of the categories in and of themselves without preparing an EA. While the Service could have prepared an EA to try and gauge the impact specific CEs might have, it was not required to do so. As such, in deciding against using its resources to conduct a formal EA before promulgating the new CEs, the Service did not violate NEPA or the APA, nor did it abuse its discretion or act arbitrarily or capriciously.
III
Having found that neither NEPA nor CEQ regulations required the Service to conduct an EA or an EIS prior to the promulgation of its procedures creating categorical exclusions, we AFFIRM the judgment of the district court.