Holdings by Supreme Court nominee Clarence Thomas in the body of a decision recently handed down could represent the most significant decision interpreting the National Environmental Policy Act (NEPA) since Methow Valley. Three key elements were addressed that are important for the ski resort industry: the number and nature of alternatives to be considered; the consideration of the environmental impacts themselves; and the retaining of consultants.
The case, titled Citizens Against Burlington, Inc. v. Busey, was in the U.S. Court of Appeals, District of Columbia Circuit. Although binding only in that circuit, it is likely to be influential elsewhere, if only because of its author.
The case involved an environmental impact statement (EIS) prepared for the Federal Aviation Administration (FAA), which analyzed a proposed airport expansion that was intended to fuel the local economy. The EIS was prepared by a third-party consultant selected by the proponent and analyzed only the proposed expansion and a no-action alternative. Nevertheless, the EIS was upheld in a decision that provides new direction on the analysis of alternatives, description of environmental impacts, and use of consultants.
Alternatives — The court held that the EIS properly analyzed only two alternatives, confirming that an agency need not always study a range of alternatives from a broad geographic area. In reaching this conclusion, the court indicated that:
- An agency need only analyze those alternatives that achieve its goal, which, in turn, is shaped by the agency’s statutory mandate and the proponent’s objectives.
- Where the agency’s goal involves stimulating the local economy, the agency need only analyze local alternatives.
- Where the proponent independently determines that certain alternatives are infeasible, the agency can reject such alternatives.
This part of the holding is significant for the ski industry because it arguably indicates that the Forest Service may summarily reject alternatives that do not further a ski area’s objectives or are otherwise infeasible, such as the development of other sites.
Environmental Impacts — The court also upheld the EIS against arguments that the environmental impacts could have been better presented in another manner and did not address the adverse economic impacts on other expansion sites that were not selected. In doing so, the court indicated that:
- An agency may present information on environmental impacts using any methodology or format it wishes so long as it is not arbitrary.
- An EIS need not discuss the impacts at alternative sites of not implementing the project there.
Consultants — Finally, the court held that even though it is a technical violation of the CEQ regulations for the proponent to select the third-party consultant, this violation is not actionable. According to the court, so long as the consultant has no financial or other interest in the “outcome” of the EIS, the manner in which it is selected and retained will not affect the validity of the EIS.
While there are many similarities between ski area development and an airport expansion from a NEPA standpoint, there is also an important difference. The Forest Service has a public interest mandate driving its consideration of proposed projects on federal lands, whereas the FAA is required by the Airline Deregulation Act of 1978 to allow the free market to determine airport locations. This difference means that the applicability of Citizens Against Burlington to agencies like the Forest Service is not completely clear.
