Legal Commentary

Last week, the Supreme Court granted cert in Winter v. NRDC, a case involving, inter alia, the Navy?s compliance with environmental review requirements under the National Environmental Policy Act (NEPA) prior to its use of sonar in a manner allegedly harmful to marine mammals off the coast of California. In short, the Navy conducted an Environmental Assessment (a preliminary study to determine if more in-depth review is necessary) and found that, with some mitigation measures, its sonar activities would not give rise to a ?significant effect? on the environment and thus did not require to a full Environmental Impact Statement (EIS). Environmental groups sued seeking to have the Navy conduct more detailed environmental review and won a preliminary injunction barring certain Navy exercises prior to the completion of a full EIS. The Council on Environmental Quality (CEQ) thereafter attempted to exempt the Navy from preparing an EIS based on a finding of ?emergency circumstances? under 40 C.F.R. § 1506.11, which provides:

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

I say ?attempted? because CEQ?s interpretation of ?emergency circumstances? was rejected by both the district court and the Ninth Circuit. The Supreme Court has now granted cert to consider, in part, the failure of the lower courts to credit CEQ?s decision.

Something that interests me about this case is whether CEQ?s actions will be treated as the type of politicized agency action that the Court appears to have approached with a hostile attitude of late. In Massachusetts v. EPA: From Politics to Expertise (2007 Sup. Ct. Rev. 51, 52), Jody Freeman and Adrian Vermuele argue persuasively that ?the Court majority's increasing worries about the politicization of administrative expertise, particularly under the Bush administration? motivated the Court to ?to override executive positions that they found untrustworthy, in the sense that executive expertise had been subordinated to politics? in cases such as Massachusetts v. EPA, Gonzales v Oregon, and Hamdan v Rumsfeld. Thus, if CEQ?s attempted intervention fits the mold of this kind of politicized agency action, perhaps the Court will be less inclined to credit it.

In some ways, CEQ?s intervention looks like the aforementioned type of politicized agency action. After all, CEQ resides in the Executive Office of the President and CEQ apparently approved the Navy?s request for an exemption after only four days and without considering the full record. (NRDC?s Reply refers to the process as ?an ex parte proceeding before the White House CEQ.?) And one gets the sense from the Ninth Circuit?s opinion that it may well have had in mind various recent examples of politicized agency action ? EPA?s refusal to recognize carbon dioxide as a pollutant under the Clean Air Act, EPA?s refusal to grant California a waiver to set stricter emission standards, etc.

In other ways, however, CEQ?s actions in Winter don?t quite fit the same politicization mold. For one thing, here CEQ?s judgment accords with that of the Navy so there is no interagency pressure being exerted. (It is unfortunate but usual in NEPA litigation for environmental review documents to be prepared by the government agency seeking to undertake an action.) Nor does there appear to have been intra-agency pressure exerted ? I?m unaware of any allegations of disagreement within CEQ about the grant of the exemption. The exercise of executive political will in this instance was not directed intra- or interagency to override administrative expertise, but instead seems to have been directed at the legal process. It will be interesting to see whether/how these dynamics play out in the Supreme Court?s consideration of the case.