Archive for the ‘Federal Rules of Civil Procedure’ Category

Last Week in Online Environmental Impact Statements: Bogue Banks and Butterfish

While Federal agencies are required to prepare Environmental Impact Statements in accordance with 40 CFR Part 1502, and to file the EISs with the EPA as specified in 40 CFR 1506.9, the EPA doesn’t yet provide a central repository for filing and viewing EISs electronically. Instead, each week they prepare a digest of the preceding week’s filed EISs, which is published every Friday in the Federal Register under the title, “Notice of Availability” (NOA). However, starting October 1, 2012 all EIS submissions must be made through e-NEPA. An EPA source says that as EISs begin to come in electronically, they will appear alongside EPA comments here.

In the meantime, we’ve done the dirty work for you. Below, we’ve located and linked to the EISs referenced in last week’s NOA. Please note that some of these documents can be very large, and may take a while to load.

You can read any available EPA comments on these EISs here.

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EIS No. 20130236, Final EIS, NIH, MD, National Institute of Health Animal Center Master Plan, Review Period Ends: 09/16/2013, Contact: Valerie Nottingham 301–496–7775. Website.

EIS No. 20130237, Final EIS, NMFS, NJ, FEIS Amendment 14 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan, Review Period Ends: 10/14/2013, Contact: Aja Szumylo 978–281–9195. Website.

EIS No. 20130238, Draft EIS, USACE, NC, Bogue Banks Coastal Storm Damage Reduction, Comment Period Ends: 09/30/2013, Contact: Eric Gasch 910–251–4553. Website.

EIS No. 20130239, Draft EIS, BLM, USFS, CO, Northwest Colorado Greater Sage-Grouse Draft Resource Management Plan Amendment, Comment Period Ends: 11/13/2013, Contact: Erin Jones 970–244–3008. The U.S. Department of the Interior’s Bureau of Land Management and the U.S. Department of Agriculture’s Forest Service are joint lead agencies for the above EIS. Website.

EIS No. 20130240, Draft EIS, USA, AZ, PROGRAMMATIC—Yuma Proving Ground Activities and Operations, Comment Period Ends: 09/30/2013, Contact: Mr. Chuck Wullenjohn 928–328–6189. Website.

EIS No. 20130241, Final EIS, USACE, FL, Tarmac King Road Limestone Mine, Review Period Ends: 09/16/2013, Contact: Edward Sarfert 850–439–9533. Website.

EIS No. 20130242, Final EIS, FHWA, IN, I–69 Evansville to Indianapolis, Indiana Project, Section 5, Bloomington to Martinsville, Contact: Michelle Allen 317- 226–7344. Under MAP–21 section 1319, FHWA has issued a single FEIS and ROD. Therefore, the 30-day wait/review period under NEPA does not apply to this action. Website.

EIS No. 20130243, Draft EIS, FHWA, DE, US 113 North/South Millsboro South Area, Comment Period Ends: 10/04/2013, Contact: Nick Blendy 302–734–2966. Website.

Out With The “Federal Defendant” Rule, and In With Private Party Intervention!

On January 14, 2011, the Ninth Circuit issued a decision in Wilderness Society v. U.S. Forest Service that overturned the so-called “federal defendant” rule, which “categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act (NEPA).”

Photo by PunkJr. Some rights reserved.

The rule – instituted more than two decades ago by Churchill County v. Babbitt – was “reversed and remanded” by the decision, on the grounds that it was “at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases.”

While Procedure 24 permits anyone who “claims an interest relating to the property or transaction that is the subject of the action” to intervene in a case, the judges in the Churchill County v. Babbitt found that “because NEPA requires action only by the government [..] a private party cannot ‘comply’ with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action.”

Luckily, the Ninth Circuit realized last week that the NEPA-specific rule was, as Sidley Austin put it in a recent Environmental Update, an “anomaly.” Going forward, “this ruling will allow parties with a cognizable interest in an agency decision under NEPA, such as an Environmental Impact Statement and Record of Decision, to seek to intervene in both the merits and remedy stages of a lawsuit challenging that decision,” wraps up a related E-Alert from Nossaman.

If you can judge the importance of a court decision by the number of law firm memos that analyze it and how quickly they are published, then surely this decision is worth noting. Only four days after the decision was announced, three law firms concurrently published alerts detailing its “broad ramifications” and “substantial implications.” In addition to Sidley Austin and Nossaman, Morrison Foerster also reported thoroughly on the decision.

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