The California Department of Transportation (Caltrans) proposed widening US Highway 101 through a state park in the redwood forests. Some citizens and environmental groups sued, claiming Caltrans did not comply with the National Environmental Policy Act (NEPA) because Caltrans did not prepare an Environmental Impact Statement (EIS). The district (trial level) court ordered Caltrans to stop the project and prepare an EIS.
FONSI Complied with NEPA
In Bair v Caltrans, the US Court of Appeals for the 9th Circuit reversed the district court and determined Caltrans did not need to prepare an EIS. The 9th Circuit determined Caltrans had complied with NEPA when it issued a Finding of No Significant Impact (FONSI) based on an Environmental Assessment (EA) of the project.
NEPA requires an EIS for federal projects “significantly affecting the quality of the human environment.” NEPA can apply to state projects with substantial federal funding, such as for highways. However, NEPA allows agencies to prepare a more limited EA to determine if an EIS is required. If the EA concludes no EIS is required, the agency issues a FONSI, which should briefly present “the reasons why the proposed action will not have a significant impact on the human environment.”
Determinations Were within the Agency’s Expertise
The 9th Circuit disagreed with the district court’s ruling that Caltrans had not adequately considered the effects of the project in making the FONSI. For example, in widening the highway, larger trucks will be permitted on this section. Caltrans determined widening the highway will lessen the risks of accidents, even with the larger trucks. Caltrans also determined the project will neither remove nor have any detrimental effect on any old-growth trees. The 9th Circuit ruled the administrative record supported these and other determinations, all of which were within Caltrans’ expertise. Thus, Caltrans did not violate NEPA in issuing the FONSI and not preparing the more detailed EIS.
For a copy of the 9th Circuit’s opinion https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/19-16478.pdf
December 10 Presentation
You are welcome to attend my presentation “The Impact of the Election on the Law and Clients” via Zoom from noon to 1 PM Central on Thursday December 10, 2020. If interested, please send an email to Jackie Krejci, email@example.com, and she will have the Zoom link sent to you. She can also provide the continuing education information.