Indiana Law Review


"We Don't Fish in Their Oil Wells, and They
Shouldn't Drill in Our Rivers":* Considering
Public Opposition Under NEPA and the Highly

Controversial Regulatory Factor

Emily M. Slaten

Introduction

In July 2008, a group of fishermen celebrated a district court's decision that

prohibited an oil company from drilling under a revered Michigan river.' The
court stopped the drilling after finding that federal agencies arbitrarily and

capriciously decided that the project would have no significant impact on the

environment.^ Interestingly, the fishermen, who had zealously opposed this
project for years, had little influence on the court's ultimate decision.^ This Note

takes issue with this apparent irony: the affected people who voice concerns have
little input on whether a project will significantly affect the quality of their

environment.

Under the National Environmental Policy Act of 1969 (NEPA),"^ whether a
proposed federal project will "significantly [affect] the quality of the human
environmenf^ is a "threshold determination"^ that directs an agency to develop

an environmental impact statement.^ To determine what is meant by
"significantly," the executive branch's Council on Environmental Quality^ has set

* Jeff Kart, Anglers to Sue to Stop Drilling Near Mason Tract, Bay City TIMES, June 8,
2005, at Al.

** J.D. Candidate, 20 1 0, Indiana University School ofLaw—^Indianapolis; B.A., 2007, Saint
Louis University, St. Louis, Missouri.

1

.

See Anglers ofthe Au Sable v. U.S. Forest Serv. (Anglers II), 565 F. Supp. 2d 812, 840

(E.D. Mich. 2008); see also Sheri McWhirter, Judge Won 't Allow Drilling in Mason Tract, THE

Record-Eagle, July 13, 2008, at State and Regional News.

2. ^wg/era//, 565 F. Supp. 2d at 815-16.

3. See id. at 827-29.

4. The National Environmental Policy Act of 1969, 42 U.S.C. §§ 432 l-4370f (2006).

5. Id. § 4332(C) ("[A]ll agencies of the Federal Government shall . . . include in every

recommendation or report on proposals for legislation and other major Federal actions significantly

affecting the quality of the human environment, a detailed statement by the responsible official

.

. .
.").

6. William Murray Tabb, The Role ofControversy in NEPA : Reconciling Public Veto with
Public Participation in EnvironmentalDecisionmaking, 2 1 Wm. &MARYEnvtl. L. & POL'Y REV.
175,185-86(1997).

7. .4«g/er5 //, 565 F. Supp. 2d at 823-24.

8. Council on Environmental Quality, 40 C.F.R. §§ 1500.1 to -.6 (2010). The Council on

Environmental Quality was created by NEPA and is authorized "to establish regulations setting
forth environmental review procedures to be followed by federal agencies." Advocates for Transp.

Alternatives, Inc. v. U.S. Army Corps ofEng'rs, 453 F. Supp. 2d 289, 299 (D. Mass. 2006) (citing

42 U.S.C. §§ 4342, 4344). ,^ ,



1 320 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

forth regulations which require a federal agency to consider both context and

intensity of the project and has offered ten factors to evaluate intensity.^ This

Note concentrates on the fourth ofthese regulatory factors, "[t]he degree to which

the effects on the quality of the human environment are likely to be highly
controversial."*^ In focusing on what it refers to as "the highly controversial

factor," this Note considers Professor William Murray Tabb's decade-old

proposal in The Role of Controversy in NEPA: Reconciling Public Veto with
Public Participation in Environmental Decisionmaking.

*

' Although his proposal

had little effect on the traditional interpretation ofthe highly controversial factor,

this Note submits that now, over a decade later, the argument to include public

opposition under this factor is even more persuasive. Indeed, this proposal seems
even more appropriate in light of the growing criticisms of NEPA,'^ recent
attention given toward advancing public participation in NEPA,'^ and increasing

environmental justice concerns.
^"^

Specifically, this Note focuses on a recent case applying the traditional

interpretation of the highly controversial factor, Anglers ofthe Au Sable v. U.S.
Forest Service. ^^ As referred to in this Note, "the traditional interpretation"
recognizes that highly controversial in mostjurisdictions "means more than mere
public opposition; it requires 'a substantial dispute ... as to the size, nature, or

effect of the major federal action.'"*^ According to this interpretation, "[a]

substantial dispute exists when 'evidence, raised prior to the preparation of an
[environmental impact statement] or [finding of no significant impact], casts

serious doubt upon the reasonableness of the agency's conclusions.'"*^ The
district judge in Anglers applied the traditional interpretation and declined to

credit the magistrate judge's finding that significant public opposition met the

9. 5^^40C.F.R. § 1508.27.

10. Id. § 1508.27(b)(4).

1 1

.

Tabb, supra note 6, at 1 85-86.

12. See Bradley C. Karkkainen, Whither NEPA? , 12 N.Y.U. Envtl. L.J. 333, 343 (2004);
Matthew J. Lindstrom & Zachary A. Smith, The National Environmental Policy Act:
Judicial Misconstruction, Legislative Indifference, & Executive Neglect, 10 (2001).

13. See Council on Environmental Quality, Executive Office of the President, A
Citizen's Guide to the NEPA: Having Your Voice Heard (2007).

14. See Uma Outka, NEPA and Environmental Justice: Integration, Implementation and
Judicial Review, 33 B.C. Envtl. Aff. L. Rev. 601, 602-8 (2006).

15. 565 F. Supp. 2d 812, 827-29 (E.D. Mich. 2008).

1 6. Id. at 827 (citations omitted); see also Nw. Bypass Group v. U.S. Army Corps ofEng'rs,

552 F. Supp. 2d 97, 135 (D.N.H. 2008) ("'Controversial' is not synonymous with 'opposition.'"

(quoting Coliseum Square Ass'n v. Jackson, 465 F.3d 215, 234 (5th Cir. 2006))). But see San Luis

Valley Ecosystem Counsel v. U.S. Forest Serv., No. 04-CV-01071-MSK, 2007 U.S. Dist. LEXIS

36242 at *32 (D. Colo. May 17, 2007) ("[E]ffects of the exchange in this case are highly

controversial, as evidenced by the number of public comments received by the Agency.").

17. Anglers II, 565 F. Supp. 2d at 827-28 (quoting Nat'l Parks & Conservation Ass'n v.
Babbitt, 241 F.3d 722, 736 (9th Cir. 2001)).



20 1 0] PUBLIC OPPOSITION UNDER NEP

A

1321

highly controversial factor,
^^

This Note argues that interpreting the highly controversial factor in this

traditional, narrow manner limits the apparent purpose ofNEPA and deprives the
public of its full participation in the statute's procedures. Part I provides an

overview of NEPA's history, procedural requirements, and developments,
including both the beginnings of the highly controversial factor's traditional

interpretation and Tabb's proposal to measure public opposition. Part II

examines this interpretation in action by highlighting its irony and ineffectiveness

in Anglers. Finally, Part III outlines the reasoning behind the traditional

interpretation and revives Tabb's proposal by discussing why public opposition
should be considered more fully under the highly controversial factor today.
Specifically, courts should consider public opposition because the opposing

public who must resort to challenging a finding of no significant impact in court
faces many barriers and because the existence of opposition in a democratic
society, even if ill-informed, should warrant more information and participation

in decisionmaking.

I. The National Environmental Policy Act OF 1969 19

NEPA sets forth the federal government's broad approach to environmental
policy, which is focused primarily on requiring agencies to consider the

environmental impact or federal projects.^^ Most criticisms of this approach,
however, are not aimed at NEPA itself but, rather, attack the failure of the
executive and judicial branches to effectuate NEPA's purposes through its
implementation.^* In particular, federal agencies and courts have misinterpreted

the highly controversial factor for decades by ignoring public opposition, thereby

undermining the purposes ofNEPA.^^

A. NEPA's History and Development

Referred to as the "natural environment's Magna Carta,"^^ Congress enacted
NEPA in 1969 as "the first comprehensive statement ever issued by the
government articulating a stance on the environment."^"* Its passage in the late

1960s was a product of increased environmental awareness, as Congress had

already passed several acts during the decade to address specific environmental

18. Mat 828-29.
19. The National Environmental Policy Act of 1969, 42 U.S.C. §§ 432 l-4370f (2006).

20. Linda Luther, Order Code RL 33 1 52, The National Environmental Policy Act:
Background and Implementation 1-6 (2005).

2 1

.

LiNDSTROM & Smith, supra note 1 2, at 1 0, 27.
22. Tabb, 5wpranote 6, at 188.

23. LiNDSTROM & Smith, 5w/7ra note 12, at 4.
24. Adrienne Smith, Note, Standing and the National Environmental Policy Act: Where

Substance, Procedure, and Information Collide, 85 B.U. L. REV. 633, 634 (2005). For more

information on NEPA's beginnings see generally Luther, supra note 20.



1 322 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

issues. ^^ These acts, however, failed to incorporate specific issues into

management of the environment as a whole.^^ With NEPA, Congress finally
announced a coordinated national environmental policy.^^ In other words, "[i]t

was the intention of NEPA's authors that a coordinated and comprehensive
analysis of ecological and social impacts of federal decisionmaking replace the

ad hoc, fragmented status quo in policy formulation."^^

As its primary enforcer, the judicial branch has held an extraordinary role in
NEPA's interpretation and implementation.^^ The Supreme Court identified
NEPA's dual aims in Baltimore Gas and Electric Co. v. Natural Resources
Defense Council, Inc?^ First, agencies must "consider every significant aspect

of the environmental impact of a proposed action."^ ^ Second, the agency must

"inform the public that it has indeed considered environmental concerns in its

decisionmaking process."^^ Because ofthe second aim ofthe statute, "NEPA has
become one of the primary mechanisms through which the public is able to
participate in the federal decision-making process.

"^^

Unlike other environmental statutes, NEPA does not contain substantive
regulations.^"^ Instead, it provides a fi*amework for promoting the environmental

values it contains.^^ NEPA's stated purposes reflect these values:

To declare a national policy which will encourage productive and
enjoyable harmony between man and his environment; to promote efforts
which will prevent or eliminate damage to the environment and
biosphere and stimulate the health and welfare of man; to enrich the

understanding ofthe ecological systems and natural resources important

to the Nation; and to establish a Council of Environmental Quality.^^

These stated purposes indicate that NEPA's authors were concerned with not only
the environment but also the human population's interaction with its
environment.^^ This "harmony" presumably includes both the negative effects of

25

.

LiNDSTROM & Smith, supra note 1 2, at 1 8-2 1

.

26

.

Id. at 20-2 1 ("Until the passage ofNEPA, attempts to deal with environmental issues were

routinely isolated, ad hoc, and incremental. . . . The evolution offederal institutions lacked a clear

doctrine and locus of political responsibility for the whole natural environment.").

27. Id. at 24.

28. Id

29. Luther, supra note 20, at 9- 1 0.

30. 462 U.S. 87(1983).

31. Id. at 97 (quoting Vt. Yankee Nuclear Power Corp. v. Natural Resources Defense

Council, Inc., 435 U.S. 519, 558 (1978)).

32. Id. (citations omitted); see also Anglers ofthe Au Sable v. U.S. Forest Serv. {Anglers 11),
565 F. Supp. 2d 812, 823 (E.D. Mich. 2008).

33. Luther, supra note 20, at 1

.

34. LiNDSTROM & Smith, supra note 1 2, at 9.
35. Id

36. ITie National Environmental Policy Act of 1 969, 42 U.S.C. § 432 1 (2006).

37. See id.



20 1 0] PUBLIC OPPOSITION UNDER NEPA 1 323

human interaction and the welfare gained by humans who enjoy the
environment.^^ Consider also Congress's declaration of national environmental

policy:

The Congress, recognizing the profound impact of man's activity on the
interrelations of all components of the natural environment . , . and

recognizing further the critical importance of restoring and maintaining

environmental quality to the overall welfare and development of man,

declares that it is the continuing policy of the Federal Government, in

cooperation with . , . concerned public and private organizations ... to

create and maintain conditions under which man and nature can exist in
productive harmony , . . .^^

Notwithstanding this statement ofnotable environmental policy, a federal agency

may proceed with a project at the quality ofthe human environment's expense as
long as it complies with NEPA's requirements."^^

NEPA has been criticized in its execution despite its ambitious purposes and
goals."^' In The National Environmental Policy Act: Judicial Misconstruction,

Legislative Indifference, & Executive Neglect, Matthew J. Lindstrom and Zachary
A. Smith contend that both the executive and judicial branches have undermined

NEPA's effectiveness by applying "a very narrow, crabbed interpretation in
implementing [the Act]" and failing to recognize "the comprehensive core and

long-term view embedded within NEPA.'"*^ They spread the blame for NEPA's
failure among each branch ofgovemment."^^ Similarly, NEPA has been criticized
for being a mere procedural hurdle to federal action."^ As such, citizens may only
challenge procedural defects and not substantive results of agencies' actions.

"^^

However, Lindstrom and Smith argue that "[t]he authors ofNEPA intended more
from their work than the watered-down, expensive, procedural paper chase that
characterizes NEPA's implementation in federal agencies today. '"^^ Nonetheless,
courts' decisions to treat NEPA as merely procedural have "expand[ed] the range

38. Id.

39. Id. § 433 1(a). Congress also charged the federal government with the responsibility "to

use all practicable means, consistent with other essential considerations of national policy, to . . .

assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing

surroundings." Id. § 4331(b)(2).

40. Luther, supra note 20, at 1

.

41. See Lindstrom & Smith, supra note 1 2, at 1 0.
42. Id

43. Id
^

44. Id. at 27; see also Karkkainen, supra note 12, at 342-43 n.41 (citing Strycker's Bay

Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980) (noting "that although NEPA
establishes 'significant substantive goals for the Nation, it imposes upon agencies duties that are

"essentially procedural," designed to ensure fully informed decision-making'")).

45. Smith, supra note 24, at 636 (citing Strycker 's Bay, 444 U.S. at 227-28).

46. Lindstrom & Smith, supra note 12, at 27.



1 324 INDIANA LAW REVIEW [Vol. 43:1319

of agency discretion and weaken[ed] NEPA's influence. '"^^ The argument that
courts have similarly misinterpreted the highly controversial factor to exclude

public opposition is yet another example of how various judicial interpretations
have drastically undermined the legislative purposes ofNEPA.

B. The Procedural Requirements—Significant and Environmental
Impact Statements

Although NEPA embodies the legislative branch's national environmental
protection goals, the executive branch's Council on Environmental Quality

(CEQ) provides the regulations to implement the statute's broad aims."^^ First, the
CEQ grants much discretion to any federal agency, regardless of its
environmental expertise, that proposes a project with a potentially significant

impact on the human environment."^^ Known as the "lead agency,"^^ the
proposing agency determines whether the project will in fact have a significant

impact on the quality of the human environment that would require an
environmental impact statement, identifies other federal agencies to assist in

developing the environmental impact statement, and decides whether to proceed

with the project despite detrimental effects on the environment or disapproval of

experts.^^ The CEQ directs the lead agency to classify federal actions under three
categories. ^^ The first category includes those actions that typically require an
environmental impact statement; the second includes those that normally require

neither an environmental impact statement nor an environmental assessment; and

47. Karkkainen, supra note 12, at 343.

48. Luther, 5wpra note 20, at \\seeAOC.VR. §§ 1500-1508(2010). The CEQ recognized
its purpose:

[NEPA] is our basic national charter for protection of the environment. It establishes

policy, sets goals (section 101), and provides means (section 102) for carrying out the

policy. Section 1 02(2) contains "action-forcing" provisions to make sure that federal

agencies act according to the letter and spirit of the Act. The regulations that follow

implement section 102(2). Their purpose is to tell federal agencies what they must do

to comply with the procedures and achieve the goals of the Act. The President, the

federal agencies, and the courts share responsibility for enforcing the Act so as to

achieve the substantive requirements of section 101.

Id. § 1500.1(a). The CEQ also reinforced NEPA's policy: "Federal agencies shall . . . [ejncourage
and facilitate public involvement in decisions which affect the quality ofthe human environment."

Id. § 1500.2(d).

49. Wendy B. Davis, The Fox is Guarding the Henhouse: Enhancing the Role ofthe EPA in

FONSI Determinations Pursuant to NEPA, 39 AKRON L. Rev. 35, 37 (2006); see also 40 C.F.R.

§ 1501.5.

50. See 40 C.F.R. § 1508.16 (noting that "[l]ead agency means the agency or agencies

preparing or having taken primary responsibility for preparing the environmental impact

statement").

5 1

.

Davis, supra note 49, at 35-37.

52. Tabb, supra note 6, at 180-81 (citing 40 C.F.R. § 1507.3(b)(2)); see also 40 C.F.R. §

1501.4.



20 1 0] PUBLIC OPPOSITION UNDER NEP

A

1 325

the third includes those that typically require an environmental assessment but not

necessarily an environmental impact statement, ^^ The second category, known
as "categorical exclusions,"^"* includes routine agency actions with traditionally

non-significant environmental impacts that are altogether exempted from the

NEPA process. ^^
The lead agency's first step in the NEPA process is to develop an

environmental assessment (EA),*^^ a concise summary and analysis of the
proposed federal action that aids in the determination of whether to prepare an

environmental impact statement (EIS) or a finding of no significant impact

(FONSI).^^ An EA simply determines whether a project will significantly affect
the environment

—
"it does not balance different kinds of positive and negative

environmental effects, one against the other; nor does it weigh negative

environmental impacts against a project's other objectives . . . ."^^ In determining

what is meant by "significantly," the CEQ directs agencies to consider both the
context and intensity of the project and offers ten factors to evaluate intensity.

^^

53. Tabb, supra note 6, at 180-81 (citing 40 C.F.R. § 1507.3(b)(2)).

54. Id. at 181 (quoting 40 C.F.R. § 1508.4, 1507.3).

55. Id.

56. See 40 C.F.R. § 1508.9 ("Environmental assessment: Means a concise public document

. . . that serves to . . . [bjriefly provide sufficient evidence and analysis for determining whether to

prepare an [EIS] or [FONSI] . . . .")•

57. See Advocates for Transp. Alternatives, Inc. v. U.S. Army Corps ofEng'rs, 453 F. Supp.

2d 289, 299 (D. Mass 2006) (quoting 40 C.F.R. § 1508.9(a)(1)).

58. Id at 301 (quoting Sierra Club v. Marsh, 769 F.2d 868, 875 (1st Cir. 1985)).

59. 5ee 40 C.F.R. § 1508.27:

Significantly as used in NEPA requires considerations of both context and intensity:
(a) Context. This means that the significance of an action must be analyzed in

several contexts such as society as a whole (human, national), the affected region, the

affected interests, and the locality. Significance varies with the setting ofthe proposed

action. For instance, in the case of a site-specific action, significance would usually

depend upon the effects in the locale rather than in the world as a whole. Both short-

and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must

bear in mind that more than one agency may make decisions about partial aspects of a

major action. The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may
exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics ofthe geographic area such as proximity to historic or

cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or

ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are

likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly

uncertain or involve unique or unknown risks.



1 326 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

Ifthe lead agency determines that the proposed action will have a non-significant

effect on the human environment, it issues a FONSI.^^ More or less, the
"practical effect of a determination of 'no significant impact' is that it limits

agency responsibility to investigate, study, consider alternatives to, and disclose

to the public, the potential adverse effects of a project."^'

A lead agency only develops an EIS for those projects deemed to have a
significant effect on the quality ofthe human environment.^^ An EIS is a detailed
statement that fully discloses "all information pertaining to significant

environmental impacts of major federal projects for the benefit of the wider

audience of the public and other governmental units."^^ But "[a]n [EIS] is more

than a disclosure document. It shall be used by Federal officials in conjunction

(6) The degree to which the action may estabHsh a precedent for future actions

with significant effects or represents a decision in principle about a future consideration. .

(7) Whether the action is related to other actions with individually insignificant

but cumulatively significant impacts. Significance exists if it is reasonable to anticipate

a cumulatively significant impact on the environment. Significance cannot be avoided

by terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways,

structures, or objects listed in or eligible for Hsting in the National Register ofHistoric

Places or may cause loss or destruction of significant scientific, cultural, or historical

resources.

(9) The degree to which the action may adversely affect an endangered or

threatened species or its habitat that has been determined to be critical under the

Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or

requirements imposed for the protection of the environment.

60. 40C.F.R. § 1508.13.

6 1

.

Tabb, supra note 6, at 1 82.

62. Anglers of the Au Sable v. U.S. Forest Serv. {Anglers II), 565 F. Supp. 2d 812, 823-24

(E.D. Mich. 2008). Consider also the definition of"human environment" in 40 C.F.R. § 1508.14:

Human environment shall be interpreted comprehensively to include the natural and

physical environment and the relationship of people with that environment. (See the

definition of "effects" (§ 1508.8).) This means that economic or social effects are not

intended by themselves to require preparation of an environmental impact statement.

When an environmental impact statement is prepared and economic or social and

natural or physical environmental effects are interrelated, then the environmental impact

statement will discuss all of these effects on the human environment.

63. Tabb, supra note 6, at 184 (citation omitted); see 40 C.F.R. § 1502.1:

The primary purpose of an [EIS] is to serve as an action-forcing device to insure that

the policies and goals defined in the Act are infused into the ongoing programs and

actions of the Federal Government. It shall provide full and fair discussion of

significant environmental impacts and shall inform decisionmakers and the public of

the reasonable alternatives which would avoid or minimize adverse impacts or enhance

the quality of the human environment.



2010] PUBLIC OPPOSITION UNDER NEP

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1327

with other relevant material to plan actions and make decisions."^ After
preparing a draft EIS, an agency must invite and consider comments from other
agencies and the public and must respond to those comments in its final EIS.^^
Although CEQ regulations direct agencies to involve the public in the federal
actions requiring an EIS, each individual agency determines its public

involvement policies in those actions that only require an EA or result in a
categorical exclusion.^^ As discussed more ftilly below, this practice is
particularly troublesome fi"om an environmental justice perspective because

traditionally most actions only require an EA.^^

Finally, lead agencies file final EISs with the Environmental Protection

Agency (EPA)^^ for its review, and the EPA may then refer matters to the CEQ
if it "determines that the proposed action is detrimental to public health, welfare,

or environmental quality."^^ However, the EPA need not review an EA or an
agency's decision to issue a FONSI.^^ Instead, an agency's decision to issue a

FONSI and not prepare an EIS is judicially reviewed under the arbitrary and
capricious standard.^* Under this standard, the court determines whether the

64. 40C.F.R. § 1502.1.

65. Id. §§ 1503.1, 1503.4.

66. Luther, supra note 20, at 27; see 40 C.F.R. § 1 506.6, in relevant part:

Agencies shall:

(a) Make diligent efforts to involve the public in preparing and implementing their

NEPA procedures.
* * *

(c) Hold or sponsor public hearings or public meetings whenever appropriate or in

accordance with statutory requirements applicable to the agency. Criteria shall include

whether there is:

(1) Substantial environmental controversy concerning the proposed action or

substantial interest in holding the hearing.

* * *

(d) Solicit appropriate information from the public.

(e) Explain in its procedures where interested persons can get information or status

reports on environmental impact statements and other elements of the NEPA process.
67. See Outka, supra note 14, at 606-07.

68. 40 C.F.R. § 1506.9.

69. Davis, supra note 49, at 37.

70. Id.

1 1 . Anglers ofthe Au Sable v. U.S. Forest Serv. (Anglers II), 565 F. Supp. 2d 8 1 2, 82 1 (E.D.
Mich. 2008) ("Where the Court must rule based on review of administrative agency's final

decision, review is governed by the Administrative Procedure Act. The APA provides that a court
should set aside an agency's decision if it is 'arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.'") (citations omitted); see also Advocates for Transp.

Alternatives, Inc. v. U.S. Army Corps ofEng'rs, 453 F. Supp. 2d 289, 299 (D. Mass 2006) (citing

The Administrative Procedure Act of 1946, 5 U.S.C. § 706(2)(A) (2000)).



1328 INDIANA LAW REVIEW [Vol. 43: 13 19

agency considered factors not intended by Congress, ignored a significant issue

altogether, or provided an explanation that is either not founded in the evidence

or ''is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise."^^

C. The Highly Controversial Regulatory Factor
r

As mentioned above, the fourth factor agencies consider when determining
whether a proposed action will significantly affect the quality of the human
environment is "the degree to which the effects on the quality of the human
environment are likely to be highly controversial."^^ One of the earliest cases to
examine the highly controversial factor involved the Army Corps of Engineer's
determination that an EIS was not necessary for the construction of a marina and

piers on North Carolina's outer banks.'^'^ In that case, the court rejected "the

suggestion that 'controversial' must necessarily be equated with opposition.
"^^

That court reasoned:

The term should properly refer to cases where a substantial dispute exists

as to the size, nature or effect of the major federal action rather than to

the existence of opposition to a use. Otherwise, to require an impact

statement whenever a threshold determination dispensing with one is

likely to face a court challenge would surrender the determination to

opponents of a federal action, no matter whether major or not, nor how
insignificant its environmental effect might be.^^

This reasoning has influenced the majority of courts in their interpretation of the

highly controversial factor today.^^ However, consider the irony in this

practice—ifNEPA purports to involve the public in decisionmaking, courts and
agencies should in fact give weight to substantial public opposition in

determining whether to develop an EIS.^^

On the other hand, only a few courts have strayed from the traditional
interpretation and substituted a more sensible approach that considers public
opposition under the highly controversial factor. ^^ In a case involving the

exchange of federal lands for non-federal lands, the U.S. District Court for the

72. Anglers II, 565 F. Supp. 2d at 821 (quoting Motor Vehicles Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

73. 40 C.F.R. § 1508.27(b)(4).

74. Rucker v. Willis, 484 F.2d 158, 159 (4th Cir. 1973).

75. /J. at 162.

76. Id. (citing Hanly v. Kleindienst, 471 F.2d 823, 830 (2nd Cir. 1972)).

77. For an analysis of courts' justifications for the traditional interpretation, see infra text

accompanying notes 157-203.

78. Tabb, supra note 6, at 1 88.

79. See Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d 428, 432 (8th Cir. 2004); San Luis

Valley Ecosystem Counsel v. U.S. Forest Serv., No. 04-01071, 2007 U.S. Dist. LEXIS 36242, at

*32-33 (D. Colo. May 1 7, 2007); Anglers ofthe Au Sable v. U.S. Forest Serv. (Anglers II), 565 F.

Supp. 2d 812, 828 (E.D. Mich. 2008).



2010] PUBLIC OPPOSITION UNDER NEPA 1329

District of Colorado determined that the agency's decision not to develop an EIS

disregarded the highly controversial factor. ^^ The court acknowledged that

although the focus is not generally on the project's popularity, the number of
public comments indicated that the effects of the land exchange were highly

controversial.^' As discussed more fully below, Magistrate Judge Charles E.
Binder in Anglers similarly reasoned that "the intensity of the public comment
made at eveiy opportunity makes clear that this project is 'likely to be highly
controversial' within the meaning of the CEQ regulations."^^ Another court
contemplated, "Even if public opposition could create a controversy, ... If a

controversy existed, it was resolved."^^ Arguably, these opinions apply a sensible

interpretation ofthe factor and ask a reasonable question: given all ofthis public

opposition, how could this project not be highly controversial?^"^
Professor William Murray Tabb extensively researched and analyzed this

factor over a decade ago in The Role ofControversy in NEPA: Reconciling Public
Veto with Public Participation in Environmental Decisionmaking}^ Tabb
outlined courts' interpretations of the highly controversial factor through 1997^^

and proposed a "multi-factored test" to guide courts and agencies when analyzing
this factor.^^ Among other things, the test focused on the origin, quantity, and
timing of the opposition and how agencies had addressed these concems.^^
Unfortunately, courts have mostly ignored Tabb's proposal and continue to

narrowly interpret the highly controversial factor today.
^^

II. Anglers OF THEAuSable v. U.S. ForestService

Last summer, a group of fishermen cheered a district court's decision that

80. San Luis Valley, 2007 U.S. Dist. LEXIS 36242, at *32-33.

81. Mat*32:

The Agency also disregarded the controversial effects of the exchange. It concluded

that under NEPA, the popularity and acceptance of a proposed action is not pertinent

to whether an action's effects are controversial, and thus disregarded public opposition

to the exchange. It is true that the focus is upon the effects ofa proposed action, rather

than the action's popularity as a general matter. However, the effects of the exchange

in this case are highly controversial, as evidenced by the number of public comments

received by the Agency.

82. Anglers II, 565 F. Supp. 2d at 828.

83. Heartwood, Inc., 380 F.3d at 432.

84. See Heartwood, 380 F.3d at 432; Anglers II, 565 F. Supp. 2d at 828; San Luis Valley,

2007 U.S. Dist. LEXIS 36242, at *32.

85. Tabb, i-wj^ra note 6. / \

86. Tabb identified approximately twenty cases where courts found either sufficient or

insufficient controversy under the highly controversial factor. See id. at 188-90.

87. Mat 190-91.
88. Id. For Tabb's test, see iw/rflf text accompanying notes 205-08.

89. See, e.g., Bering Strait Citizens for Responsible Res. Dev. v. U.S. Anny Corps ofEng'rs,

524 F.3d 938, 957 (9th Cir. 2008); Anglers II, 565 F. Supp. 2d at 827; Nw. Bypass Group v. U.S.

Army Corps of Eng'rs, 552 F. Supp. 2d 97, 135-36 (D.N.H. 2008).



1330 INDIANA LAW REVIEW [Vol. 43:1319

federal agencies had acted arbitrarily and capriciously in not preparing an EIS

before issuing a permit to drill for oil under one of Michigan's most highly

regarded rivers.^^ These fishermen had zealously opposed this project for years.^*

Nevertheless, the federal districtjudge applied the traditional interpretation ofthe

highly controversial factor and concluded that the magistrate judge improperly

considered their opposition.^^ This case highlights the irony behind the traditional

interpretation; it ignores the affected people in determining whether a project will

significantly affect their environment.^^

Moreover, Anglers demonstrates the urgent need for courts to reconsider their

traditional interpretation ofthe highly controversial factor. The project in Anglers
illustrates the nation's current quest for energy-independence, as it involved a

permit to drill for oil.^"^ Unfortunately, drilling for oil under Huron-Manistee

National Forest in Michigan would emit odors and noise, affect visual aesthetics

and recreational tourism, and disrupt wildlife and old growth forest.^^ Therefore,

despite its potential energy value, many people opposed this project:

Sure, this nation needs every drop of oil we can get. But we're not so
hard up that we need to mess with one of the few truly wild areas we
have left in Michigan. Once and for all, leave the Mason Tract and the
area immediately around it alone. For anglers and others, that little slice

of Michigan is sacred.^^

The foresight of this newspaper editorial is profound; indeed, it is likely that
drilling projects will continue to threaten highly regarded land throughout the

country as the government struggles to break its dependence on foreign oil.^^

Therefore, it is even more imperative that courts reconsider their traditional
interpretation of the highly controversial factor in order to grant the public a

mechanism through which it may successfully participate in the development of
such projects.

90. See Anglers II, 565 F. Supp. 2d at 840; see also McWhirter, supra note 1.

91. Kart, 5wpr« note *.

92. y4«g/er5//, 565 F. Supp. 2d at 828-31.

93. Id.

94. Mat 817-19.
95. Mat 818-20.
96. Op-Ed., Keep Holy Waters Safefrom Nearby Oil, Gas Exploration, BayCityTmes, July

25, 2008, at A8.

97. Compare this project with a recent proposal to drill for uranium in Charleston, Missouri,

a small town in Southeast Missouri. A Colorado geologist has worked to gain local support by
setting up an office in the town to speak to the locals about the proposed project. He has asked

landowners and farmers to "sign on" to the project and allow him to lease a small portion of their

land to drill. Although this project does not fall under NEPA (presumably because it is not a
federal action), it is a good example ofhow public comment and opposition when combined with

further information and participation in decisionmaking can lead to successful results. See Holly

Brantley, Land Owners Sign Offto Let Geologist Drillfor Uranium, HEARTLAND NEWS, Oct. 9,

2008, http://www.kfvs.com/Global/story.asp?S=9 1 53468.



2010] PUBLIC OPPOSITION UNDER NEPA 1331

A. Background, Public Comment, and Preliminary Injunction

The specific project at issue in Anglers involved the U.S. Forest Service's
(USPS) and U.S. Bureau of Land Management's (BLM) decision to issue an
exploratory gas and oil drilling permit to Savoy Energy, L.P, ("Savoy") w^ithout

preparing an EIS.^^ Savoy held three federal and three state leases for subsurface

oil and gas within the Huron-Manistee National Forest ("Huron Forest") totaling

approximately 640 acres.^^ Savoy applied for a permit to drill a directional gas

v^ell from surface land inside the Huron Forest into its lease holdings under an
area known as the Mason Tract. '^^ The "development involve[d] clearing,
grading, and leveling a 3.5 acre well pad, preparing a production facility

approximately 1 .5 miles from the well, and constructing a pipeline connecting the

two locations."'^*

The Mason Tract, Savoy's "drilling target," is state-owned land named after
George W. Mason who deeded the 4,700 acres to Michigan in the 1950s.'^^
Mason gifted these acres on the condition that Michigan maintain the land in a
natural, wilderness state. *^^ According to the court, the Mason Tract is "one of
the most revered sections of forest in all of Michigan."'^"^ The Au Sable River's
South Branch, "one of the continent's most hallowed fishing sites,"'^^ winds

through the Mason Tract. '^^ The Mason Tract was designated a "[sjemi-primitive
[n]on-motorized (SPNM) area" and then an "old grov^h" region in 2003.'^'^ The
Mason Tract's only development includes one campground, one log chapel, and
a few unimproved, seasonably passable roads. ^"^^ Savoy proposed to position the

well pad, well head, and portion of the pipeline in the SPNM area, while
maintaining the actual production facility and remainder of the pipeline outside

of the SPNM area.^^^ Although the proposed well site was roughly 1650 feet
from the Mason Tract, Savoy also planned to develop roads within the tract for
all-season travel.''^

After completing an EA in August 2004, the USES issued a FONSI in 2005;

98. Anglers of the Au Sable v. U.S. Forest Serv. (Anglers 7), 402 F. Supp. 2d 826, 828-29

(E.D. Mich. 2005).

99. Anglers II, 565 F. Supp. 2d at 8 1 7.

100. Mat 817-18.
101. Id

102. Mat 818.
103. Id

104. Id

1 05

.

Keith Gave, AngryAnglers Vow Legal Fight to Stop Drilling on Mason Tract, BAY CiTY

Times, Feb. 7, 2005, at El.

106. Anglers ofthe Au Sable v. U.S. Forest SeiY. (Anglers I), 402 F. Supp. 2d 826, 829 (E.D.

Mich. 2005).

107. Anglers II, 565 ¥. Supp. 2d at SIS.

108. ^«g/er5 /, 402 F. Supp. 2d at 829.

109. ^«g/er5//, 565 F. Supp. 2d at 818-19.

110. ^«g/er5 7,402 F. Supp. 2d at 829. y.



1332 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

it did not prepare an EIS/'' Shortly thereafter, a local newspaper reported that

"[t]o the surprise ofvirtually no one, the federal government gave its blessing last

week to a Northern Michigan-based energy company to begin exploratory drilling
for natural gas."''^ Savoy apparently received a drilling permit on August 4,
2005.''^ The Anglers of the Au Sable (Anglers) and other plaintiffs filed suit on
June 8, 2005, alleging that the USPS and BLM violated their duties under several
federal statutes, including failing to prepare an EIS under NEPA.'^"^ The Anglers
rightfully and passionately opposed the project arguing "[w]e don't fish in their

oil wells, and they shouldn't drill in our rivers."''^ Magistrate Judge Charles E.

Binder initially received the case for general case management, but the Anglers'

motion for preliminary injunction temporarily withdrew the case back to District

Judge David M. Lawson.^^^
In December 2005, the U.S. District Court for the Eastern District of

Michigan granted a temporary restraining order and preliminary injunction to

enjoin Savoy's exploratory oil and gas drilling operations in the Huron-Manistee

111. Anglers II, 565 F. Supp. 2d at 8 1 9.

112. Gave, supra note 105. For more newspaper coverage of this case see Agency Delays

Decision on Mason Tract Drilling, BAY ClTY TIMES, Jan. 18, 2005, at A5; John Bebow, Well

Drilling Project Stirs Refuge Issues; Mason Tract Oil and Gas Plan Spotlights Need to Protect

Wilderness Areas, Senator Says, DETROIT NEWS, July 1 1, 2003, at IC; John Bebow, Au Sable

Drilling Plan Stirs Anger; Anglers Howl as Company Moves to Drillfor Oil and Natural Gas

Under Mason Tract, DETROITNEWS, June 29, 2003, at 1 A; Opposition Strong to Drilling NearAu

Sable River; Foes Fear Exploratory Well Will Harm River's Quality, GRAND RAPIDS PRESS, June

28,2003, at Dl.

113. ^«g/er5//, 565 F. Supp. 2d at 819-20.

114. M at 8 1 5, 8 1 9-20. Tim Mason, George Mason's grandson, was also named as a plaintiff.
Id. at 8 1 2. Consider Tim Mason's statement: "Tlie Mason family has joined this fight because the

Forest Service proposal goes against everything from [sic] grandfather sought to do by giving the

Mason Tract to the people of Michigan." Kart, supra note *.

115. Id. The article continued:

The plaintiffs believe plans by Savoy Energy of Traverse City to drill for oil and gas in

the Huron National Forest will desecrate "one of the nation's most important

conservation gems, the Mason Tract on the South Branch of the Au Sable River in

Michigan—the site on which Trout Unlimited was founded." . . . [T]he Forest Service
has rejected better, alternative sites and allowed Savoy to push ahead with its plans,

endangering the river and ignoring thousands ofcomments from people nationwide who

have called "for the protection of this pristine waterway, where thousands of

Michiganders go fly-fishing each year."

Id. ; see also Critics File Suit Over Gas Drilling; Lawsuit Claims Project Could Ruin Tranquility

ofArea, GRAND RAPIDS PRESS, June 12, 2005, at B3 ("Critics say the project could ruin the

tranquillity ofthe area, known for its pine and hardwood stands and the Mason Chapel, an open-air

church on the Au Sable riverbank.").

1 16. Anglers II, 565 F. Supp. 2d at 815; Anglers ofthe Au Sable v. U.S. Forest Serv. {Anglers

/), 402 F. Supp. 2d 826, 828 (E.D. Mich. 2005).



2010] PUBLIC OPPOSITION UNDER NEPA 1333

National Forest.^ ^^ In its order, the court identified substantial evidence that

undermined the USFS's decision to issue a FONSI, including the unique
geographical characteristics ofboth the Mason Tract and South Branch ofthe Au
Sable; the harm to aesthetic and recreational enjoyment caused by noise, odor,
and visual impacts; and the adverse impacts to the local tourism economy, old-

grov^th area, and wildlife, including threatened or endangered species."^ The
order also cited declarations by a Professor of Forestry at the University of

Michigan and a former Wildlife Chief for the Michigan Department of Natural

resources, both ofwhom supported the Anglers' position. '^^

Perhaps even more importantly, the preliminary injunction order considered

many public comments submitted to the USFS during the EA drafting process
that opposed the project because of its irreparable harm to the local
environment. ^^^ Several groups and individuals submitted comments that mostly

opposed the disruption of the old-growth area and its wildlife and consequent

harm to tourism and the recreational experience.'^' Those voicing their concerns
about the project included: the Michigan Environmental Council; the Michigan

Department of Natural Resources; the County of Crawford; several state and

federal senators and representatives, including U.S. Senator Debbie Stabenow;

the Michigan governor; '^^ Michigan Trout Unlimited; a biology professor; and

an elderly man who has enjoyed the Mason Tract for decades.'"^ The court also
considered the general public interest finding that "there is a strong public interest

in preserving national forests in their natural states and ensuring that the dictates

of NEPA are complied with."'^"* With the award of the preliminary injunction,
the Anglers successfully put Savoy's drilling on hold.'^^

1 1 7. Anglers I, 402 F. Supp. 2d at 828.

118. Mat 832-35.
119. Mat 833-36.
120. Mat 837-38.
121. M
122. M Although the Anglers I court noted the Michigan governor's concerns in its December

2005 opinion, the following newspaper quote suggests that she may not have always publicly

shared these feelings: "Now if we could just get Gov. Jennifer Granholm and others who care

about this magnificent state to feel the same way, there may be a chance to get the feds who have

authorized drilling for gas and oil along the hallowed Mason Tract to back off." Keith Gave,

Pristine Land Could Use Some Special Intervention, BAY CiTY TIMES, Apr. 21, 2005, at A3.

123. Anglers I, 402 F. Supp. 2d at 837-38.

124. Id at 839 (citing Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1 125 (9th Cir.

2002)).

1 25. Hugh McDiarmid, Jr., Outdoors Gem Gets Reprieve; Judge: Firm Can 't Clear Landfor
Drills, Detroit Free Press, Dec. 8, 2005, at 3:

Drilling for natural gas in a forest revered by anglers and solitude seekers is temporarily

on hold. . . . Conservationists hailed the ruling as a victory, although it lasts only until

U.S. District Judge David Lawson makes a more permanent decision on a lawsuit

seeking to block the drilling. . . . The Courts are showing what Michigan anglers have

known all along: that the Au Sable River is one of the most special places in our state



1334 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

B. A Winfor the Anglers: The Magistrate Judge 's Report Requiring an EIS

With the drilling on temporary hold, the district court turned to whether the

USPS had in fact acted arbitrarily and capriciously in its decision to issue a
FONSI instead ofpreparing an EIS.'^^ The Anglers ultimately succeeded in this
decision because the court found that the USPS was in fact required to prepare an
EIS.'^^ Although the magistrate judge offered a broader interpretation of the

highly controversial factor, the district judge rejected that interpretation for the

traditional approach that refuses to acknowledge public opposition. '^^ This case

exemplifies the irony and backwardness of this interpretation.

Magistrate Judge Binder's report offered a much broader interpretation ofthe
highly controversial factor than the traditional interpretation applied by District

Judge Lawson.^^^ Overall, Magistrate Judge Binder found that the USPS acted
arbitrarily and capriciously in issuing a PONSI because it violated NEPA's
guidelines. *^^ He strongly doubted that "a gas well drilling project that admittedly
would alter scenic and primitive areas for up to 30 years, double noise levels in

areas isolated from human contact, involve clearing old growth forest, and emit
petroleum and engine exhaust odors would [have] no significant environmental

impact."'^^ According to Magistrate Judge Binder, USPS paid only "lip
service"'^^ to at least four significant environmental impacts: "(1) the effect on

visual aesthetics; (2) emission of odor; (3) noise levels; and (4) disruption of

protected wildlife and old growth forest."^^^ Pinally, he considered the public's

concern and reasonably concluded that "the intensity ofthe public comment made
at every opportunity makes clear that this project is * likely to be highly
controversial' within the meaning of CEQ regulations. "^^"^ Given the amount of
attention awarded to public comment in Judge Lawson's preliminary injunction
order and the high profile nature of the case. Magistrate Judge Binder likely

believed that it was only sensible to consider public opposition under the highly

controversial factor.
'^^

Savoy objected to the Magistrate Judge Binder's report issued on June 20,
2006 that recommended that the court grant Angler's motion for summary

and shouldn't be hastily destroyed.

Id. (quotations omitted).

1 26. Anglers ofthe Au Sable v. U.S. Forest Serv. {Anglers II), 565 F. Supp. 2d 8 1 2, 840 (E.D.

Mich. 2008).

127. Mat 830-33.
128. Id at 827-28. Although Magistrate Judge Binder's report was not published, District

Judge Lawson sufficiently summarized his reasoning. See id. at 820, 828.

129. /J. at 828-29.

130. Mat 820.
131. Id

132. Id.

133. Id

134. Mat 828.
135. See supra text accompanying notes 1 20-25

.



2010] PUBLIC OPPOSITION UNDER NEPA 1335

judgment and deny Savoy's cross motion for summary judgment. ^^^ District
Judge Lawson considered the case and issued an opinion in July 2008.'^^

C. A Winfor the Anglers, Sort-of: The District Judge 's Decision
Requiring an EIS

Although ultimately agreeing that USPS acted arbitrarily and capriciously,
District Judge Lawson took issue with Magistrate Judge Binder's "highly
controversial" finding.

'^^
District Judge Lawson recognized that the public was

mostly concerned with the project's visual impact and noise.^^^ For Judge

Lawson, however, these concerns were not enough. ^^^ He wrote:

However, the plaintiffs demonstrate only mere public opposition; they

present no evidence disputing the size, nature, or effect ofthe project. At

no point do the plaintiffs assert that the defendants failed to analyze some
likely effect ofthe proposed drilling, nor do they challenge the credibility

of the defendant's experts, data, or methodology. Instead, the plaintiffs

cite general concerns about the impact ofthe drilling and criticisms ofthe

EA. The plaintiffs are not entitled to manufacture controversy in such a
manner.

^"^^

According to Judge Lawson, "requiring an EIS based on nothing more than
public controversy over the significance of the effects disclosed in the EA
penalizes an agency for precisely the type of candid disclosure that NEPA seeks
to promote."'"*^ He also acknowledged that the USPS did in fact consider and
respond to the public's concerns in many ways.'"*^ Finally, District Judge Lawson
reasoned that NEPA's command is mainly procedural and because the plaintiffs
produced only public opposition—not evidence of a substantial dispute or of the
USFS's failure to consider public concerns—the project's environmental impact
was not "likely to be highly controversial within the meaning of the CEQ
regulations."'"^

Of course, a win was a win for the Anglers—"[t]he tranquility of the Holy
Waters [was] once again safe from the disruption of oil and gas exploration."'"*^

The Record-Eagle reported: "Opponents ofa plan to drill for natural gas beneath
a wilderness area known as the Mason Tract are celebrating a federal judge's
decision to block mineral exploration there."'"*^ The Anglers' president stated.

136. Anglers II, 565 F. Supp. 2d at 815.

137. Id

138. Id at 828-29.

139. Id at 828.

140. Mat 828-29.
141. Id at 828.

142. Id. at 829 (citation omitted).

143. Id

144. Id at 829.

145. Op-Ed, supra note 96.

146. McWhirter, supra note 1

.



1336 INDIANA LAW REVIEW [Vol. 43:1319

"George Mason's gift 50 years ago is worth protecting for 50 years from now.

Anything that could affect the river corridor should be highly scrutinized."'"^^

Yet, some criticized the federal government for failing to do its job: "[Are these]
the people we rely on to protect or not our environment? . . . Retrieving oil and
gas is important. The aesthetics and solitude of the land are important. Divining

the place in between is too important a job to be bungled."'"^^

In reality, however, the Anglers' zealous opposition played little role in

convincing the court that at the very least the agencies should have prepared an

EIS for the drilling project. In other words, if the agency had done an adequate

job in preparing the EA and had complied with other procedural requirements,
not even the massive amount of public opposition could persuade the court that

the USPS had acted arbitrarily and capriciously in issuing a FONSI. Consider the
irony: the very humans affected by a project cannot persuade an agency or a court
that a proposed project will have a significant effect on the quality of their

environment. Yet, presumably the affected people would know better than
anyone else the effects of a proposed project on the quality of their environment,

and if they do not yet know, they should be made aware. True, an adequate EA
may consider and address many of the public's concerns,'"*^ but that justification
is hardly sufficient to satisfy citizens who demand at least more information or
investigation into a project's environmental effects and the right to participate in

subsequent decision-making procedures. NEPA's authors envisioned such
access.

^^^
Without a doubt, the Anglers and many others would find it very

disheartening to know that their opposition alone could not require more
environmental studies for the drilling project. Instead, they could only hope for

"botched oversight."'^'

147. Id.

1 48

.

Editorial, Botched OversightHelps No One, TheRecord-Eagle (Traverse City, Mich.),

July 31, 2008, at Commentary.

1 49. See Citizens for Better Forestry v. U.S. Dep't ofAgric, 34 1 F.3d 96 1 , 970 (9th Cir. 2003)

(quoted in Mont. Wilderness Ass'n v. Fry, 310 F. Supp. 2d 1 127, 1 144 (D. Mont. 2004)):

Although we have not established a minimum level ofpublic comment and participation

required by the regulations governing the EA and FONSI process, we clearly have held
that the regulations at issue must mean something. ... It is evident, therefore, that a

complete failure to involve or even inform the public about an agency's preparation of

an EA and a FONSI, as was the case here, violates these regulations,
150. See supra text accompanying note 39, in relevant part: "policy of the Federal

Government, in cooperation with . . . concerned public and private organizations ." See also The

National Environmental Policy Act of 1969, 42 U.S.C. § 4332(C) (2006) ("detailed statement .

.

. shall be made available to . . . the public"); id. § 4345(2) (The CEQ shall "utilize, to the fullest
extent possible, the services, facilities, and information (including statistical information) ofpublic

and private agencies and organizations, and individuals").

151. Editorial, 5w/7ra note 148.



2010] PUBLIC OPPOSITION UNDER NEPA 1337

III. Including Public Opposition Under THE Highly
CONTROVERSL\L FACTOR

Many justifications have been given for the traditional interpretation of the
highly controversial factor.

'^^
But they are weak when one considers the

purposes and policies of NEPA. '^^ The considerations that support including
public opposition under the factor, conversely, effectuate NEPA's aims.'^"* By
revising the traditional interpretation to include opposition, the courts may grant
citizens a mechanism for successfully participating in federal actions that they,
as the affected people, believe will significantly affect them and their
environment.

A. Arguments Against Public Opposition

In a case like Anglers, why did District Judge Lawson insist upon overturning
Magistrate Judge Binder's finding that public opposition satisfied the highly

controversial factor? From a layperson's perspective, it simply makes sense that
the highly controversial factor would encompass such opposition, and this sense

is only heightened when one considers the purposes and policies of NEPA.' ^^

Nonetheless, courts frequently cite manyjustifications for not considering public
opposition under the highly controversial factor.

'^^
Most of these justifications

are practical concerns that consider extra administrative costs in time, money, and

resources.
'^^

Like most value-producing instruments, EISs are expensive and

timely; typically, the thousand-page document takes years to complete and costs

millions of dollars.
'^^

Given these figures alone, one can easily understand why
agencies are rarely pushed to produce EISs. Nonetheless, many courts also
provide more policy-based justifications for the traditional interpretation.'^^ Yet,
unlike the arguments to include opposition, none of these practical or policy

considerations are wholly sufficient to justify the exclusion of public opposition

152. See infra text accompanying notes 157-203.

153. See supra text accompanying note 36 (NEPA's stated purposes) and supra text

accompanying note 40 (declaration of national environmental police).

154. See supra note 153.

155. See supra note 153.

156. 5ee Native EcosystemsCouncilv.U.S.ForestServ., 428 F.3d 1233, 1240 (9th Cir. 2005);

North Carolina v. FAA, 957 F.2d 1 125, 1 134 (4th Cir. 1992); Rucker v. Willis, 484 F.2d 158, 162

(4th Cir. 1973); Anglers of the Au Sable v. U.S. Forest Serv. {Anglers IJf), 565 F. Supp. 2d 812,
828-29 (E.D. Mich. 2008).

157. Bradley C. Karkkainen, Bottlenecks and Baselines: Tackling Information Deficits in

Environmental Regulation, 86 Tex. L. Rev. 1409, 1409 n.6 (2008) (citing Bradley C. Karkkainen,

Towarda SmarterNEPA : Monitoring andManaging Government 's EnvironmentalPerformance,
102 COLUM. L. Rev. 903, 917-19 & nn.64-67).

158. Id

159. See North Carolina, 957 F.2d at 1 1 33-34; Rucker, 484 F.2d at 1 62; Hanly v. Kleindienst,

47 1 F.2d 823, 830 (2nd Cir. 1 972); Nw. Bypass Group v. U.S. Army Corps ofEngr's, 552 F. Supp.

2d 97, 135-36 (D.N.H. 2008).



1338 INDIANA LAW REVIEW [Vol. 43:1319

from the highly controversial factor.

First, many courts reason that considering public opposition under the highly
controversial factor undermines the value of disclosure in an EA.'^^ Consider

again District Judge Lawson's reasoning: "requiring an EIS based on nothing

more than public controversy over the significance of the effects disclosed in the
EA penalizes an agency for precisely the type of candid disclosure that NEPA
seeks to promote."'^^ Similarly, another court reasoned, "[sjimply because a

challenger can cherry pick information and data out of the administrative record

to support its position does not mean that a project is highly controversial ....
[S]uch a standard [would] deter candid disclosure of negative information."'^^

However, NEPA's authors anticipated much more than mere disclosure; instead,
the Act mandated public participation in federal decisionmaking.'^^ Therefore,

the argument that public opposition would undermine an EA's disclosure value
ignores NEPA's second purpose, "to engage the public in the agency deliberative
process.

Second, many courts have expressed concerns over the consequences of
allowing public opposition to trigger an EIS.'^^ Rucker v. Willis^^^ offered the

typical justification: "to require an impact statement whenever a threshold

determination dispensing with one is likely to face a court challenge would

surrender the determination to opponents of a federal action, no matter whether

major or not, nor how insignificant its environmental effect might be."'^^ Another
court reasoned, "opposition, and not the reasoned analysis set forth in an [EA],

would determine whether an environmental impact statement would have to be
prepared."'^^ Similarly, Judge Richard Posner reasoned that most EAs are just as
reliable as the "much lengthier and costlier environment impact statement. . . .
[P]ublic opposition . . . cannot tip the balance. That would be the environmental

counterpart to the 'heckler's veto' ofFirst Amendment law."'^^ But despite these
concerns, the authors ofNEPA purported to allow the public to play some role

1 60. See Anglers II, 565 F. Supp. 2d at 828-29; Native Ecosystems Council, 428 F.3d at 1 240.

161. Anglers II, 565 F. Supp. 2d at 829 (citing Native Ecosystems Council, 428 F.3d at 1240).

162. Native Ecosystems Council, 428 F.3d at 1240:

We decline to interpret NEPA as requiring the preparation of an EIS any time that a
federal agency discloses adverse impacts on wildlife species or their habitat or

acknowledges information favorable to a party that would prefer a different outcome.

NEPA permits a federal agency to disclose such impacts without automatically
triggering the "substantial questions" threshold.

163. See NEPA statutory sections supra note 150 and source cited infra note 164.
164. Tabb, supra note 6, at 175 (citing Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 349(1989)).

1 65

.

See sources cited supra note 159.

166. 484 F.2d 158, 158 (4th Cir. 1973).

167. Id at 162 (citing Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972)).

168. North Carolina v. FAA, 957 F.2d 1 125, 1 133-34 (4th Cir. 1992).

169. River Rd. Alliance, Inc. v. Corps of Engr's of U.S. Army, 764 F.2d 445, 451 (7th Cir.

1985) (citations omitted).



2010] PUBLIC OPPOSITION UNDER NEPA 1339

in federal decisionmaking. ^^^ Even the CEQ regulations recognize that "public
scrutiny [is] essential to implementing NEPA."^^' Furthermore, the EIS, not the

EA, is the action-forcing mechanism ofNEPA. ^ '^ EAs were never intended to be
as reliable as or take the place of EISs; an opposite view would only undermine

the value of any EIS prepared for any project.

Another possiblejustification for the traditional interpretation is that litigation

brought by the opposing public concerning the inadequacy of an EIS or failure

to produce an EIS has historically delayed projects. ^^^ In fact, NEPA's critics
often argue that the Act not only encourages the opposing public to litigate

projects they hope to enjoin, but also that NEPA itself "creates a complicated
array ofregulations and logistical delays that stall agency action."^^"* In actuality,

however, litigation concerning NEPA has declined. ^^^ In 2004, for example, "a
total of 1 70 NEPA-related cases were filed."^^^ Eleven prompted an injunction.

'^^

Nonetheless, if years of litigation often delay FONSI-deemed projects like the
one in Anglers, perhaps it is more time efficient to satisfy public opposition by
preparing an EIS. This practice would only effectuate the action-forcing

mechanism of NEPA and thereby facilitate public involvement. On the other
hand, this alternative closely resembles Judge Posner's "heckler's veto,"^^^ and

even if agencies choose to avoid litigation and prepare an EIS, the public is

unlikely to be adequately served by the "overly lengthy, unreadable, and unused

EISs"'^^ that would probably result from such thinking.

The argument that public opposition is not totally discounted in the highly

controversial factor also justifies the traditional interpretation; instead, the

170. See Luther, supra notQ 20, at I; see also 40 C.Y.R. §§ 1503, 1506.6(2008).

171. 40C.F.R. § 1500.1(b).

1 72. Id § 1502. 1 ("The primary purpose ofan [EIS] is to serve as an action-forcing device to

insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and

actions of the Federal Government,"); see also The National Environmental Policy Act of 1969,

42 U.S.C. § 4332(C) (2006) ("[All] agencies of the Federal Government shall include in every

recommendation or report on proposals for legislation and other major Federal actions significantly

affecting the quality ofthe human environment, a detailed statement by the responsible official on

. . . ."); 40 C.F.R. § 1508.1 1 ("Environmental impact statement means a detailed written statement

as required by section 102(2)(C) of the [NEPA].").

173. Luther, supra note 20, at 2 ("Unlike other environment-related statutes, no individual

agency has enforcement authority with regard to NEPA's environmental review requirements. This

absence of enforcement authority is sometimes cited as the reason that litigation has been chosen

as an avenue by individuals and groups . . . ."). \

174. Id

175. Id at 29.

176. M (citation omitted).
177. Id .

178. River Rd. Alliance, Inc. v. Corps of Engr's of U.S. Army, 764 F.2d 445, 451 (7th Cir.

1985) (citations omitted)

.

1 79. Luther, supra note 20, at 1 1

.



1 340 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

opposition must focus on the technical aspects of the project. *^^ Consider again

Judge Lawson's reasoning in Anglers: "[PJlaintiffs demonstrate only mere public

opposition; they present no evidence disputing the size, nature, or effect of the

project. . . . [Pjlaintiffs cite general concerns about the impact of the drilling and

criticisms ofthe EA."*^^ On the contrary, however, the Anglers did in fact submit
evidence disputing the effect of the project under the traditional approach.

"^^

Second, if the Anglers' supposedly "mere" opposition did not meet the highly

controversial factor, what level or type of controversy would? ^^^ At an
international level, Professors John Devlin and Nonita Yap suggest that
successful opposition is usually "made up ofboth local residents concerned about
the impacts of the project on their livelihoods and intellectuals capable of

contending with the technical details ofthe economic and environmental impacts

of the project."'^"^ Again, it seems as though the Anglers cooperated with

intellectuals (such as the Department of Environmental Quality, Michigan

Environmental Council, and Michigan Department of Natural Resources).
'^^

Nevertheless, the court reasoned that these intellectuals focused mostly on the

project's visual impact and noise—concerns that the court apparently finds
unrelated to the project's size, nature or effect.

^^^

Similarly, some argue that NEPA already focuses too much on adverse
effects, effects that are often echoed by ill-informed public opposition, rather than

broader, long-term benefits. ^^^ For example, Dorothy Bisbee contends that in the

context of off-shore wind farms, NEPA review will likely focus more on local
adverse impacts instead of regional benefits. ^^^ She contends that "[p]opular

visual aesthetic preferences are the primary obstacle to obtaining the emission

reductions and other benefits wind power offers. "^^^ Bisbee's article quotes
arguments much like those offered by the Anglers: "I'm not against wind
turbines. I'm against 130 of them over 400 feet tall right smack in the middle of

one of the most beautifijl places in America."'^^ Cass Sunstein offers a closely

180. Anglers of the Au Sable v. U.S. Forest Serv. (Anglers II), 565 F. Supp. 2d 812, 828-29

(E.D. Mich. 2008).

181. Mat 828.
182. See id. at 826 ("[T]he outpouring of public comments—including comments from

Michigan's Governor, the County ofCrawford, and the Michigan Environmental Council, among

others—suggests that the project's impact on recreation and tourism could be substantial.").
183. For cases illustrating sufficient controversy, see Tabb, supra note 6, at 189-90.

184. .Tohn F. Devlin and Nonita T. Yap, Contentious Politics in Environmental Assessment:

Blocked Projects and Winning Coalitions, 26 IMPACT ASSESSMENT & PROJECT APPRAISAL 17, 25
(2008).

1 85. See Anglers II, 565 F. Supp. 2d at 826.

186. Mat 828.
187. See Dorothy W. Bisbee, NEPA Review of Offshore Wind Farms: Ensuring Emission

Reduction Benefits Outweigh Visual Impacts, 31 B.C. Envtl. Aff. L. Rev. 349, 369 (2004).

188. Mat 350.
189. Id

190. Id. at 369 (citation omitted).



2010] PUBLIC OPPOSITION UNDER NEPA 1341

related argument.'^' He argues that because the public is often ill-informed, its
involvement threatens accurate decisionmaking. ^^^ Although recognizing the

"richness" of public judgment, he warns against relying "entirely on lay

judgments, which are frequently based on conftision, ignorance, and selective

attention.
"'^^ He continues, "[w]hen those judgments are based on

misunderstandings of the facts, they should play no role in policy."'^"^ In other

words, Sunstein believes that allowing a layperson's uninformed opinion to

influence the decision to prepare an EIS would serve little purpose. '^^ Again,

despite these concerns, the CEQ recognized the importance ofpublic scrutiny and
therefore mandated that agencies involve the public/^^

Finally, many courts have also noted that "controversy" and "opposition" are
not synonymous. ^^^ The court in Rucker rejected "the suggestion that
'controversial' must necessarily be equated with opposition."*^^ Similarly, the

court in Northwest Bypass Group v. U.S. Army Corps ofEngineers^^^ reasoned,
"[A]s common sense dictates, the term 'controversial' is not synonymous with
'opposition.

'"^^^ Admittedly, the two words are not synonyms, but they are

actually more similar in meaning than recognized by the courts. Compare the
respective definitions of"controversy" and "oppose" found in a Merriam-Webster

Dictionary: "the act of disputing or contending ... a cause, occasion or instance

of disagreement or contention: a difference marked esp. by the expression of

opposing views"^^' and "to confront with hard or searching questions or

objections."^^^ Underlying both of these definitions is the theme of contrasting,

opposing views and disagreement. Although the courts generally only recognize

opposing views concerning potential environmental effects,^^^ one could easily

argue for an interpretation of "controversial" to include the public's opposing

views toward the project in general.

191. Cass R. Sunstein, Which Risks First?, 1997 U. Cffl. LEGAL F. 101, 103-05 (1997).

192. Mat 104-05. ^

193. Mat 104.
194. Id

195. For more on the development of public participation in environmental decisionmaking

and its problems see Nancy Perkins Spyke, Public Participation in EnvironmentalDecisionmaking

at the New Millennium: Structuring New Spheres ofPublic Influence, 26 B.C. Envtl. Aff. L. Rev.

263 (1999).

196. 5'ee40C.F.R.§§ 1500.1(b), 1506.6(2008).

197. See Rucker v. Willis, 484 F.2d 158, 162(4thCir. 1973) (citingHanlyv.Kleindienst, 471

F.2d 823, 830 (2nd Cir. 1972)); North Carolina v. FAA, 957 F.2d 1 125, 1 133-34 (4th Cir. 1992).

198. Rucker, 484 F.2d at 162 (citing Hanly, 471 F.2d at 830).

199. 552 F. Supp. 2d 97 (D.N.H. 2008).

200. Id. at 135 (citing North Carolina v. FAA, 957 F.2d at 1 134).

20 1

.

Webster's Third New International Dictionary 497 (3rd ed. 1 96 1 ).
202. Mat 1583.
203. See Anglers ofthe Au Sable y. U.S. Forest Serv. {Anglers II), 565 F. Supp. 2d 812, 827

(E.D. Mich. 2008).



1 342 INDIANA LAW REVIEW [Vol. 43:1319

B. For Public Opposition

William Murray Tabb's proposal to weigh public opposition under the highly

controversial factor seems even more appropriate now than a decade ago
considering the recent attention to public participation in NEPA and other
obstacles in NEPA-related litigation.^^"^ In 1997, Tabb offered a "multi-factored

approach ... to guide federal agencies and reviewing courts to evaluate whether

opposition to a major federal project is 'highly controversial' and therefore

influences the determination of 'significance' within the meaning of [NEPA].
"^^^

Specifically, Tabb's approach considered:

(1) the degree of opposition, both in quantitative and qualitative terms;

(2) whether the disputed information is a matter of legitimate scientific

debate regarding the potential environmental impacts of the project; (3)
the stage or timing in which the disputed information is raised and

whether it would serve a useful purpose in light of decisions remaining;

(4) whether the agency has a reasoned plan of mitigation to speak to the

issues raised in opposition to the action; and (5) whether the dispute

involves a matter of objective environmental effects or an issue of a

subjective nature, such as aesthetics.^^^

Note that Tabb did not suggest that any opposition should automatically trigger
the preparation of an EIS or propose to eliminate agencies' roles in

decisionmaking.^^^ Instead, "[t]he methodology proposed reconciles the twin

aims of the statute and reinforces the role of active and meaningful public

participation.
"^^^ Now consider how the public will benefit from either Tabb's

proposal or some variation of a new approach and why a new approach is more
likely to succeed at this time.

First, a proposal to abandon the traditional interpretation and adopt a Tabb-

like approach is more likely to succeed now because a recent publication suggests
that even the CEQ is concerned with public involvement and has recognized that
the forty-year-old Act must be modemized.^^^ In December 2007 the CEQ
expressed its concern with ensuring public participation in the NEPA process in
its publication "A Citizen's Guide to the NEPA: Having Your Voice Heard."^^^

204. See Tabb, supra note 6, at 1 75; see also infra text accompanying notes 209-63.

205. Tabb, supra note 6, at 23 1

.

206. Mat 190-91.
207. Id. at 231. In fact, Tabb reassured that "[a]gencies still would retain considerable

discretion regarding procedural implementation and substantive decisionmaking; however, that

discretion would be tempered by the idea of fully considering relevant disputed information." Id.

208. Id

209. See COUNCIL ON ENVIRONMENTAL QUALITY, supra note \y,see also THE NEPA TASK
Force Report to the Council on Environmental Quality, Modernizing NEPA
Implementation (2003).

210. Council on Environmental Quality, supra note 13. This publication was likely

influenced by a 1997 CEQ study of public stakeholders who felt that some EAs were developed
specifically to avoid the public, that NEPA was too often a "one-way communication process," and



2010] PUBLIC OPPOSITION UNDER NEP

A

1343

The guide was "developed to help citizens and organizations who are concerned
about the environmental effects of federal decisionmaking to effectively

participate in Federal agencies' environmental reviews under the National

Environmental Policy Act (NEPA)."^^^ It instructs the public on proper timing

and method of involvement and even advises on what to do if involvement is not

going well.^'^ But the guide also warns: "[public comment] is not a form of
'voting' on an alternative. The number ofnegative comments an agency receives
does not prevent an action from moving forward."^^^ Apparently, although public
comment is so highly encouraged that the CEQ felt compelled to publish a
handbook, the court in Anglers //makes clear that only public comments focused
on specific, technical aspects of the project ultimately matter.^*"* Moreover, the

public has little incentive to provide comments when they have little effect on the
actual decision-making process.

In addition to this recent publication, several other considerations support

overturning the traditional interpretation and weighing public opposition under

the highly controversial factor. These considerations include: the fact that very

few EISs are actually prepared,^ '^ which suggests an overall weakening ofNEPA
caused by statutory misinterpretation; the numerous barriers that plaintiffs who
judicially challenge agencies' decisions must face;^^^ the argument that many
agencies who decide to issue FONSI have no environmental expertise;^ *^ and the
increasingly widespread theories of environmental justice and democracy.^

^^

These issues, when considered together, greatly support the argument to include
public opposition under the highly controversial factor. The opposing public
must play a role before the agency's decision not to prepare an EIS because the

public is often left afterwards with no remedy.

Bradley Karkkainen has identified a major problem within NEPA today:
"[m]ost NEPA compliance effort[s] these days [go] not into producing fiill-scale
EISs, but into producing slimmed-down documents called environmental

assessments (EAs), designed to produce just enough information to justify a

'Finding ofNo Significant Impact' (FONSI) to get the agency off the hook."^^^
The CEQ has calculated the total number of draft and final EISs prepared from

that comments were sought only after the decision-making process had effectively concluded.

Luther, supra note 20, at 30-3 1

.

211. Council on Environmental Quality, supra note 13, at 1 (citing National

Environmental PoHcy Act of 1969, 42 U.S.C. §§ 4321-4347 (2006) ).

212. Mat 21-30.
213. Mat 27.
214. Anglers ofthe Au Sable v. U.S. Forest Serv. {Anglers II), 565 F. Supp. 2d 812, 828 (E.D.

Mich. 2008).

215. Karkkainen, 5M/7ra note 12, at 347-48.

216. /See />z/ri? text accompanying notes 225-39.

217. Davis, 5w/7r<3note49, at 35.

218. See infra text accompanjang notes 246-63.

219. Karkkaninen, 5w/7r« note 12, at 347.



1 344 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

1973-2007.^^^ Federal agencies prepared 2,036 EISs in 1973, as compared to 557

EISs in 2007.^^' Consider another comparison: 50,000 EAs leading to FONSIs
versus roughly 500 EISs are produced each year,^^^ Thus, it seems that EISs, the

"operative, action-forcing mechanism of NEPA," are infrequently produced.^^^
These statistics likely result from the sources of criticism noted earlier by
Matthew Lindstrom and Zachary Smith, specifically that both the executive and
judicial branches have undermined NEPA's effectiveness by applying "a very
narrow, crabbed interpretation in implementing" the Act and failing to recognize

"the comprehensive core and long-term view embedded within NEPA."^^"^
Therefore, if the courts and agencies were to begin to interpret the highly

controversial factor to include public opposition, it is likely that agencies would

produce more EISs and thereby advance the purposes ofNEPA.
Next, the opposing public who must resort to judicial review of an agency's

decision not to prepare an EIS faces several barriers. Unlike other environmental

statutes, NEPA does not provide for "citizens' suits," which confer standing for
injured citizens who can demonstrate that an agency violated NEPA.^^^
Consequently, citizens must prove standing through the Administrative Procedure

Act (APA).^^^ In general, standing requires proofofthree elements: injury in fact

that is concrete, particularized, and imminent; fairly traceable causation; and

redressability.^^^ However, Adrienne Smith has recently noted the split between

the courts over conferring standing in broad, policy-based NEPA suits.^^^ Finding
fault with both sides' approaches, Smith contends that standing in the NEPA
context should extend to the full Constitutional limits: "[t]he better standing

220. Council on Environmental Quality, Executive Office of the President,

Environmental Impact Statements Filed 1973 Through 2007 (on file with author).

221. Id.

111. Karkkaninen, supra note 1 2, at 347-48 (citing Council on Environmental Quality:

25thAnniversaryReport 51(1 994- 1 995)). In addition, Karkkaninen explains that because draft

EISs precede final EISs, "this figure really represents approximately 250 federal actions per year

that trigger the EIS production process—a vanishingly small number given the scale and scope of
federal operations." Id. at 348.

223

.

Lindstrom & Smith, supra note 1 2, at 63

.

224. Mat 10.
225. Id. at 1 03 ("Legal standing is the broad threshold requirement that plaintiffs must satisfy

in order to present their case in court.").

226. Id. at 105. See The Administrative Procedure Act, 5 U.S.C. § 702 (2000), in relevant

part: "A person suffering legal wrong because ofagency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant statute, is entitled to judicial review thereof"

227. Lujan V. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992). This Note does not provide

a historical development or analysis ofstanding in environmental litigation. For more on standing

under NEPA see Lindstrom & Smith, supra note 12, at 104 n.7; Davis, supra note 49, at 44-47;
and Smith, supra note 24.

228. Smith, supra note 24, at 637-38 ("Specifically, the courts disagree as to the [sic] how

specific the plaintiffs evidence must be to prove the plaintiff is at risk of suffering future

environmental harm.").



20 1 0] PUBLIC OPPOSITION UNDER NEPA 1 345

approach would allow plaintiffs to sue under the theory that an agency harms

individuals and organizations when it deprives them of information that NEPA
requires the agency to disseminate. . . . [C]ourts should evaluate standing in light

of NEPA's core informational objectives."^^^ The argument to include public
opposition under the highly controversial factor is closely related. Because

"informational injury" standing is not widely recognized by the courts, the

opposing public who is denied both subsequent information and participation by
an agency's decision not to prepare an EIS faces a higher standing burden if it

chooses to pursue litigation.^^^ Lack ofstanding could help explain why there has
been less NEPA litigation recently.^^'

The fact that citizens must sue under the APA is also significant in
determining the court's standard for review.^^^ Although somewhat ambiguous,

the APA generally provides that courts review agencies' actions or inactions
under some sort of arbitrary and capricious standard.^^^ To be upheld, the APA
"requires that the federal agency's fmal decision not be 'arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with the law.'"^^"^ Like the

standing split mentioned above, however, different courts apply either more

demanding or more deferential versions of the arbitrary and capricious
standard."^^ The more demanding "hard look" approach offers a two-fold
analysis: first, "whether the agency took a 'hard look' at the possible effects of

the proposed action. . . . Second, . . . whether the agency's decision was arbitrary
and capricious."^^^ On the other hand, the more literal approach is very
deferential to agencies' decisions.^^^ Regardless of the approach, Korey Nelson

recognizes that "[t]he purpose of the EIS goes unfulfilled if agencies do not

'carefully consider' the impacts of their action."^^^ The courts therefore must
strike the proper balance between analyzing the appropriateness of agencies'

229. Id. at 638, 653; accord Davis, supra note 49, at 46.

230. Smith, 5w/?ra note 24, at 638-39.

231. See LUTHER, supra note 20, at 29 (noting two possible reasons for decline in NEPA
litigation, "improved agency compliance" and fewer "major federal actions" under NEPA). In

addition to these reasons, some decline in NEPA litigation may stem from the court's refusal to
permit individuals to sue for informational injury and NEPA plaintiffs difficulty meeting Lujan
standing requirements. See Smith, supra note 24, at 652-55.

232. See The Administrative Procedure Act, 5 U.S.C. § 706 (2000). For more on judicial

review ofNEPA actions, see Korey A. Nelson, CommQnt, Judicial Review ofAgencyAction Under
the National Environmental Policy Act: We Can 't See the Forest Because There Are Too Many

Trees, 17 TUL. Envtl. L.J. 177 (2003).

233. Nelson, ^w/jra note 232, at 181-83. n

234. LiNDSTROM & Smith, supra note 12, at 1 14.
235. Nelson, supra note 232, at 198-99.

236. Nat'l Audubon Soc'y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (citing Vill. of Grand

View V. Skinner, 947 F.2d 651, 657 (2d Cir. 1991)).

237. Nelson, 5w/>ra note 232, at 1 87-90.

238. Id. at 198 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349

(1989)).



1 346 INDIANA LAW REVIEW [Vol. 43 : 1 3 1

9

actions while remaining deferential. As a result, the public who opposes a project
and decides to challenge the issuance of a FONSI in court must overcome
imposing barriers—merely getting into court is difficult enough, but actually
getting an agency's decision overturned under the arbitrary and capricious

standard depends on the court's level of deference to the agencies.^^^

The courts' tendency to defer to agencies' findings raises yet another
consideration relating specifically to an argument supporting the traditional

interpretation.^"*^ Admittedly, the public, who is not informed or who may be
misinformed on environmental matters, may do little to contribute to accurate
decisionmaking. Yet, as Professor Wendy Davis points out, often the agencies
in charge of deciding whether or not to prepare an EIS also lack environmental

knowledge.^"*' She recognizes, "[m]any ofthese FONSI determinations are made
by lead agencies without environmental expertise . . . ."^"^^ Davis also asserts,

"Federal agencies, which lack environmental expertise, and whose mission is not
environmental protection, should not have the power to determine whether their
proposed projects will harm the environment."^^^ Davis proposes to require EPA
approval for each FONSI determination.^"^ She argues three points: courts should
not be required to order agencies to prepare EISs because it wastes resources;

public suits are inefficient and often unsuccessftil at challenging FONSI
determinations; and most interestingly, "the results ofNEPA court challenges are
currently politically motivated."^^^ However, including public opposition under

the highly controversial factor could help to resolve Davis's concerns. There

would likely be less FONSI-related suits because of increased EISs, less waste of

judicial resources, and even more public opposition to politically-motivated

outcomes.

Finally, the increasing prominence of environmental justice and democracy

theories supports considering public opposition under the highly controversial

factor.^^^ Most federal actions result in EAs, not EISs, as noted above.^'*'' This
fact is troublesome because "[a]lthough NEPA regulations call on agencies to
involve the public in preparing EAs, public participation is only required by
NEPA after the EA is completed, through the notice and comment provisions for

239. See Smith, supra note 24, at 652 (noting that under the additional Lujan approach, NEPA
plaintiffs struggle to tie standing to the risk of environmental injury because they are not suing to

enforce substantiveNEPA requirements; indeed, NEPA contains no substantive requirements); see
also Nelson, supra note 232, at 198-99.

240. See supra text accompanying notes 187-96.

241

.

Davis, supra note 49, at 47.

242. Mat 48.
243. Mat 35.
244. Id. at 72.

245. Mat 43.
246. Environmental justice theory acknowledges that "exposure to environmental hazards is

related to race and income levels." Outka, supra note 14, at 602.

247

.

See supra text accompanying notes 2 1 9-23

.



20 1 0] PUBLIC OPPOSITION UNDER NEP

A

1 347

an EIS."^"^^ As a result, if the highly controversial factor ignores public
opposition and no EIS is prepared, then the opposing public loses its

opportunities to access more information or participate in any further
decisionmaking .

^"^^

The preparation of EISs advances environmental justice by facilitating

fairness in the decision-making process and highlighting discriminatory results.^^^

Professor Alice Kaswan asserts that NEPA, specifically through its EIS
requirement, provides "opportunities for increased information and participation

that . . . could facilitate a community's ability to understand and critique an

agency's decisionmaking process."^^' In particular, the EIS may reveal
information concerning the project's inappropriate location or underlying

unfairness and thereby provide the community with reason to question the

agency's motives behind its decision.^^^ Kaswan articulates related
environmental justice concerns, "[t]he information developed throughout the

environmental review process may show that the purported rationale is simply a
pretext masking a discriminatory decision."^^^ As a result, the public may use
participation in the EIS process to raise broader political concerns and bring

attention to injustices.
^^"^ A decision to issue a FONSI, however, limits the

public's access to information and participation, and therefore concerns of

broader political injustice must be raised through litigation. Factoring public

opposition into the EIS determination will likely produce two positive outcomes.

First, the likelihood of increased numbers ofEISs will result in more information

being disseminated to the public and additional public participation. Second, at

the very least, the public will gain some satisfaction in knowing that its

opposition played a role in determining whether the project would significantly

affect the human environment.
Moreover, both the agencies and the public must initiate changes in order to

248. Outka, supra note 14, at 608. Some courts however have responded to this disparity by

offering rules regulating the level ofpublic participation required in the EA process. Consider this
adopted rule: "An agency, when preparing an EA, must provide the public with sufficient

environmental information, considered in the totality of circumstances, to permit members ofthe

public to weigh in with their views and thus inform the agency decision-making process." Bering

Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps ofEngr's, 524 F.3d 938, 953 (9th Cir.

2008).

249. "From an environmentaljustice perspective, this is troubling, because ifthe agency issues

a FONSI without public involvement in its EA process, no meaningful opportunity remains."
Outka, supra note 14, at 608.

250. Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws

and "Justice, " 47 Am. U. L. Rev. 221, 233, 289-97 (1997).

251. /J. at 289-90.

252. Id. at 291-94 ("[A] community may be able to use an EIS to show that the selection of

the proposed site does not make sense, whatever the purported rationale ofthe decisionmaker.").

253. Mat 293.
254. See id. (quoting Jonathan Poisner, A Civic Republican Perspective on the National

Environmental Policy Act's Processfor Citizen Participation, 26 Envtl. L. 53, 87 (1996)).



1348 INDIANA LAW REVIEW [Vol. 43:1319

participate most effectively in EIS determination or preparation."^^ Professor

John S. Applegate recognizes that too often notice-and-comment procedures, like

those employed in preparing EISs, result in "decide, announce, and defend. That

is, the agency makes its decision internally, announces it to the public only
nominally as a proposal, and then defends its proposal against criticism rather

than seriously reexamining it in light of comments."^^^ Applegate, however,

proposes changes to enhance public participation.^^^ First, he suggests that

procedures should strive to include those people who are limited in their ability
to participate, like minorities.^^^ Next, the procedures must not only provide

information, but also teach the uninformed or ill-informed public.^^^ He warns,
'The proverbial playing field will never be truly level between persons with many
and those with few resources, but the latter can learn enough to participate

meaningfully."^^^ Third, the procedures should be transparent so that the public

can understand its role in both the participation and decision-making processes.
^^^

Finally, the participating public should influence the outcome.^^^ In sum, every

aspect of the public impacted by the agency action should have a role; have

awareness of its role and influence; possess information and tools to make use of
the information; and influence the outcome of the decision-making process.^^^

Conclusion

Too often federal agencies issue FONSIs and do not develop EISs in light of
substantial public opposition. This result is facilitated by the traditional
interpretation of the highly controversial factor. Through traditional

interpretation of this factor, courts have negated the major goal of NEPA by
depriving the public of both further information about proposed actions'

environmental effects and participation in the decision-making procedures of

those actions.

The irony of the factor's traditional interpretation was recently highlighted
in a case involving fisherman and drilling for oil under a revered Michigan river.

Despite their zealous opposition, the fisherman had little influence on the court's

ultimate decision that the project would have a significant impact on the quality

of the human environment. In other words, the affected people, who would

255. John S. Applegate, Beyond the Usual Suspects: The Use ofCitizens Advisory Boards in

Environmental Decisionmaking, 73 IND. L.J. 903, 952-53 (1998).

256. Id at 908.

257. Id at 952-53.

258. Id at 952.

259. Id

260. Id

261. Mat 953.
262. Id

263. Id. at 952-53. On the proper timing of participation, Applegate advises, "Participation

should begin early in the decisionmaking process, when outcomes are most flexible, and it should

permit actual dialogue between the decisionmaker and interested parties, and among interested

parties." Id.



20 1 0] PUBLIC OPPOSITION UNDER NEPA 1 349

presumably know better than anyone else the environmental effects or who at
least deserve to know those effects, had little input whether a project would
significantly impact their environment. The traditional interpretation therefore
results in illogical, ineffective outcomes that do little to advance the purposes of

NEPA. As a result, the courts should reconsider this failing interpretation and
adopt a broader view that encompasses public opposition.

Over a decade ago, William Murray Tabb offered a five-factor test for
incorporating public opposition into the highly controversial factor, but both

agencies and courts have basically ignored his proposal. In light of more recent
developments concerning public participation in NEPA and environmentaljustice
issues, perhaps now the courts will heed Tabb's advice and revise their
interpretation of the factor. Again, Tabb did not advance and this Note does not
propose that any opposition should trigger an EIS, and neither suggests that

public opposition should ultimately determine the fate of a project. Nonetheless,

the amount ofpublic opposition and concerns raised should at the veiy least have

some role in determining whether a project significantly affects the quality ofthe
human environment.

In the wake of substantial opposition to a proposed project, the public
deserves even more information and access to decision-making procedures—an
end that is best achieved in NEPA through the preparation of an EIS. Moreover,
that the public is not informed or may be misinformed on environmental matters
is all the more reason to provide information. Thomas Jefferson spoke of this
idea most eloquently:

I know no safe depositary of the ultimate powers of the society but the
people themselves; and if we think them not enlightened enough to
exercise their control with a wholesome discretion, the remedy is not to
take it from them, but to inform their discretion by education.^^"^

If an EA is nonetheless prepared and found adequate by the court, the opposing
public is left helpless. Certainly, in that situation, the Anglers would have faced
the choice ofcontinuing to fish in a once-revered, now oil-stained river or finding
someplace equally magnificent to fish—^provided any such sites still existed.

^

264. Jefferson on Politics and Government: The Safest Depository, http://etext.virginia.edu/

jefferson/quotations/jeff0350.htm (last visited Mar. 1, 2009).