Memorandum Opinion and Order - US District Court - Northern ...

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Judicial Determination“The purpose of an EA is to ‘provide sufficient evidence and analysis for determiningwhether to prepare an [EIS].’” Sabine River Auth. v. U. S. Dep’t of Interior, 951 F.2d 669, 677(5th Cir. 1992) (quoting Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985)). See also40 C.F.R. § 1508.9(a)(1). An EA will come to one of two findings: “either that the projectrequires the preparation of an EIS to detail its environmental impact, or that the project will haveno significant impact (a ‘FONSI’) necessitating no further study of the environmentalconsequences which would ordinarily be explored through an EIS.” Sabine River Auth., 951F.2d at 677.When an agency concludes that preparation of an EIS is not necessary, the decision maybe challenged under the APA. Id. The legal standard relevant to a decision whether to prepare asupplemental EIS is “essentially the same as the standard for determining the need for anoriginal EIS,” i.e., arbitrary and capricious. Id. (citing Fritiofson, 772 F.2d at 1239 n.8). Todetermine whether the decision is arbitrary and capricious, the Fifth Circuit has consistently heldthat an “EIS is ‘not required for non major action or a major action which does not havesignificant impact on the environment.’” Id. (quoting Sierra Club v. Hassell, 636 F.2d 1095,1097 (5th Cir. Unit B 1981)) (emphasis in original).Here, the Court’s review of the AR’s supplemental summary of actions within IR-178between March 1995 and March 2001 indicates that no major actions occurred which wouldhave had a significant impact on the environment thereby necessitating the preparation of anEIS. Moreover, as Defendants correctly asserted, many of the actions actually reduced theimpacts of the RBTI on the underlying area. Defendants’ IR-178 supplementation included in58
the AR reveals that the alignment of IR-178 has remained substantially unchanged since itsformation in 1991, any operational changes were minor and did not involve any new airspace,and most other changes were merely administrative and in no way affected the environment.Plaintiffs have failed to point to any contrary evidence which would indicate thatDefendants’ decision not to supplement the 1985 and 1994 pre-RBTI EAs was arbitrary andcapricious. Plaintiffs’ suggestion that this Court revive the limitations period for the earlier EAs“would upset the balance struck by the limitations period between the reasonable needs ofindividual claimants and the public interest in finality.” Jersey Heights Neighborhood Ass’n v.Glendening, 174 F.3d 181, 189 (4th Cir. 1999).In any event, the Court also notes that IR-178 necessarily underwent a thorough andcomplete environmental analysis as part of the baseline for the RBTI FEIS. A large portion ofthe FEIS was devoted to describing the effects of IR-178’s ongoing operations–which do notsignificantly differ from the historic use of IR-178–on the underlying environment, the practicaleffect of which is to render moot Plaintiffs’ complaints regarding the “outdated” nature ofDefendants’ NEPA documentation relevant to IR-178. See APA § 706 (providing that “dueaccount shall be taken of the rule of prejudicial error”).Moreover, the prospective nature of NEPA “insure[s] that environmental information isavailable to public officials before decisions are made and before actions are taken.” 40 C.F.R.§ 1500.01(b). Further, it is well established that NEPA “does not create a remedial scheme forpast federal actions. It was enacted to require agencies to assess the future effects of futureactions.” Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779 (1983).59
Page 3 and 4:
Dale and Susan Toone; Tim and Rexan
Page 5:
would cause a potential disturbance
Page 8 and 9: Fourth:Violation of NEPA, Failure t
Page 10 and 11: Eleventh:Violation of NEPA, Commitm
Page 12 and 13: October 22, 2001. Plaintiffs’ Fir
Page 14 and 15: Defendants’ Cross-Motion for Summ
Page 16 and 17: not arbitrary and capricious.” Id
Page 18 and 19: 1060, 1064 (9th Cir. 1995). The EIS
Page 20 and 21: egan to expand the definition of th
Page 22 and 23: data and articulate a satisfactory
Page 24 and 25: impacts on livestock and poultry pr
Page 26 and 27: of the Lancer MOA would have a sign
Page 28 and 29: values beneath MTRs and/or MOAs. Ra
Page 30 and 31: specking.” Lathan v. Brinegar, 50
Page 32 and 33: this Court’s review of the AR rev
Page 34 and 35: elevant to a “significant” effe
Page 36 and 37: evidence does not invalidate the [a
Page 38 and 39: analysis, especially in light of De
Page 40 and 41: following which Defendants held ano
Page 42 and 43: of the RBTI. Therefore, to the exte
Page 44 and 45: 40 C.F.R. § 1508.20.D. Reducing or
Page 46 and 47: D. Untimely Participation of FAAPla
Page 48 and 49: and use of IR-178. Consequently, Pl
Page 50 and 51: considered the adequacy, practicabi
Page 52 and 53: evaluation of the benefits of the p
Page 54 and 55: However, when considered in conjunc
Page 56 and 57: Accordingly, this Court finds that
Page 60 and 61: Here, this Court finds that Defenda
Page 62: Further, after considering all the
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