The National Environmental Policy Act (NEPA) requires that federal agencies proposing a major action consider the environmental impacts of such an action. The courts have interpreted this law to be essentially a procedural requirement. The agency must conduct its environmental analysis according to the procedures prescribed by NEPA. If the analysis is conducted properly, a court will not substitute its judgment for the agency on whether the action should be taken. What these court decisions mean essentially is that an agency is only required to take a hard look at potential environmental impacts. That hard look takes place in the preparation of an environmental impact statement (EIS) which is subject to public scrutiny and comment. The agency is then free to decide to proceed with the action even if those impacts are severe.
The limited restrictions imposed by NEPA makes the conduct of an objective EIS process the sole protection for the environment.
The specific procedural requirements are that the agency consider:
This litigation begins with a focus on sections iii and v of that law. The requirement to consider irreversible and irretrievable commitments of resources before making a decision to proceed has three purposes.
First, the decision maker may decide, after examining the costs involved in a project, that the costs involved are prohibitive and, in the absence of an available alternative, choose not to pursue the proposal (the "no action" alternative).
Second, the decision maker may decide that the costs of the proposal make an available alternative preferable.
Third, prohibiting irreversible commitments prior to evaluating environmental impacts avoids building agency momentum to select an option before the environmental impacts of that option are known.
The history of the SURTASS LFA program makes a mockery of these legal requirements. When the Navy decided that there was a need for a new system for detecting silent submarines, the Navy did not engage in a NEPA process to examine alternatives and their potential environmental effect. Instead, the Navy simply conducted an internal review of alternatives and picked low frequency active sonar as the technology of choice.
The Navy then expended millions of dollars developing and testing the low frequency active sonar system without initiating an environmental impact statement. Only when the Natural Resources Defense Council caught the Navy on the verge of deploying the system and threatened to sue did the Navy agree to prepare an EIS.
Even then, the Navy did not stop expending resources in preparation for deployment of the system. To the contrary, the Navy continued pursuing previous commitments and initiated new contracts to prepare for deployment even after agreeing to prepare an EIS.
Today, the Navy is still expending large sums to prepare for SURTASS LFA deployment even though the EIS is not completed.
This litigation seeks to compel the Navy to comply with the NEPA requirement and stop any further pursuit of deployment at least until completing the EIS.
The litigation also goes one step further and asks the court to take continuing jurisdiction over the EIS process and prohibit any further expenditures in pursuit of deployment until such time as judicial review of the EIS is completed.
The basis for the court to exercise continuing jurisdiction is the bad faith nature of the Navy's EIS process. The continuing irreversible and irretrievable commitments of resources are only one element of this bad faith. Other elements include the deliberate omission from the draft EIS (DEIS) of any discussion about the adverse effects from testing off Hawai`i, such as the harm to a swimmer from a broadcast and the disappearance of whales from the testing area; deliberately misrepresenting the scientific evidence discussed in the draft EIS; and refusing to conduct follow up research into the longer term effects of the testing off Hawai`i. For more detail on these allegations, you can review the Complaint and the Evidence.
The suit also seeks an injunction preventing the National Marine Fisheries Service (NMFS) from processing a Navy application for a five year deployment permit. This permit would permit the Navy to harm marine life as an "incidental" effect of using SURTASS LFA.
The arguments for enjoining the NMFS from processing the Navy's application for a letter of authorization to take marine species, including endangered species are:
(1) The Navy is currently in violation of NEPA based on the illegal commitments of resources to deployment discussed above.
(2) The Navy is also violating a similar provision in The Endangered Species Act (ESA) forbidding irretrievable expenditure of resources. If an action may have adverse effects on endangered or threatened species, the agency proposing the action is prohibited from making irreversible or irretrievable commitments of resources in pursuit of the proposal until the agency consults with NMFS and NMFS grants permits for the such adverse effects. 16 U.S.C. Section 1536(d).
NMFS cannot grant such permits until the EIS is complete. The effect of this law is, therefore, the same as NEPA - no irreversible commitments at least until the EIS is complete.
Because the Navy had made and continued to make irretrievable commitments of resources in pursuit of deployment, the Navy was in violation of NEPA and ESA in August 1999 when the Navy applied for a permit under the Marine Mammal Protection Act to deploy SURTASS LFA. The plaintiffs will argue that NMFS should not have accepted an application until such time as the Navy ceased violating NEPA and ESA.
(3) By accepting and processing the application, NMFS lends legitimacy to the Navy's serious violations of NEPA and ESA. Processing the application amounts to collusion with the Navy in illegal activity.
(4) Staff members of the NMFS Office of Protected Species appear as "Preparers" of the DEIS and one of those staff members is now the lead person within NMFS processing the application based on the DEIS. The conflict of interest is obvious. There is a letter in the DEIS Appendix from the head of the NMFS Office of Protected Species stating that NMFS could not sign off on the DEIS precisely because the Navy would be coming to them for an exercise of NMFS's regulatory function based on the EIS. The staff in the Office of Protected Species clearly violated that policy.
This overview of the legal issues is offered as an aid to understanding the litigation. If you have questions or other responses, please communicate them to light@ilhawaii.net.
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