Alert > Land Use and Development
Ninth Circuit Rules Narrow Project Purpose Precluded Sufficient Range of Alternatives Under NEPA
In National Parks & Conservation Association v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit overturned an Environmental Impact Statement for a landfill project, in part because the EIS considered an unreasonably narrow range of alternatives.
The Bureau of Land Management proposed to transfer some land to a developer, who wanted to use it to build a private landfill on a former mining site near Joshua Tree National Park. In preparing an EIS to fulfill its obligations under the National Environmental Policy Act, BLM stated that the purpose of the project was to develop a new landfill to meet the projected long-term demand for landfill capacity in Southern California; provide a long-term income source from the development of the former mining site; find an economically viable use for the existing by-products at the site (including aggregate and overburden); and provide long-term guidance for development and use of the site. The EIS considered several alternatives that involved building a landfill on the project site, but dismissed other alternatives — such as an off-site location for the landfill and putting the project site to a different use — because they did not satisfy the purpose and need for the project.
In a 2-1 decision, a panel of the Ninth Circuit ruled that the EIS considered an overly narrow set of alternatives. The panel found that the purpose and need statement was too narrow because it focused too heavily on the developer’s objectives for the project and did not adequately consider BLM’s goals, which in turn restricted the analysis of reasonable alternatives.
While the court explained that agencies generally have “considerable discretion” to define the purpose and need of a project, it emphasized the specific NEPA regulations that govern BLM, which expressly require the agency to focus on its own purpose and need for a project, “not an applicant’s or external proponent’s purpose and need.” Based on these regulations, the court distinguished NEPA reviews conducted by the U.S. Army Corps of Engineers when issuing permits for private activities. The court reasoned that the Corps’ NEPA regulations allow greater latitude, as compared to the regulations governing BLM, to rely on the private applicant’s objectives.
In a 50-page dissent, one of the judges disagreed with the majority decision and would have upheld BLM’s statement of purpose and need. According to the dissent, BLM appropriately considered the federal goals for the project, which included meeting the public’s growing need for increased landfill capacity and securing over 2,800 acres of new public lands from the private developer in order to protect the desert tortoise.
The decision highlights the complexities involved in drafting a purpose and need statement and conducting an alternatives analysis when evaluating a private project under NEPA, especially within the Ninth Circuit.
For more information on this alert, please contact:
Barbara J. Schussman, Partner
barbara.schussman@bingham.com, 415.393.2380
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