Center for Food Safety v. Salazar

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR FOOD SAFETY, et al.,
Plaintiffs,
v. Civil Action No. 11-1934 (JEB)
KEN SALAZAR, et al.,
Defendants.
MEMORANDUM OPINION
The National Wildlife Refuge System includes more than 150 million acres of public
lands and waters dedicated to habitat and wildlife conservation. The Refuge System is managed
by the United States Fish and Wildlife Service and comprises various geographic regions. In
April 2011, FWS released an Environmental Assessment evaluating the impacts of allowing
genetically modified corn and soybeans to be farmed on refuge land in the Midwest Region
(Region 3). The Assessment considered the potential environmental effects of four different
alternatives for farming on refuge land. Following a period of public comment, the Agency
ultimately selected a fifth alternative, which allows genetically modified corn and soybeans to be
farmed on refuge land for the limited purpose of habitat restoration.
Three national nonprofit organizations – the Center for Food Safety, Beyond Pesticides,
and Public Employees for Environmental Responsibility – and a research, education, and farm
policy group, the Cornucopia Institute, filed this suit challenging the Agency’s decision
permitting these crops on refuge lands. Plaintiffs assert two causes of action. First, they claim
that given the significant environmental consequences of the decision, Defendants violated the
National Environmental Policy Act by failing to prepare a full Environmental Impact Statement.
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Second, they argue that Defendants violated the National Wildlife Refuge System Administrative
Act of 1966 and the National Wildlife Refuge Improvement Act of 1997 by failing to make a
Compatibility Determination for each refuge and by finding that cultivation of genetically
modified crops is a compatible use for some refuges. All parties have now moved for summary
judgment. Because the Court concludes that the Agency’s actions were not arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law, the Court will grant the
Defendants’ Motion and deny Plaintiffs’.
I. Background
A. National Wildlife Refuge System
The Refuge System contains 553 national wildlife refuges and 38 wetland management
districts throughout the country. See FWS005400. “The mission of the System is to administer
a national network of lands and waters for the conservation, management, and where appropriate,
restoration of the fish, wildlife, and plant resources and their habitats within the United States for
the benefit of present and future generations of Americans.” See National Wildlife Refuge
System Improvement Act of 1997 § 4, 16 U.S.C. § 668dd(a)(2). “Each refuge shall be managed
to fulfill the mission of the System, as well as the specific purposes for which that refuge was
established.” § 668dd(a)(3)(A). The Midwest Region (Region 3) includes 54 national wildlife
refuges and 12 wetland management districts in Illinois, Iowa, Indiana, Michigan, Minnesota,
Missouri, Ohio, and Wisconsin. See FWS005400.
Farming has historically been an “important tool used to manage refuge lands.” See
FWS000323. It has been used for a number of purposes, including habitat restoration, habitat
management, provision of supplemental food for wildlife, and attracting wildlife for viewing and
photography. See FWS005405. Farming’s role in habitat restoration is “to maximize the
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destruction of seeds and unwanted plant parts from invasive or unwanted plant species and to
create less competition and purer stands of native species.” Id. It is used for habitat
management purposes to “remove invasive or even native plants and woody vegetation from
wetlands,” and it provides an additional food source for wildlife, given the decreasing
availability of native foods over the past century. Id. Finally, to a lesser extent than the other
three uses, row crops have “been a useful tool for attracting wildlife to areas where people can
view and photograph them.” FWS005406. Farming on refuge land is typically done pursuant to
cooperative farming arrangements, whereby local farmers plant on designated areas in a refuge
and harvest a share of the crop. See FWS000323, FWS005404. Refuge and District Managers
set forth the terms and conditions of the farming that will be permitted on the land, including
how long farming will be allowed on a specific tract and which crops will be grown and how the
crops will be rotated. See FWS005416. Managers are also responsible for enforcing the terms
set forth in these cooperative agreements, as well as in any other agreements governing the terms
of the farming on refuge lands, such as Pesticide Use Proposals. See FWS005491.
B. Factual and Procedural Background
In 2010, FWS identified a need to develop a “consistent regional position for farming” in
Region 3. FWS000292. Specifically, the Service believed it should prepare National
Environmental Policy Act documents in light of “concern[s] about the potential for impacts on
refuges and on neighboring lands” from the advance of genetically modified crops. See
FWS000294. The Service further noted that “several eastern refuges have [recently] been sued
over the use of genetically modified crops and the NEPA process.” Id. Such crops include
glyphosate-tolerant corn and soybeans, which have been genetically modified through insertion
of a gene that allows the plant to tolerate applications of the herbicide glyphosate. See
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FWS000321. These crops “allow[] for the effective control and elimination of noxious weeds
and other undesirable plants prior to the area being reseeded or allowed to revegetate to more
desirable species.” Id. The use of genetically modified, herbicide-tolerant crops has increased
substantially in recent years, constituting 92 percent of soybean acres and 80 percent of corn
acres in 2008. See FWS005404 (citing Brookes 2010).
To address concerns about the effect of genetically modified (GM) – also called
genetically engineered (GE) – crops on the environment, the Agency decided that it would
develop a programmatic Environmental Assessment (EA) for Region 3. See FWS000292; see
also FWS000299 (“R3 to complete programmatic EA.”). The Agency formulated a process to
develop the EA, which included public scoping of issues, completion of a draft EA, a public-
comment period, and ultimately, finalization of the EA. See FWS000302, FWS000320.
Consistent with this approach, a draft of the EA was made available for public comment on
January 10, 2011, with comments due by February 14. See FWS003400-01.
The Draft EA evaluated four alternatives “based on a review of authorities, policies, and
regulations as well as review of the comments received during the initial public comment period
held to determine what issues should be addressed in this EA.” See FWS000757. The
alternatives evaluated in the Draft EA were:
• Alternative A: Continue Farming for Multiple Objectives, GMGT Corn and
Soybeans Allowed (No Action) (Preferred Alternative), see FWS000760-61;
• Alternative B: Farming for Habitat Restoration Objectives Only, GMGT Corn and
Soybeans Allowed, see FWS000761-62;
• Alternative C: Farming for Multiple Objectives, No GMGT Corn and Soybeans, see
FWS000762; and
• Alternative D: Limited Row Crop Farming, No GMGT Corn and Soybeans.
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See FWS000762-63. The EA “considered” but did not “develop[]” two additional alternatives:
no farming and unmanaged succession, which occurs when land is allowed to grow back with no
human land management. See FWS000757. The Agency did not pursue either of these
alternatives because it determined that neither would “fulfill the establishing purposes of refuges
and wetland management districts.” See id. Specifically, the Agency stated that it lacked the
necessary resources to restore lands under the “no farming” alternative, and “unmanaged
succession” would take more time and would likely result in “vegetation dominated by
undesirable, non-native plants.” Id.
The Agency sought input from the public on the Draft EA, with outreach efforts that
included
sending news releases to more than 790 media outlets, posting
information at refuges and wetland management districts
throughout the Midwest Region, providing information to local
farming interests, and providing information to 107 congressional
staff within the eight-state Region. In addition, the Midwest
Region posted information on a website[] throughout the planning
process. . . . More than 30 written comments and e-mails were
received from farmers participating in the Refuge System farming
program, neighboring landowners, agricultural organizations, non-
governmental organizations and biochemical interest for the
Midwest Region scoping.
FWS005406. The comments received by the Agency fall into three general categories: wildlife
issues, habitat issues, and socioeconomic issues. See FWS005407; see also EA Appendix F
(Responses to Comments) at FWS005489-92.
Following completion of the public-review period,
comments were evaluated and as a result of this process a fifth
alternative was developed and ultimately selected. Alternative E:
Continue Farming for Multiple Objectives, GMGT Corn and
Soybeans Allowed for Habitat Restoration Only is the selected
alternative. This alternative promotes long-term restoration of
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native habitats, such as, prairie, wetlands, bottomland hardwoods,
and other critical habitats.
FWS005392 (emphasis added). “Under the selected alternative, farming could continue to be
used as a management tool to achieve multiple objectives, such as, habitat management,
supplemental food for wildlife, and attracting wildlife for viewing and photography, but the use
of GMGT crops would not be allowed to achieve these objectives.” Id.
The Agency released the Final EA on April 1, 2011, with a Finding of No Significant
Impact (FONSI), concluding that the proposed management action “is not a major Federal action
which would significantly affect the quality of the human environment, within meaning of
Section 102(2)(c) of the National Environmental Policy Act of 1969.” Id. Because the Agency
determined that there would be no significant environmental impact, it was not required to
complete a full Environmental Impact Statement (EIS).
The Final EA contains a chapter discussing the potential effects common to all of the
proposed alternatives, including the effects on endangered and threatened species and on organic
soybeans, ultimately determining that no negative impacts are anticipated as to either issue. See
FWS005427-29. The EA further analyzes wildlife issues, habitat issues, and socioeconomic
issues specific to each alternative. See FWS005429-5462. Potential environmental impacts
identified and discussed in the EA include:
• Development of herbicide (glyphosate) resistance in weeds due to widespread use
of GMGT corn and soybeans, see FWS005430, FWS005434;
• Potential risks “to aquatic species when some commercial formulations of
glyphosate are applied too closely to water,” including negative impacts on
amphibians (citing Dinehart et al. 2010) and aquatic communities in general
(citing Relyea 2005, Vera et al. 2010), see FWS005431; and
• Negative effects on organic farmers due to inadvertent gene flow from GM to
organic crops.
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See FWS005435. For each of the identified environmental impacts, the EA discusses practices
or policies in place to minimize their risk, such as
• Following herbicide label instructions to avoid application of the herbicide
“around water, near sensitive habitats, and near threatened and endangered
species,” FWS005431;
• Using less toxic formulations of glyphosate, see id.;
• Applying pesticides pursuant to the conditions set forth in the cooperative farming
agreements and in Pesticide Use Proposals, see FWS005431-32;
• Employing Integrated Pest Management techniques to “minimize the likelihood
of herbicide resistance by regularly changing the technique used to control weeds:
rotating type of herbicide used, rotating crop planted, and using mechanical
methods,” see FWS005434; and
• Providing buffer zones of 660 feet to curb inadvertent gene flow from GM to
organic crops.
See FWS005435-36.
The selected alternative – Alternative E, “Continue Farming for Multiple Objectives,
GMGT Corn and Soybeans Allowed for Habitat Restoration Only” – was developed to address
the concerns raised with alternatives discussed in the Draft EA. See FWS00392. Under this
alternative, the use of GM corn and soybeans on refuge lands in the region would continue only
for the purposes of habitat restoration and would be limited to five years for any individual tract.
See FWS005418. Farming could continue to be used for other objectives, such as habitat
management, supplemental food for wildlife, and attracting wildlife for viewing and
photography; however, such farming could only be done with non-GM crops. See id. The
selected option thus allows for a more limited use of GM crops than Alternative A (the original
“Preferred Alternative”), as each tract is limited to five years of GM crops, and GM crops are
permitted for only one objective – habitat restoration – rather than for multiple objectives. See
FWS005460-61, FWS005418.
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On November 2, 2011, Plaintiffs filed this suit on behalf of themselves and their
members alleging that Defendants’ region-wide EA and FONSI violated NEPA (Count I) and
that their failure to perform Compatibility Determinations and their decision that cultivating
genetically engineered crops on refuges is a “compatible use” violated the National Wildlife
Refuge System Administration Act and the National Wildlife Refuge Improvement Act (Count
II). They named as Defendants Ken Salazar, Secretary of the United States Department of the
Interior; Daniel Ashe, Director of FWS; and FWS itself. All parties have now filed Motions for
Summary Judgment. The Court also permitted the American Farm Bureau Federation, Ducks
Unlimited, Inc., Delta Wildlife, and the Biotechnology Industry Organization to submit joint
briefing as amici curiae.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S.
at 248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby,
Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895.
In a case involving review of a final agency action under the APA, however, the standard
set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the
administrative record. See Sierra Club v. Mainella, 459 F.Supp.2d 76, 89-90 (D.D.C. 2006)
(citing Nat’l Wilderness Inst. v. United States Army Corps of Eng’rs, 2005 WL 691775, at *7
8
(D.D.C. 2005); Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C. 1995), amended on
other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of the district court is to
determine whether or not as a matter of law the evidence in the administrative record permitted
the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus
serves as the mechanism for deciding, as a matter of law, whether the agency action is supported
by the administrative record and otherwise consistent with the APA standard of review. See
Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in Bloch v. Powell,
227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003).
The Administrative Procedure Act “sets forth the full extent of judicial authority to
review executive agency action for procedural correctness.” FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A) (2006). This is a “narrow” standard of review as
courts defer to the agency’s expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to “examine the relevant
data and articulate a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Id. (internal quotation omitted). The reviewing
court “is not to substitute its judgment for that of the agency.” Id. Nevertheless, a decision that
is not fully explained may be upheld “if the agency’s path may reasonably be discerned.”
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
III. Analysis
While Plaintiffs contend that they are entitled to summary judgment, Defendants
challenge both the Court’s subject-matter jurisdiction here and the merits of Plaintiffs’ claims.
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The Court’s first task is thus to ensure that it has jurisdiction to decide the case. See, e.g.,
Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) (“[E]very federal court has a
‘special obligation to satisfy itself’ of its own jurisdiction before addressing the merits of any
dispute.”) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).
Ultimately concluding that Plaintiffs do have standing to pursue their claims, the Court will then
reach the substance of Plaintiffs’ allegations. In the end, it determines that FWS acted neither
arbitrarily and capriciously nor contrary to its governing statute when it allowed genetically
modified corn and soybeans to be grown on refuges in the Midwest.
A. Standing
Defendants seek to dismiss the Complaint on the ground that Plaintiffs lack standing,
leaving the Court without subject-matter jurisdiction over their claims. Article III of the
Constitution limits the power of the federal judiciary to the resolution of “Cases” and
“Controversies.” U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750 (1984)
(discussing case-or-controversy requirement). “This limitation is no mere formality: it ‘defines
with respect to the Judicial Branch the idea of separation of powers on which the Federal
Government is founded.’” Dominguez, 666 F.3d at 1361 (quoting Allen, 468 U.S. at 750).
Because “standing is an essential and unchanging part of the case-or-controversy requirement of
Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), finding that a plaintiff has
standing is a necessary “predicate to any exercise of [the Court’s] jurisdiction.” Fla. Audubon
Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).
The doctrine of standing “requires federal courts to satisfy themselves that ‘the plaintiff
has alleged such a personal stake in the outcome of the controversy as to warrant his invocation
of federal-court jurisdiction.’” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citing
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Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). At its “irreducible constitutional minimum,” the
doctrine requires a plaintiff to prove three elements: (1) a concrete and particularized injury-in-
fact, (2) a causal relationship between the injury and defendants’ challenged conduct, and (3) a
likelihood that the injury suffered will be redressed by a favorable decision. See Lujan, 504 U.S.
at 560–61. Organizations suing on their own behalf, like individuals, must satisfy these three
requirements. See Nat’l Taxpayers Union, Inc. v. U.S., 68 F.3d 1428, 1433 (D.C. Cir. 1995)
(citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)).
Defendants contend that Plaintiffs have failed to show “any of the three bedrock
requirements of Article III standing: injury in fact, traceability, and redressability.” See Defs.’
Mot. at 7-8. Specifically, Defendants point to Plaintiffs’ failure to “submit[] a single standing
declaration that purports to show standing, instead of relying on mere allegations and pure
speculation,” and their “fail[ure] to establish that even a single one of their members has ever
even visited any of the refuges, let alone has imminent plans to visit one in the future that might
be affected by the conduct that Plaintiffs challenge.” See id. at 8. Plaintiffs dispute this, arguing
that they “have standing, based on their organizations’ core missions and their members’ refuge
activities.” See Pls.’ Reply at 1. They attach to their Reply eight declarations – from members
and organization leadership – in support of the claimed injury. See id., Exh. A (Declaration of
Donna Davis); Exh. B (Declaration of Will Fantle); Exh. C (Declaration of Mimi Jennings); Exh.
D (Declaration of Andrew Kimbrell); Exh. E (Declaration of Jeff Ruch); Exh. F. (Declaration of
Jay Feldman); Exh. G (Declaration of Blake Anderson); Exh. H (Declaration of David Wagner).
When an organization is suing on behalf of its members, it must establish
“representational” or “associational” standing. To do so, it needs to show that “its members
would otherwise have standing to sue in their own right, the interests at stake are germane to the
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organization’s purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Adver. Comm’n,
432 U.S. 333, 343 (1977)); see also American Library Ass’n v. FCC., 401 F.3d 489, 492 (D.C.
Cir. 2005). To satisfy the first prong, it is “not enough to aver that unidentified members have
been injured.” Chamber of Comm. v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011). Rather, the
organization must name at least one member who has suffered the requisite harm. See Summers,
555 U.S. at 498-99.
Plaintiffs claim that this test for associational standing is satisfied here, where
(1) Plaintiffs’ members have standing, (2) preventing the
proliferation of transgenic herbicide promoting crops on national
wildlife members is germane to all Plaintiff organizations’
purposes, (3) there is no need for Plaintiffs’ members to participate
in the lawsuit; and (4) Plaintiffs’ injuries fall within the zone of
interests of NEPA and the Refuge Act.
Pls.’ Reply at 2.
A look at these four points convinces the Court that Plaintiffs are correct. First, Plaintiffs
provide a substantial discussion of the “aesthetic, recreational, and environmental interests” of
their members and how such interests will be impaired by the Agency’s policy of allowing
transgenic crops on Midwest refuges, thus demonstrating injury and causation. See id. at 2-5.
For instance, they note that
Plaintiffs’ members utilize the Midwest wildlife refuges for an
array of recreational activities, including wildlife viewing,
studying native plants, bird watching, hiking, fishing, and
participating in educational events held at the refuges. Davis Decl.
¶ 5; Jennings Decl. ¶ 5; Wagner Decl. ¶ 6; Anderson Decl. ¶ 5.
Plaintiffs’ members reside near Midwest wildlife refuges, are avid
visitors to them, and are passionate about the recreational
opportunities these refuges have to offer. Davis Decl. ¶ 5;
Jennings Decl. ¶¶ 5-6; Wagner Decl. ¶ 5; Anderson Decl. ¶ 5.
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Id. at 3. Further, they claim that this injury is redressable, as a “decision in Plaintiffs’ favor
vacating the agency’s approval action will remedy Plaintiffs’ injuries, because the planting [of]
transgenic crops on Midwest refuges would no longer be allowed.” Id. at 5.
Second, Plaintiffs demonstrate that the interests at stake are germane to the purposes of
each organization. See, e.g., id. at 5 (“[Beyond Pesticide’s] mission is to protect public health
and the environment by encouraging a transition away from pesticides, including herbicides used
with transgenic crops.”; “Center for Food Safety was established to protect the environment from
harmful food production technologies . . . . CFS and its members’ interest in protecting the
environment and human health from harmful agricultural practices are directly implicated in this
case.”) (internal citations omitted).
Third, there is no need for individual members of the Plaintiff organizations to participate
in the suit since the organizations can represent those members’ interests and no individual relief
is sought. Fourth and finally, Plaintiffs contend that prudential standing is satisfied here, as
“recreational and aesthetic interests ‘are plainly within the zone of interests protected by NEPA .
. . . ’” Id. at 6 (citing Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir.
1996)).
In their Reply, Defendants do not challenge any of these assertions; instead, they
maintain only that Plaintiffs’ declarations “fail[] to establish standing for a majority of the
refuges at issue in this case, because Plaintiffs fail to show that they suffer injury with respect to
each individual refuge,” as the declarations “only allege specific connections to eleven refuges or
management districts.” See Defs.’ Reply at 2. Plaintiffs – in their response to a similar
argument made by amici – counter that such a showing is not necessary and that the declarations
establishing that “Plaintiffs’ members utilize and visit many of the Midwest wildlife refuges that
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are currently growing or can grow herbicide-resistant crops” are sufficient to establish standing.
See Pls.’ Response to Amicus Br. at 3. The Court agrees.
Plaintiffs’ declarations allege injury with respect to affected refuges within Region 3 and
are sufficient to ensure that “‘the legal questions presented to the court will be resolved, not in
the rarified atmosphere of a debating society, but in a concrete factual context conducive to a
realistic appreciation of the consequences of judicial action.’” Wyoming Outdoor Council v.
U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999) (quoting Valley Forge Christian Coll. v. Am.
United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)). As such, it is not
necessary that Plaintiffs establish standing with respect to each individual refuge. See, e.g.,
Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 985 (9th Cir. 1994) (rejecting argument that
plaintiffs could not establish standing for state-wide environmental claim without establishing
injury in fact with respect to “‘every water body that would be affected by the state-wide []
program’” and finding plaintiffs satisfied standing requirements to pursue state-wide claim
where plaintiffs established they were adversely affected by inadequate water quality of a
“representative number of waters” throughout state).
Finding that Plaintiffs have established standing, the Court may now evaluate the merits
of their claims.
B. Count I: NEPA Violation
1. Background
NEPA has twin aims: it “places upon an agency the obligation to consider every
significant aspect of the environmental impact of a proposed action,” Baltimore Gas & Elec. Co.
v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97(1983), and “it ensures that the agency will
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inform the public that it has indeed considered environmental concerns in its decisionmaking
process.” Id.NEPA’s requirements are “procedural,” requiring “agencies to imbue their
decisionmaking, through the use of certain procedures, with our country’s commitment to
environmental salubrity.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94
(D.C. Cir. 1991). Significantly, “NEPA does not mandate particular consequences,” id. at 194,
and courts are discouraged from substituting their own policy judgments for that of the agency.
See N. Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980); see also Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 378 (1989) (refusing to second-guess an agency’s decision –
even if it finds contrary views more persuasive – so long as agency followed NEPA’s
procedures). “NEPA merely prohibits uninformed – rather than unwise – agency action.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). Agency actions with
adverse environmental effects can nonetheless be NEPA-compliant where “the agency has
considered those effects and determined that competing policy values outweigh those costs.”
Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir. 2009) (internal
citations omitted).
Under NEPA, an agency must prepare an Environmental Impact Statement for any
proposed major federal action “significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C) (2006). In an EIS, the agency is required to “take a ‘hard look’ at the
environmental consequences before taking a major action.” Baltimore Gas, 462 U.S. at 97(citations omitted). An EIS must detail the environmental impact of the proposed action, any
adverse effects, alternatives to the proposed action, the relationship between man’s short-term
15
uses and the long-term effects, and any irreversible commitments of resources. Id. at 89 n.1; see
also Fund for Animals v. Hall, 777 F. Supp. 2d 92, 96 (D.D.C. 2011).
To determine whether an agency must prepare an EIS, it will first prepare an
Environmental Assessment. See 40 C.F.R. § 1501.4(b) (2012). An EA is a “concise public
document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no significant impact.” Id. §
1508.9(a). The EA must discuss the need for the proposal, the alternatives, and the
environmental impacts of the proposed action and the alternatives. Id. § 1508.9(b). If, after
preparing an EA, the agency determines that a full EIS is not necessary, it must prepare a
Finding of No Significant Impact (FONSI) setting forth the reasons why the action will not have
a significant impact on the environment. Id. §§ 1501.4(e), 1508.13; see Flaherty v. Bryson,
850 F. Supp. 2d 38, 45 (D.D.C. 2012); In re Polar Bear Endangered Species Act Listing and §
4(d) Rule Litig., 818 F. Supp. 2d 214, 222 (D.D.C. 2011). This is what occurred here.
2. Legal Adequacy of the EA
In reviewing an agency’s decision not to issue an EIS, the Court’s role is a “limited” one,
“designed primarily to ensure ‘that no arguably significant consequences have been ignored.’”
TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006)
(quoting Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir.
1988)); Town of Cave Creek, Ariz. v. FAA, 325 F.3d 320, 327 (D.C. Cir. 2003). An agency’s
decision to issue a FONSI – and therefore not to prepare an EIS – will only be overturned “if the
decision was arbitrary, capricious, or an abuse of discretion.” Sierra Club v. Peterson, 717 F.2d
1409, 1413 (D.C. Cir. 1983).
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When examining the adequacy of the FONSI (and the EA upon which it was based),
courts consider four factors. Courts must determine whether the agency:
(1) has accurately identified the relevant environmental concern,
(2) has taken a hard look at the problem in preparing its [FONSI or
Environmental Assessment], (3) is able to make a convincing case
for its finding of no significant impact, and (4) has shown that even
if there is an impact of true significance, an EIS is unnecessary
because changes or safeguards in the project sufficiently reduce the
impact to a minimum.
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011) (quoting TOMAC, 433 F.3d
at 861) (internal quotation marks omitted). Pursuant to this framework, Plaintiffs contend that
the instant EA is “fatally flawed.” See Pls.’ Mot. at 12-13. First, Plaintiffs launch a combined
challenge under the second and third factors, arguing that the EA failed to take a “hard look” at
the impact of GE crops and “provid[ed] only a cursory review” of their significant impacts. See
id. at 14. Second, they challenge the Agency on the final factor, claiming that Defendants did
not show that the mitigation measures relied on in the EA would reduce the significant
environmental impacts, thus obviating the need for an EIS. Id. at 28; see also Pls.’ Reply at 6-7,
9-14. The Court will consider each in turn.
a. “Hard Look” & Convincing Case for FONSI
As discussed above, under NEPA, Defendants’ EA must “take[] a hard look at the
problem.” Van Antwerp, 661 F.3d at 1154. “Although the contours of the ‘hard look’ doctrine
may be imprecise,” a court must at a minimum “‘ensure that the agency has adequately
considered and disclosed the environmental impact of its actions and that its decision is not
arbitrary and capricious.’” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)
(quoting Baltimore Gas, 462 U.S. at 97-98). A “hard look” includes “considering all foreseeable
direct and indirect impacts. . . . [It] should involve a discussion of adverse impacts that does not
17
improperly minimize negative side effects.” N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969,
975 (9th Cir. 2006) (internal quotation marks and citation omitted). As the Fourth Circuit
recently advised:
In conducting this review, we “may not ‘flyspeck’ [the] agency’s
environmental analysis, looking for any deficiency, no matter how
minor.” Instead, we “must take a holistic view of what the agency
has done to assess environmental impact” and “examine all of the
various components of [the] agency’s environmental analysis . . .
to determine, on the whole, whether the agency has conducted the
required ‘hard look.’”
Webster v. U.S. Dept. of Agric., 685 F.3d 411, 421-22 (4th Cir. 2012) (internal citations
omitted).
Plaintiffs mount three distinct challenges to the adequacy of the EA’s hard look and its
FONSI. First, they claim that the Agency failed to adequately evaluate three adverse impacts
associated with allowing GE crops on refuge land. Second, Plaintiffs argue that the Agency’s
analysis of alternatives was inadequate. And finally, they contend that the EA did not adequately
address site-specific impacts.
i. Three Adverse Impacts
Plaintiffs argue that Defendants’ analysis was cursory and failed to consider a number of
impacts, including: 1) the increased use of herbicides; 2) the risk of “super weeds”; and 3) the
risk of transgenic contamination. See Pls.’ Mot. at 22-31. Defendants respond that they took a
“hard look” at each of these three impacts and that Plaintiffs merely disagree with the agency’s
ultimate conclusions. See Defs.’ Mot. at 9-10. Because the Court’s analysis for each of these
impacts is similar, it will first set forth both sides’ arguments on all three points and then provide
its reasoning.
18
Plaintiffs first claim that the EA failed to evaluate the significant adverse impacts on
threatened and endangered species from the increased use of herbicides, which results from a rise
in transgenic crops. See Pls.’ Mot. at 22-23. In particular, they allege that Defendants’
conclusion that there would be no significant environmental impact from increased pesticide use
ignored substantial record evidence of:
• Water contamination, see FWS005430-31;
• Negative impacts on aquatic communities, see FWS004294, FWS005380,
FWS005431, FWS004292; and
• Toxic effects of pesticides on amphibians, see FWS004294, FWS000973.
See id. at 24-26.
Defendants counter that the “EA considered herbicide use . . . but concluded that the risks
and impacts were low.” Defs.’ Mot. at 11 (citing FWS005455). They note that the herbicide
used with these GE crops is “‘relatively environmentally benign’ when compared to other
herbicides, studies demonstrate that ‘it does not leach appreciably, has low potential for runoff,’
is nontoxic to honeybees, ‘practically nontoxic to fish,’ and ‘has no significant potential to
accumulate in animal tissue.’” Id. (citing Duke, S.O., and S.B. Powles, 2008, found at
FWS005455). Defendants also contend that the agency decision challenged here “does not
necessarily result in increased herbicide use.” Defs.’ Reply at 5. This is so, they argue, because
the application of herbicides on refuges is only authorized pursuant to a Pesticide Use Proposal, a
process that “utilizes its own refuge-specific environmental review, including evaluating the
impact on endangered species.” Id. 1 Additionally, because pesticides must be “applied
following label instructions,” which restricts use “near water, sensitive habitats, and threatened
1
Plaintiffs’ Complaint does not challenge Defendants’ Pesticide Use Proposals. As Defendants note, to the
extent that Plaintiffs seek to challenge agency action regarding pesticide use, such challenge should be directed at
the specific agency action (the PUP process). See Defs.’ Mot. at 17-18.
19
and endangered species,” the agency concluded that “following label instructions when using
herbicides will reduce the risks to wildlife and therefore, that the impacts are not significant.”
Id. at 6 (citing FWS005455-56). Finally, Defendants point to scientific evidence on the record
illustrating that the use of herbicides would not have adverse effects on amphibians. See id. at 7
(citing FWS005366 (citing Langeland 2006) and FWS004159-60).
Next, Plaintiffs challenge the EA’s failure to adequately assess the “super weed” impact.
See Pls.’ Mot. at 26-29. As with the herbicide risks discussed above, Plaintiffs believe that the
EA recognized this impact, “but failed to accord proper significance to it in the EA.” Id. at 26.
The record identifies the possibility of glyphosate resistance in a number of places, including
• A 2008 study regarding the development of glyphosate-resistant weeds (citing
Duke and Powles 2008), see FWS005434;
• An acknowledgement of weed resistance as a foreseeable problem by a refuge
manager, see FWS000610;
• References to academic journal articles warning of glyphosate resistance, see
FWS003996 and FWS003800;
• Observed resistance of horseweed in the region, see FWS005367-68 and
FWS005434; and
• Acknowledgement that the widespread use of GE corn and soybeans on a regular
basis “actually encourages herbicide resistance,” see FWS005434 (citing Duke
and Powles 2008).
See Pls.’ Mot. at 27-28. Plaintiffs further note that Defendants fail to substantiate their claims
that Integrated Pest Management and the limit of GE cultivation to a five-year period effectively
lower the threat of glyphosate resistance. See id. at 28-29; see also Pls.’ Reply at 8.
Defendants respond that the EA acknowledged the risk of glyphosate-resistant weeds,
see, e.g., FWS005434, but determined that “proper stewardship techniques (like crop rotation)
and the five year limit on GM corn and soybeans use would reduce the likelihood of developing
20
glyphosate-resistant weeds on refuges.” Defs.’ Mot. at 11. These considerations are set forth in
the EA, which points to “Integrated Pest Management” (IPM) techniques currently employed by
the Agency on refuges to “minimize the likelihood of herbicide resistance by regularly changing
the technique used to control weeds: rotating type of herbicide used, rotating crop planted, and
using mechanical methods.” FWS005434. The EA directs the public to additional information
on these techniques in FWS guidance available at
http://www.fws.gov/contaminants/Documents/IPMfinal.pdf. See FWS005435 (describing IPM
and recognizing “decrease[d] pest resistance from repetitive pesticide use” as a benefit of
program). Studies cited within the EA further underscore the importance of such techniques,
noting that glyphosate-resistant weeds can be “minimized and managed through the
reintroduction and maintenance of diversity in weed control tools” and employing diverse weed-
management practices, including “better agronomic management to enable crops to suppress
weeds and wise crop husbandry/rotations [to] enable producers to reduce glyphosate reliance.”
See FWS003997; see also FWS003804-10 (study identifying weed-control tactics, including
rotation of crops and rotation of herbicides as means to control glyphosate-resistant weeds).
The third significant impact that Plaintiffs claim has been insufficiently addressed in the
EA is the risk of transgenic contamination. See Pls.’ Mot. at 29-31. Plaintiffs assert that
“[t]ransgenic crops grown on refuges can contaminate neighboring fields and seed stocks.” Id. at
29. Specifically, they claim that despite a significant number of organic farmers in the Midwest
region – a majority of whom grow corn – the agency’s “perfunctory review” relied on two
“outdated USDA documents” to conclude that “‘[a] small influx of pollen originating from a
given corn variety does not appreciably change the characteristics of corn in adjacent fields.’”
Id. at 30-31 (citing FWS005435).
21
Defendants respond that the potential for gene flow from GM corn and soybeans to
neighboring crops was addressed in the EA and that the impacts were not significant for two
reasons. See Defs.’ Mot. at 12-13. First, the risk of corn cross-pollination is limited because a
“660 foot distance from the pollen source would lead to negligible pollen transmission.” Id. at
11-12 (citing FWS005435). Second, the risk of soybean cross-pollination is further minimized
because they are “‘highly self-pollinated with large, heavy seeds that are not easily dispersed.’”
Id. at 12 (citing FWS005429). These determinations, Defendants claim, are well supported by
prior analysis conducted by the USDA’s Animal and Plant Health Inspection Service (APHIS),
the agency charged with evaluating glyphosate-tolerant corn and soybeans. See id. Plaintiffs
retort that the APHIS analysis is outdated and ignores subsequent events that demonstrate the
risk of gene flow to non-transgenic crops, see Pls.’ Reply at 12, and that Defendants fail to
explain how the 660-foot buffer would be implemented. See id. at 13. Defendants claim that,
contrary to Plaintiffs’ assertions, the 660-foot buffer sufficiently reduces the risk of gene flow
and is required pursuant to USDA regulations. See Defs.’ Reply at 9.
For each of the three potential impacts identified by Plaintiffs, the Court finds that the EA
sufficiently addresses the environmental effects. While Plaintiffs challenge Defendants’
treatment of these impacts as cursory, see Pls.’ Mot. at 14, the reasonableness of the agency’s
assessment should be looked at with respect to the entirety of the analysis. For example, in
Humane Society of the U.S. v. Hodel, 840 F.2d 45 (D.C. Cir. 1988), this Circuit reasoned:
Although one might wish the Wildlife Service had addressed with
greater specificity the five factors urged above by plaintiffs, in the
context of the overall assessment filed by the Service the cursory
treatment these factors receive is not fatal to the Service’s finding.
. . . As in National Audubon Society v. Hester, 801 F.2d 405 (D.C.
Cir.1986), a case also involving the adequacy of an EA, “[t]he
Service’s documentation may have been succinct, but nonetheless
22
adequately discloses the concerns underlying the agency’s decision
and demonstrates that the decision rests on a rational basis.”
Id. at 62 (internal citations omitted).
Here, conversely, the treatment was far from cursory. As set forth in the preceding
paragraphs, FWS looked at each of Plaintiffs’ concerns. FWS considered the impacts identified
by interested parties through the notice-and-comment period – including the three specific risks
identified by Plaintiffs – and the ultimate determination reached by the Agency appears to “rest
on a rational basis,” such that the EA is adequate under NEPA. See also Delaware Audubon
Soc’y v. Salazar, 829 F. Supp. 2d 273, 285 (D. Del. 2011) (NEPA’s requirements met where
“[t]he final EA explicitly confronts public concerns, catalogues scientific research outlining risks
and benefits of the Project, and acknowledges certain environmental impacts but finds they are
not significant”). FWS’s conclusions may not be what Plaintiffs wish, but it cannot be gainsaid
that they took a hard look at the issues.
ii. Alternatives
Next, Plaintiffs argue that Defendants failed to consider reasonable alternatives in the
EA. See Pls.’ Mot. at 31-35. Defendants dispute this, maintaining that their analysis of
alternatives was thorough, as they considered a number of scenarios prior to their ultimate
selection. See Defs.’ Mot. at 9-10.
An agency’s choice of alternatives should be “evaluated in light of [its reasonably
identified and defined] objectives; an alternative is properly excluded from consideration in an
environmental impact statement only if it would be reasonable for the agency to conclude that
the alternative does not ‘bring about the ends of the federal action.’” City of Alexandria, Va. v.
Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (internal citation omitted); see also Flaherty, 850 F.
Supp. 2d at 71-72 (internal citations omitted). The range of alternatives an agency must consider
23
and discuss under NEPA “is a matter within [the] agency’s discretion.” Friends of
Omphompanoosuc v. Fed. Energy Regulatory Comm’n, 968 F.2d 1549, 1558 (2d Cir. 1992).
Agencies are required to deal with circumstances “as they exist and are likely to exist,”
but are not required to consider alternatives that are “remote and speculative.” Natural
Resources Def. Council, Inc. v. Hodel, 865 F.2d 288, 295 (D.C. Cir. 1988) (internal citations
omitted). An agency’s consideration of alternatives “must be more than a pro forma[ ] ritual.
Considering environmental costs means seriously considering alternative actions to avoid them.”
Southern Utah Wilderness Alliance v. Norton, 237 F. Supp. 2d 48, 52 (D.D.C. 2002); see also
Biodiversity Conservation Alliance v. U.S. Bureau of Land Mgmt., 404 F. Supp. 2d 212, 218-19
(D.D.C. 2005) (agency’s consideration of alternatives “entirely reasonable” where “only a
limited number of feasible ways to acquire subsurface geologic data for oil and natural gas
development” existed, and agency “expressly considered and rejected three alternatives that this
Court believes is representative of the spectrum of available methods”).
Plaintiffs claim that of the four alternatives presented in the Draft EA, FWS only
seriously considered two – “maintaining the status quo (continued cultivation of transgenic,
herbicide-resistant corn and soybeans on refuge lands) and farming on refuge lands without
transgenic crops” – and unaccountably “rejected [] two reasonable alternatives out of hand,
without analyzing them – ‘no farming’ and ‘unmanaged succession.’” Pls.’ Mot. at 32-33 (citing
FWS005409). These alternatives, they claim, were rejected without the agency’s “provid[ing]
[any] models projecting the cost or rate of restoration; nor [] evaluating the costs associated with
habitat restoration.” Id. Additionally, they argue that the Agency “entirely failed to consider” “a
myriad of other reasonable alternatives,” including growing alternate cover crops, employing
organic methods, or addressing potential planting restrictions that could reduce environmental
24
harms. Id. at 34. Plaintiffs further challenge the alternatives analysis as violating the agency’s
own internal policies, which forbid the use of transgenic crops unless “essential” to refuge
purposes. See id. at 35.
Defendants counter that the EA considered a proper range of reasonable alternatives, see
Defs.’ Mot. at 9, pointing to the five that were considered, as well as “five potential wildlife
issues, four potential habitat issues, and four socio-economic issues” for each alternative. See id.
(citing FWS005430-62). As to the “no farming” and “unmanaged succession” alternatives that
Plaintiffs claim were rejected “out of hand,” Defendants argue that an agency need only “briefly
discuss the reasons” why rejected possibilities were not reasonable alternatives. See Defs.’ Mot.
at 9 (citing Tongass Conservation Soc’y v. Cheney, 924 F.2d 1137, 1140-41 (D.C. Cir. 1991)
and 40 C.F.R. § 1502.14(a)). The two options were not reasonable, they claim, because the
agency lacks the resources to accomplish habitat restoration in the region without farming, and
“unmanaged succession” does not fulfill the purpose of refuges because “undesirable, invasive,
non-native plants” follow. See id. at 10 (citing FWS005409 and FWS005410). Additionally,
they claim that under NEPA, an agency is not required to evaluate “myriad” alternatives that do
not respond to the agency’s objectives. See id.The Court agrees with Defendants that the EA adequately evaluated alternatives. The EA
here studied, developed, and described appropriate alternatives to the recommended course of
action. See Humane Society of U.S. v. Department of Commerce, 432 F. Supp. 2d 4, 23
(D.D.C. 2006). The agency reviewed alternatives that were “reasonable” in light of the overall
objectives of the program (“administer[ing] a farming program that contributes to achieving the
establishing purposes for lands of the [System] or the mission of the [System]”). FWS005394;
25
FWS005402. Four alternatives were originally considered in the Draft EA. See FWS00757-792.
These alternatives included:
• Alternative A: Continue Farming for Multiple Objectives, GMGT Corn and
Soybeans Allowed (No Action) (Preferred Alternative);
• Alternative B: Farming for Habitat Restoration Objectives Only, GMGT Corn
and Soybeans Allowed;
• Alternative C: Farming for Multiple Objectives, No GMGT Corn and Soybeans;
• Alternative D: Limited Row Crop Farming, No GMGT Corn and Soybeans.
Id.In developing these alternatives, the agency evaluated a number of considerations,
including “[b]enefits and impacts to wildlife” and “[c]urrent goals and objectives identified in
completed 15-year comprehensive conservation plans.” See FWS00757. The EA briefly
addressed the no-farming and unmanaged-succession options in the “alternatives considered but
not developed.” Id. Both alternatives were rejected for failing to “fulfill the establishing
purposes of refuges and wetland management.” Id. Because both alternatives are inconsistent
with the overall objectives, the Court finds that they would not be “reasonable” and thus did not
require further examination. The Court finds, furthermore, that the five alternatives discussed in
the Final EA, see FWS005409-5462, are “representative of the spectrum of available methods.”
See Biodiversity Conservation, 404 F. Supp. 2d at 219; see also Delaware Audubon Soc’y, 829
F. Supp. 2d at 282-83 (EA’s discussion of alternatives reasonable where it contained detailed
discussion of three alternatives, reflected agency consideration of four other alternatives not
discussed in detail, and “‘[p]laintiffs have not identified a single alternative that the agency
should have considered but did not.’”) (internal citations omitted).
26
The selected alternative here was developed in response to the comments received by the
Agency to minimize the possibility of any environmental harm, weighing its environmental costs
with its ability to advance the Agency’s objectives. In fact, the Agency’s legitimate weighing of
alternatives is evinced by its non-selection of Alternative A, which was labeled the “Preferred
Alternative” in the Draft EA. While the Agency did not ultimately select the alternative
supported by Plaintiffs, the Court cannot find that it failed to adequately consider reasonable
alternatives. See, e.g., Delaware Audubon Soc’y, 829 F. Supp. 2d at 287 (finding depth of
analysis in EA and thorough process employed by agency supported final EA and FONSI).
iii. Refuge-Specific Impacts
Plaintiffs also challenge the EA for failing to address the site-specific impacts of growing
transgenic crops on refuges. See Pls.’ Mot. at 14-19. They argue that a site-specific analysis is
necessary where the action will affect “thirty-one separate and distinct national wildlife and
wetland management districts.” Id. at 14. Defendants respond that the agency had no obligation
to evaluate site-specific impacts. See Defs.’ Mot. at 13-14. In any event, they argue that there is
“a more than adequate system in place for site-specific analysis of environmental impacts”
through separate agency actions, including Comprehensive Conservation Plans (CCPs). See id.
at 13; see also Defs.’ Reply at 10.
When evaluating the adequacy of an EIS or an EA, courts have long recognized a
distinction between programmatic and site-specific environmental analyses. See, e.g., Nat’l
Wildlife Fed. v. Appalachian Reg. Comm’n, 677 F.2d 883, 888 (D.C. Cir. 1981) (“Whereas the
programmatic EIS looks ahead and assimilates ‘broad issues’ relevant to one program design, the
site-specific EIS addresses more particularized considerations arising once the overall program
reaches the ‘second tier,’ or implementation stage of its development.”); see also Friends of
27
Yosemite Valley v. Norton, 348 F.3d 789, 800-01 (9th Cir. 2003) (recognizing that “NEPA
requires a full evaluation of site-specific impacts only when a ‘critical decision’ has been made
to act on site development- i.e., when ‘the agency proposes to make an irreversible and
irretrievable commitment of the availability of resources to a project at a particular site’”)
(quoting California v. Block, 690 F.2d 753, 761 (9th Cir. 1982) (emphasis deleted)).
The agency action challenged here is a programmatic analysis. See FWS000292
(describing EA as a “programmatic Environmental Assessment”); FWS000299 (same).
Plaintiffs argue that site-specific environmental impacts must nonetheless be discussed in any
programmatic EA where such impacts are “reasonably foreseeable.” Pls.’ Mot. at 14 (citing
Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1072 (9th Cir. 2002), and Pacific Rivers
Council v. U.S. Forest Serv., 668 F.3d 609, 623 (9th Cir. 2010)). Such an approach, however,
has not been uniformly adopted. For instance, in Wyoming v. U.S. Dept. of Agriculture, 661
F.3d 1209 (10th Cir. 2011), the Tenth Circuit rejected this requirement, affirming the district
court’s conclusion that it was not necessary to conduct a site-specific analysis: “Because the
[challenged rule] is a ‘broad’ nationwide rule, the Forest Service was permitted under 40 C.F.R.
§ 1502.4(c)(2) to evaluate the common environmental impacts and effects of the rule
‘generically.’” Id. at 1256. It further observed that its “role in reviewing the Forest Service’s
EIS ‘is simply to ensure that the agency has adequately considered and disclosed the
environmental impact of its actions,’” id. at 1256-57 (internal citations omitted), ultimately
holding that the agency had “adequately done so in this instance, despite the fact that it did not
include a detailed site-specific analysis of the environmental consequences at each and every
specific [site] affected by the rule.” Id. at 1257; see also Sierra Club v. Kimbell, 623 F.3d 549,
560 (8th Cir. 2010) (EIS did not need to address site-specific impacts at programmatic planning
28
stage as long as it provided sufficient detail to foster informed decisionmaking); Fund for
Animals v. Kempthorne, 538 F.3d 124, 138 (2d Cir. 2008) (programmatic EIS sufficient in
absence of any certain site-specific action).
Furthermore, because determining the appropriate level of environmental analysis “is
fairly debatable,” Pacific Rivers, 689 F.3d at 1030, courts have recognized an “obligation [] to
defer to the expertise of the agency.” Id. Here, not only has the agency provided a
programmatic assessment in its EA, but there is a site-specific component as well. Specifically,
the EA states that “Comprehensive Conservation Plans (CCPs) have been completed or [are]
currently in progress for all but two refuges or management districts that have farming
programs,” with the remaining two “to occur next year.” FWS00549. The Court will not
substitute Plaintiffs’ view as to the timing of site-specific analyses for that of the expert agency.
While Plaintiffs’ brief simultaneously challenges the sufficiency of the CCPs, see Pls.’ Reply at
18-20, the challenged agency action before the Court is only the adequacy of the regional EA.
See Compl., ¶¶ 58-63. The Court thus need not address the specific challenges to the adequacy
of the particular site-specific reports here. Last, it is worth noting that to extend Plaintiffs’
reading of when site-specific analyses must be included in an EA would transform every
programmatic analysis into a site-specific analysis, which would effectively make the
programmatic approach “per se invalid under NEPA,” a reading that has been expressly rejected.
See Friends of Yosemite, 348 F.3d at 800.
Because the Court finds that refuge-specific analyses were not necessary within the
challenged EA, it was not arbitrary or capricious for the Agency to analyze impacts on a region-
wide basis.
29
b. Mitigation
In addition to arguing that Defendants failed to take a “hard look,” Plaintiffs also contend
that the Agency’s “unsubstantiated remarks and reliance on voluntary measures to reduce a
significant environmental impact do not comply with NEPA.” See Pls.’ Mot. at 28. Even if an
agency determines that there would be an environmental impact of significance, an EIS will not
be necessary where the agency has shown that “‘safeguards in the project sufficiently reduce the
impact to a minimum.’” Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C.
Cir. 2008) (citing TOMAC v. Norton, 433 F.3d at 861). Plaintiffs argue that this showing here
was insufficient, thus requiring the agency to prepare an EIS. See Pls.’ Reply at 9-10.
One mitigation measure challenged by Plaintiffs is Defendants’ assertion that increased
herbicide use will not adversely affect wildlife because refuges must follow labeling instructions
and comply with the Pesticide Use Proposals. See Pls.’ Reply at 10 (pointing to Defs.’ Mot. at
11; FWS005455-56). The EA states that, for each alternative evaluated,
[p]rotective measures will be followed to ensure the proper
use of herbicides on Service lands. Service policy requires
that land managers complete a Pesticide Use Proposal, or
PUP, before applying herbicide on Service lands. . . .
Requiring PUPs helps ensure that product label instructions
are followed, that pesticides are used effectively and safely,
that the lowest risk products are selected, and that buffers
are maintained.
FWS005413; see also FWS005431-32 (describing agency’s policies towards herbicide use and
how these policies result in minimizing impact on wildlife). Plaintiffs may think more should be
done, but they have not shown that the Agency’s reliance on existing procedures to minimize
risks associated with herbicides was arbitrary or capricious. See FWS005460-61 (Table 3:
Comparison of Impacts by Issue).
30
Similarly, Plaintiffs challenge Defendants’ determination that the risk of weed resistance
and transgenic contamination will be minimized. See Pls.’ Mot. at 12-13. Defendants, however,
have substantive mitigation measures in place – e.g., a five-year limit on transgenic crop use on
particular plots, crop rotation, the use of Integrated Pest Management (IPM) techniques, and 660-
foot buffers – and Plaintiffs have not shown why it was arbitrary and capricious for Defendants
to determine that such measures sufficiently reduced the environmental impacts. See
FWS005434, FWS005441, FWS005459, FWS005436, FWS005460. The Court thus finds that it
was not arbitrary or capricious for Defendants to rely on these mitigation measures in ultimately
determining that the risks identified by Plaintiffs were not significant enough to require an EIS.
See, e.g., Michigan Gambling Opposition (MichGO) v. Norton, 477 F. Supp. 2d 1, 11 (D.D.C.
2007) (FONSI properly issued where mitigation measures reduced environmental impact of
proposed action).
c. Overall Adequacy of the EA
The Court finds, therefore, that Plaintiffs’ challenges – either singly or in concert – do not
establish that the EA is inadequate under the test set forth in TOMAC, 433 F.3d at 861. Under
the second and third factors of the test, which Plaintiffs challenge together, the Court holds that
the Service took a “hard look” at the environmental impacts in preparing the EA and made a
convincing case for its FONSI. See id. Under the final factor, furthermore, the Court is satisfied
that the Agency acted in accordance with the law in identifying existing policies that would
minimize the impacts of the project, obviating the need for an EIS. The Court is satisfied that
“no arguably significant consequences have been ignored.” See id. at 860-61. As a result, the
Court finds that Defendants adequately considered the adverse environmental effects in the EA
before determining that an EIS was not necessary, making the decision to forgo an EIS not
31
arbitrary or capricious. See Spiller v. White, 352 F.3d 235, 245 (5th Cir. 2003) (where agencies
had completed comprehensive EA pursuant to process set forth by NEPA, federal court could not
call agency’s conclusion arbitrary or capricious, regardless of whether court agreed or disagreed
with its conclusion). In addition, the instant case is not one in which it appears that there was an
arbitrary design engineered to reach a particular, predetermined conclusion as to the choice of
alternatives. See Delaware Audubon Soc’y, 829 F. Supp. 2d at 287-88 (analysis in EA and
process followed by agency did not suggest that agency was “pushing forward with its
predetermined plan without first completing an objective analysis”). On the contrary, the EA
and FONSI here were the product of extensive analysis and significant opportunities for public
participation, and there is nothing to suggest to this Court that the FONSI determination was
prejudged.
C. Count II: NWRSAA and Improvement Act
Plaintiffs also raise a distinct set of challenges relating to Defendants’ obligations under
the National Wildlife Refuge System Administration Act (NWRSAA) and the National Wildlife
Refuge Improvement Act (Improvement Act). Enacted in 1966, NWRSAA sets forth the
guiding principles and policies for the administration and management of the Refuge System.
The mission of the Refuge System is to “administer a national network of lands and waters for
the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant
resources and their habitats within the United States for the benefit of present and future
generations of Americans.” 16 U.S.C. § 668dd(a)(2); see also FWS005400. The Improvement
Act, similarly, directs the FWS to, among other things, “ensure that the biological integrity,
diversity, and environmental health of the System are maintained.” 16 U.S.C. § 668dd(a)(4)(B).
The FWS, “under such regulations as [the Secretary] may prescribe,” is authorized “to permit the
32
use of any area within the System for any purpose . . . whenever [the Secretary] determines that
such uses are compatible with the major purposes for which such areas were established.” Id. §
668dd(d)(1)(A). The NWRSAA defines the phrase “compatible use” as “a wildlife-dependent
recreational use or any other use of a refuge that, in the sound professional judgment of the
Director [of the FWS], will not materially interfere with or detract from the fulfillment of the
mission of the System or the purposes of the refuge.” Id. § 668ee(1). NWRSAA regulations
require that such compatibility determinations: (1) be in writing; (2) identify the proposed or
existing use that the compatibility determination applies to; and (3) state whether the proposed
use is in fact a compatible use based on “sound professional judgment.” See 50 C.F.R. § 25.12.
Plaintiffs argue that Defendants violated the NWRSAA and its implementing regulations
with regard to the Compatibility Determinations (CDs) addressing transgenic crops. See Pls.’
Mot. at 36-37. Plaintiffs’ central argument is that it was arbitrary and capricious for FWS to rely
on general-farming CDs, rather than transgenic-farming CDs. See id. at 39. Defendants contend
that the NWRSAA does not require crop-specific CDs and that “farming” is a compatible use
under the Act. See Defs.’ Mot. at 15-16. 2
The “compatible use” regulations set forth three categories of “refuge use”: “recreational
use,” “refuge management economic activity,” and “other use of a national wildlife refuge by the
public or other non-National Wildlife Refuge System entity.” 50 C.F.R. § 25.12. “Refuge
management economic activity” is further defined as “refuge management activity on a national
wildlife refuge which results in generation of a commodity which is or can be sold for income or
revenue or traded for goods or services. Examples include: Farming, grazing, haying, timber
2
Plaintiffs also argue that FWS failed to complete CDs for each refuge where farming takes place, see id.
at 37, and that other efforts undertaken by the agency (e.g., GMC Eligibility Questionnaires) do not satisfy
NWRSAA requirements. See id. at 43. The Court, however, need not address either argument. Plaintiffs’ Reply
appears to abandon the first challenge, and because the general-farming CDs fulfill the Agency’s requirements, the
Court need not determine whether any other actions could have done so.
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harvesting, and trapping.” Id. As Defendants note, these uses are “defined by the broad
economic activity itself,” rather than by the particular commodity. See Defs.’ Mot. at 16.
Plaintiffs cite no authority for their position that the regulations require CDs at the crop level.
See Pls.’ Mot. at 39-43; Pls.’ Reply at 28-30.
An agency’s interpretation of its own regulation is entitled to “‘substantial deference.’”
St. Luke’s Hosp. v. Sebelius, 611 F.3d 900, 904 (D.C. Cir. 2010) (quoting Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512 (1994)). Under this standard, the agency’s construction
controls unless it is “plainly erroneous or inconsistent with the regulation.” Id. (quoting Thomas
Jefferson Univ., 512 U.S. at 512). In other words, a court may find an agency interpretation
unlawful if “an ‘alternative reading is compelled by the regulation’s plain language or by other
indications of the Secretary’s intent at the time of the regulation’s promulgation.’” Thomas
Jefferson Univ., 512 U.S. at 512 (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)).
Here, the Court finds that the Service’s interpretation of the “compatible use” regulation to refer
to farming generally is not plainly erroneous. The Agency, consequently, discharged its duties
under the specific regulation by preparing written compatibility determinations at the level of
“farming.” Cf. Delaware Audubon Soc’y, Inc. v. Sec’y of the U.S. Dept. of the Interior, 612 F.
Supp. 2d 442, 450 (2009) (finding violation of NWRSAA where defendants failed to make
written compatibility determination prior to permitting cooperative farming on refuge lands).
Additionally, as Defendants correctly note, Plaintiffs cannot challenge the CDs under a
theory that they fail to comply with the Agency’s own internal guidance. See Defs.’ Mot. at 18;
Defs.’ Reply at 13-14. This Circuit has recognized that while “agency ‘rules’ that establish
binding norms or agency actions that occasion legal consequences [] are subject to review,”
“‘general statements of [agency] policy’” are unreviewable. Ctr. for Auto Safety v. Nat’l
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Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006). While “it is not always
easy” to categorize a specific action under this framework, id., the Court finds that the internal
guidance documents cited by Plaintiffs here are the latter and do not create enforceable rights.
See also Wilderness Soc. v. Norton, 434 F.3d 584, 596 (D.C. Cir. 2006).
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion for Summary
Judgment and deny Plaintiffs’. A separate Order consistent with the Opinion will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 15, 2012
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