12-05-13 WMC PLF Brief Argues Gov’t Must Opey NEPA Law

Pacific Legal Foundation Brief Argues Government Must Obey NEPA Law

By Sarah Rolph

This story is the fifth in a series of reports about the Amicus Curiae (“friend of the court”) briefs filed in support of Drakes Bay Oyster Company’s petition to the Ninth Circuit requesting an en banc hearing of its case. The historic oyster farm is fighting for an injunction to remain open in the face of Park Service wrongdoing while its lawsuit against the agency proceeds. Citizen readers are invited to read the briefs and to respond to these stories with letters to the editor, or with essays of their own.

The California Cattlemen’s Association (CCA), joined by the Pacific Legal Foundation and the Building Industry Association of the Bay Area, filed an important brief in support of the oyster farm that cuts right to the heart of the matter:  can the government abuse its power with impunity?

CCA has several members who ranch within the boundaries of Point Reyes National Seashore under permits or authorizations from the National Park Service.  These members have a strong interest in ensuring that the National Park Service complies with applicable laws when acting on future renewals of their permits.  CCA is concerned that the majority’s opinion, which held that decisions to deny permits are both exempt from the nation’s foundational environmental law  (the National Environmental Policy Act, or NEPA) and from judicial review, could tilt the balance towards non-renewal of their own permits.

The brief argues that allowing the government to disregard the NEPA process any time it believes its actions will benefit the environment would allow the government far too much power.

As the brief points out, NEPA is meant to ensure that a federal agency “makes well informed, carefully calculated decisions regarding environmental consequences and, just as importantly, enables dissemination of relevant information to external audiences potentially affected by the agency’s decisions.” The brief also notes that actions intended to benefit the environment do not always necessarily do so. And it argues that if the courts excuse federal agencies from complying with NEPA any time the agency claims to be acting to improve the environment, agencies would then have an incentive to avoid NEPA responsibility by simply claiming that any action, such as the denial of a permit, is environmentally beneficial.

The brief is well worth reading it its entirety. You can find it here: http://cdn.ca9.uscourts.gov/datastore/general/2013/10/25/1315227_Amicus_brief_by_Pacific_Legal_Foundation.pdf

Send your letters and essays about this brief (and/or the others in this series) to the Citizen editor at editor@westmarincitizen.com

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