People of the State of Cal. v. U.S. D.O.I.

In an amended opinion the panel affirmed that the Secretary of the Interior does not violate the National Environmental Policy Act when determining that a supplemental environmental impact statement is unnecessary.

The Secretary of the Interior controls the delivery of river water. The Secretary prepared an environmental impact statement (“EIS”) concerning California’s Salton Sea and its continued access to Colorado River water and then implemented a new water delivery schedule. Imperial County and the Imperial County Air Pollution Control District sued the Secretary asserting that the EIS did not comply with the National Environmental Policy Act (“NEPA") or the Clean Air Act (“CAA”). The district court originally granted summary judgment in favor of the defendants holding that plaintiffs lacked Article III standing and also rejected their NEPA claim on its merits. The panel first reviewed for standing noting that the plaintiffs have established Article III standing by plainly alleging (1) that the Secretary violated procedural rules (2) NEPA and CAA were designed to protect the plaintiff’s interests and (3) the challenged action threatens the plaintiffs’ concrete interests. As to the NEPA claims, the panel noted that they must defer to the “informed discretion of the responsible federal agencies.” The panel went on to hold that although the Secretary once cited the Implementation Agreement EIS and Transfer EIS as a single document in her district court briefing, that minor misstatement does not prejudice the panel’s review. The panel used an “independent utility” test to determine whether each of the two projects would have taken place without the other, thus having independent utilities. They determined that the Transfer EIS considered a separate water-transfer agreement among the districts and proposed habitat conservation programs while the Implementation Agreement EIS analyzed the on river effects of altering the Colorado River diversion points. The Secretary did not abuse her discretion by concluding that a supplemental EIS was unnecessary. A supplemental EIS is unnecessary when an agency’s final decision falls “within the range of alternatives” considered in an EIS. AFFIRMED.