A few days ago, I and a few colleagues from Pace and several other American law schools met at Shanghai Jiao Tong University School of Law with a number of Chinese academics and members of the Chinese Ministry of Environment. We were there because the Chinese government wanted our input as it attempts to reshape the country’s environmental law regime to make it more effective and enforceable. Towards that end, the members of the Ministry were particularly interested in the United States’ National Environmental Policy Act (NEPA).
NEPA requires that federal agencies contemplating an action that could significantly impact the environment do an assessment to determine the scope and nature of those potential impacts. This involves a preliminary Environmental Assessment (EA) and then, unless the EA makes clear that no significant environmental impact is possible, a full review in the form of an Environmental Impact Statement (EIS).
NEPA is purely procedural in scope; once an agency carries out a proper review, it can go forward with the proposed action regardless of the potential impact. However, the assessment process often reveals potential mitigation measures and/or legal hurdles that can change or even halt a given project.
My presentation to the Chinese dealt with the 2008 Supreme Court case, Winters v. NRDC (129 S.Ct 365 (2008)). In Winters, the NRDC filed suit to stop the Navy from using Mid-Frequency Active Sonar (MFA) during exercises off the California coast until it completed an EIS that adequately documented potential harms to marine mammals. The Navy lost in the lower courts, where the district court issued (and the circuit court upheld) a preliminary injunction staying the exercise pending resolution of the lawsuit. The Navy asked for and received an emergency exemption from the President’s Council on Environmental Quality (CEQ) relieving it from compliance with NEPA. The Navy then went back to the lower courts asking that the injunction be lifted. The lower courts refused – holding that the CEQ’s action violated the separation of powers. The Navy appealed to the Supreme Court, which reversed on a number of grounds.
Filed under: animal law, environmental law | Tagged: animal ethics, animal law, animal welfare, China, Endangered Species Act, environmental advocacy, environmental ethics, environmental law, environmentalism, Inc, marine mammals, MFA sonar, National Environmental Policy Act, National Wildlife Federation v. Burlington N.R.R., navy, NEPA, Pace Law School, preliminary injunctions, President’s Council on Environmental Quality, Shanghai Jiao Tong University School of Law, Sierra Club v. Marsh (872 F.2d 497, sonar, whales, Winters v. NRDC | 2 Comments »