Attempts to avoid NEPA: Is it bad faith?

Technical Report · Fri Dec 01 04:00:00 EST 1995

OSTI ID:125992

Tuckfield, D J ^[1]

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1. Vinson & Elkins L.L.P., Houston, TX (United States)

The National Environmental Policy Act (NEPA) imposes procedural requirements on federal agencies that undertake {open_quotes}major Federal actions significantly affecting the quality of the human environment.{close_quotes} Determining whether a project is a major federal action, subject to NEPA, is not always an easy task. When a determination is made that a project is not subject to NEPA, opponents of the project and environmental organizations occasionally cry foul. Often there are allegations that the federal agency of the project proponent (or both) acted in bad faith to avoid NEPA. The question of whether bad faith is relevant in NEPA inquiries has been the subject litigation for many of years. In that time, courts have addressed a number of bad faith questions. A common question is whether it is appropriate for a non-federal project proponent to structure a project to maintain eligibility for federal funding, but at the last minute withdraw the project from eligibility for the sole purpose of avoiding NEPA. More difficult questions arise when the federal government allocates some federal money to the project for preliminary design work before the project is withdrawn from eligibility for additional federal construction funds. Still other questions arise with respect to whether project proponents must reimburse the federal government for funds allocated to a project before the determination is made that it will not be a federal project. This paper will trace the evolution of the courts` struggle with bad faith NEPA claims. It will then show how courts have recently begun to develop a workable and appropriate test for determining when bad faith is an issue in NEPA litigation. This issue is important for project proponents and federal agency officials so they will not unwittingly take steps others might construe as bad faith. It is important for members of environmental organizations so they may recognize and properly assert bad faith claims when appropriate.

• Research Organization: National Association of Environmental Professionals, Washington, DC (United States)
• OSTI ID: 125992
• Report Number(s): CONF-9506115--
• Country of Publication: United States
• Language: English

Related Subjects

29 ENERGY PLANNING, POLICY, AND ECONOMY
IMPLEMENTATION
LEGAL ASPECTS
POLITICAL ASPECTS
US NATIONAL ENVIRONMENTAL POLICY ACT