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The Bat Stops Here - Or does it ? The Continuing Obligation of Agencies under NEPA and ESA

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  1. Introduction
  2. Facts and holding
    1. National environmental policy act
    2. The endangered species act
    3. Judicial review
  3. Instant decision
  4. Comment
  5. Conclusion

The National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) are two important environmental statutes passed by Congress to help preserve the earth and its resources for future generations. Under these statutes, governmental agencies are required to determine how their actions will affect the environment and take steps to mitigate any harm they may cause. In Heartwood, the Eighth Circuit considered whether the United States Forest Service had met its obligation to the environment and the endangered Indiana bat. This note discusses the court's analysis of that obligation and what that discussion means for federal agencies in the future.

[...] The court can set aside agency action as unlawful if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law; unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. [...]

[...] Judicial Review Judicial review of a federal agency action conducted pursuant to NEPA or ESA is controlled by the Administrative Procedure Act (APA).[39] The APA allows a court to set aside an agency's action for six different reasons.[40] Courts defer to federal agencies when the decisions made ?require a high level of technical expertise.?[41] In regard to most actions taken under NEPA and ESA, a court will reverse the agency only if it has acted arbitrarily and capriciously.[42] The reviewing court will look at ?whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment? on the agency's part.[43] A court must thoroughly search the record and satisfy itself that the agency has ?made a reasoned decision.?[44] The court must not simply defer to the agency's decision.[45] ESA requires an agency to the best scientific and commercial data available? when making decisions regarding endangered or threatened species.[46] This requirement serves to ensure that agencies do not implement ESA haphazardly with no real evidence to support their findings.[47] Although few cases have considered the best available evidence requirement, one court of appeals has found that this requirement does not require an agency to conduct independent studies.[48] In the Southwest Center case, plaintiff challenged the FWS's decision not to include the Queen Charlotte goshawk as a threatened or endangered species.[49] The FWS had concluded this listing was not warranted after consideration of the best available scientific and commercial evidence.[50] The United States Court of Appeals for the District of Columbia held that the ?best available data requirement makes it clear [there is] no obligation to conduct independent studies.?[51] As long as the agency considers information that is arguably susceptible to discovery? then it has met the data requirement.[52] There have been numerous cases dealing with whether the decision to forego issuing an EIS violates NEPA.[53] The Supreme Court in Marsh v. [...]

[...] The court also noted as part of the Forest Service's ?hard look? it adequately considered the ?unique characteristics of the geographic area.? The effects of the Eastwood II project on the surrounding rivers and park areas were considered in the environmental assessment. The impact on these areas was also found to be insignificant. Id. at 433. Id. Id. at 433-34. The document, ?Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations,? was held to be non- binding because it was not a regulation. [...]

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