Documenting A NEPA Decision:
Building an Administrative Record
I. Purpose and importance of the administrative
record
A. Ensuring decisionmakers have complete information
B. Documenting the thorough analysis by NPS
C. Demonstrating compliance with NEPA
D. Documenting compliance with other laws
E. Supporting and defending the decision in court
F. Responding to comments from the public
II. How to create an administrative record
A. Importance of starting early and being organized
1. Task seems boring but is crucial for success
2. Key staff function that needs recognition
B. Ensuring that all NEPA requirements are
documented
1. Showing that procedures have been followed
2. Documenting substantive analysis of the proposal, its impacts,
and alternatives
C. Kinds of documents to be included
1. All documents considered, both pro and
con
2. Documents obtained from other agencies
3. Public submissions
4. Records and transcripts from public meetings
5. Agency responses to commenters and others
6. Documents recording oral communications and reproducible scientific
data
7. Differences in contents of records for CXs, BAs, and EISs
D. Sources of documents
1. Within the NPS
2. Other Interior agencies
3. Other federal and state agencies .
4. Academia and general public
E. Material that can be omitted from the record
1. Drafts and other material not subject to FOIA
2. Attorney-client communications and legal memos
3. Confidential business information from the applicant
4. Redacting confidential portions of documents
5. Establishing a confidential segment of the administrative record
III. Organizing the record
A Arranging documents in a logical order
B. Establishing subject headings and sub-files
C. Numbering documents and pages
D. Preparing an index
F. Providing public access and making copies of documents
G. Maintaining a master copy
H. Submitting the record to court
IV. How the record will be used and reviewed
A. Within the NPS
1. To document the thoroughness of the analysis
2. To ensure the decisionmakers are fully informed
3. To reflect disagreement, either intra- or inter-agency
B. By the public
1. To challenge NPS data and conclusions
2. 2. To document opponents' views
C. In the courts
1. Discovery by challengers is reduced
2. Judges' review is limited to the record unless there are glaring
omissions
3. NPS can show judges that its analysis is complete and that is considered
opponent's views
Guidance to Federal Agencies on Compiling
The Administrative Record
Dated: January 1999
Introduction
Under the Administrative Procedure Act (APA), a court
reviews an agency's action to determine if it was "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law."
5 V.S.C. § 706(2) (A). In making this determination, a court evaluates
the agency's whole administrative record. The administrative record is
the paper trail that documents the agency's decision-making process and
the basis for the agency's decision.
The APA governs judicial review of a challenged agency
decision. However, several statutes specify what documents and materials
constitute an administrative record, e.g., 42 V.S.C. § 7607(d)(7)(A)
(provision states what materials will constitute the record for the purpose
of judicial review of certain enumerated types of rulemaking issued under
the Clean Air Act); 42 V.S.C. § 9613(j) and (k) (CERCLA). At the
outset, be sure to determine whether a statute other than the AP A applies
in the case. In addition, regulations may govern how to assemble a record.
See, e.g., 40 C.F.R. 300.800 -300.825 (CERCLA); 40 C.F.R. Part 24 (RCRA
Corrective Action). See also FRAP Rules 16 and 17 (record on review or
enforcement and filing of the record).
The purpose of this memorandum is to provide guidance
to agencies in compiling the administrative record of agency decisions
other than a formal rulemaking or an administrative adjudication. Optimally,
an agency will compile the administrative record as documents and materials
are generated or received in the course of the agency decision-making
process. The record may be a contemporaneous record of the action. However,
the administrative record may be compiled by the agency after litigation
has been initiated. An agency employee should be designated to be responsible
for compiling the administrative record. That individual will be responsible
for certifying the administrative record to the court. S/he may keep a
record of where s/he searched for the documents and materials and who
was consulted in the process of compiling the administrative record.
It is critical for the agency to take great care in
compiling a complete administrative record. If the agency fails to compile
the whole administrative record, it may significantly impact our ability
to defend and the court's ability to review a challenged agency decision.
1. General Principles for Compiling the Administrative
Record
The administrative record consists of all documents and materials directly
or indirectly considered by the agency decision maker in making the challenged
decision. It is not limited to documents and materials relevant only to
the merits of the agency's decision. It includes documents and materials
relevant to the process of making the agency's decision.
Include documents and materials whether they
support or do not support the final agency decision.
Include documents and materials which were
before or available to the decision-making office at the time the decision
was made.
Include documents and materials that were
considered by or relied upon by the agency.
Include documents and materials that were
before the agency at the time of the challenged decision, even if they
were not specifically considered by the final agency decision-maker.
Include privileged and non-privileged documents
and materials. (See section 4).
2. Where to Find the Documents and Materials That Comprise
the Administrative Record
The agency should identify an agency employee to be responsible for compiling
the administrative record. The identified agency person should be responsible,
careful, and prepared to provide an affidavit. S/he should keep a record
of where s/he searched for documents and who was consulted in the process.
S/he should conduct a thorough search for the purpose of compiling the
whole record, including the following:
Contact all agency people, including program
personnel and attorneys, involved in the final agency action and ask
them to search their files and agency files for documents and materials
related to the final agency action. Include agency people in field offices.
Contact agency units other than program personnel,
such as congressional and correspondence components.
Where personnel involved in the final agency
action are no longer employed by the agency, search the archives for
documents and materials related to the final agency action. A former
employee may be contacted for guidance as to where to search.
Determine whether there are agency files relating
to the final agency action. If there are such files, search those files.
If more than one agency was involved in the
decision-making process, the lead agency should contact the other agencies
to be sure the record contains all the documents and materials that
were considered or relied on by the lead agency.
Search a public docket room to determine whether
there are relevant documents or materials.
3. What Documents and Materials To Include In The Administrative
Record
1) Types of materials:
Documents that are to be included in the administrative record should
not be limited to paper but should include other means of communication
or ways of storing or presenting information, including e-mail, computer
tapes and discs, microfilm and microfiche. See 36 C.F.R. Chapter XII,
subchapter B (electronic records). The term should include data files,
graphs, charts and handwritten notes. Do not include personal notes,
meaning an individual's notes taken at a meeting or journals maintained
by an individual, unless they are included in an agency file. An agency
file is determined by agency control, possession, and maintenance.
2) Kinds of Information:
Include all documents
and materials prepared, reviewed, or received by agency personnel
and used by or available to the decision-maker, even though the final
decision-maker did not actually review or know about the documents
and materials.
Include policies, guidelines,
directives and manuals.
Include articles and books.
Be sensitive to copyright laws governing duplication. Include factual
information or data.
Include communications
the agency received from other agencies and from the public, and any
responses to those communications. Be aware that documents concerning
meetings between an agency and OMB should be included but may qualify,
either partially or fully, for the deliberative process privilege.
Include documents and
materials that contain information that support or oppose the challenged
agency decision.
Exclude documents and
materials that were not in existence at the time of the agency decision.
As a general rule, do
not include internal "working" drafts of documents that
were or were not superseded by a more complete, edited version of
the same document. Generally, include all draft documents that were
circulated for comment either outside the agency or outside the author's
immediate office, if changes in these documents reflect significant
input into the decision-making process. Drafts, excluding "working"
drafts, should be flagged for advice from the DOJ attorney or the
Assistant United States Attorney (AUSA) on whether: 1) the draft was
not an internal "working" draft; and 2) the draft reflects
significant input into the decision-making process.
Include technical information,
sampling results, survey information, engineering reports or studies.
Include decision documents.
Include minutes of meetings
or transcripts thereof.
Include memorializations
of telephone conversations and meetings, such as a memorandum or handwritten
notes, unless they are personal notes.
4. How To Handle Privileged Documents and Materials
Generally, the administrative record includes privileged
documents and materials and documents and materials that contain protected
information. However, once the record is compiled privileged or protected
documents and materials are redacted or removed from the record.
The agency should consult with the agency counsel and
the DOJ attorney or the AUSA as to the type and the extent of the privilege(s)
asserted. Be sensitive to the relevant privileges and prohibitions against
disclosure, including, but not limited to, attorney-client, attorney work
product, Privacy Act, deliberative or mental processes, executive, and
confidential business information.
If documents and materials are determined to be privileged
or protected, the index of record must identify the documents and materials,
reflect that they are being withheld, and state on what basis they are
being withheld.
5. How to Organize the Administrative Record
Organize the documents and
materials in a logical and accessible way.
Organize the documents and
materials in chronological order and/or by topic.
Documents and materials
that do not fit into a chronological order may be separated by category,
e.g., internal policies, guidelines or manuals.
After a DOJ attorney or
an AUSA has had the opportunity to review the administrative record
for completeness and organization, it may be useful to bates stamp or
to number each item. A DOJ attorney or an AUSA may review the documents
and materials the agency decided were not contained in the administrative
record.
Prepare an index to the
administrative record.
Index should identify each
document and material by the bates stamp number or document number and
a brief description of the document or material, e.g., “memorandum
dated June 5, 1997 from Mary Smith to EP A Administrator Jones regarding
June 6, 1997 meeting agenda.” If a document or material is being
withheld based on a privilege or prohibition, state the privilege or
prohibition.
The agency must certify
the administrative record. (If the agency fails to certify the record,
the government may not be able to file a motion for summary judgment.)
Certificate language should reflect how the agency person who was responsible
for compiling the record has personal knowledge of the assembly of the
administrative record. Attached are sample certificates. Neither a DOJ
attorney nor an AUSA should certify the record to avoid having them
be a possible witness in the case.
The DOJ attorney or the AUSA
must consult the local rules of the court in which the matter is pending
to determine how to file the administrative record with the court. If
the local rules are silent on this issue, the DOJ attorney or the AUSA
can address the issue with the parties and the court. For example, it
may be appropriate to file only the index with the court and to provide
the parties with copies of the index and the opportunity to review the
record or to file the parts of the record that the parties will rely
on as grounds for their motions for summary judgment. The U.S. Attorney's
Office in the jurisdiction in which the matter is pending should always
be consulted.
6. Important For Court To Have
The Whole Administrative Record
A court reviews the agency
action based on the whole administrative record before the agency at
the time the decision was made.
The whole administrative
record allows the court to determine whether the agency's decision complied
with the appropriate AP A standard of review.
All agency findings and
conclusion and the basis must appear in the record.
The administrative record
is the agency's evidence that its decision and its decision-making comply
with relevant statutory and regulatory requirements.
A court may remand the matter
where the agency's reasoning for its decision is not contained in the
administrative record.
7. Consequences of Incomplete
Administrative Record
If record is incomplete,
government may be permitted to complete the record but, by doing so,
you also may raise questions about the completeness of the entire record.
If the court decides the
record is not complete, it should remand the matter to the agency. However,
it may allow extra-record discovery, including depositions of agency
personnel, and may allow court testimony of agency personnel.
Generally, although it may
vary from circuit to circuit, courts will allow discovery when a party
has proffered sufficient evidence suggesting:
bad faith;
improprieties may have
influenced the decision-maker; or
agency relied on substantial
materials not included in the record.
A party must make a strong
showing that one of these exceptions applies before a court will allow
extra-record inquiry.
8. Supplementation of the record
When the administrative
record fails to explain the agency's action, effectively frustrating
judicial review, the court may allow the agency to supplement the record
with affidavits or testimony.
Be aware once the government
supplements with affidavits or testimony, opposing party might depose
your witnesses and/or submit additional affidavits or testimony.
Be aware if agency counsel
becomes a potential witness, it may be appropriate to screen the agency
counsel from participation in the litigation. ABA Model Rule of Professional
Responsibility 3.7.
Conclusion
When an agency must defend a final agency action before
a court, it should take great care in preparing the administrative record
for that decision. It is worth the effort and may avoid unnecessary and/or
unfortunate litigation issues later on. This memorandum provides only
internal Department of Justice guidance.
It does not create any rights, substantive or procedural,
which are enforceable at law by any party. No limitations are hereby placed
on otherwise lawful prerogatives of the Department of Justice or any other
federal agency.
Attachments
Environmental law Institute National
Park Service Environmental Compliance Training Course
The Nature of the Administrative Record
By: William M. Cohen. Chief, General Litigation Section,
Environment and Natural Resources Division, US Department of Justice,
Washington, D.C. The views expressed are Mr. Cohen's and not necessarily
views of the Department of Justice. Mr. Cohen wishes to thank Frances
Moneski, a paralegal at the Department of Justice, for her extensive research
on this subject.
I. The Administrative Procedure Act
The APA at 5 U.S.C. 706 states:
To the extent necessary to the decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning or applicability of
the terms of an agency action. The reviewing court shall
(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(D) without observance of procedure required by law;
(E) 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
(F) unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the
whole record or those parts of it cited by a party, and due account
shall be taken of the rule of prejudicial error.
II. The CEQ Regulations
A. The Record of the Agency's Decision (RoD)
The CEO regulations at { 15052 state that “each agency shall prepare
a concise public record of decision” which shall:
(a) State what the decision was.
(b) Identify all alternatives considered by the agency in reaching its
decision, specifying the alternative or alternatives which were considered
to be environmentally preferable. An agency may discuss preferences
among alternatives based on relevant factors including economic and
technical considerations and agency statutory missions. An agency shall
identify and discuss all such factors including any essential considerations
of national policy which were balanced by the agency in making Its decision
and state how those considerations
entered into its decision.
(c) State whether all practicable means to avoid or minimize environmental
harm from the alternative selected have been adopted, and if not, why
they were not. A monitoring and enforcement program shall be adopted
and summarized where applicable for any mitigation.
B. Agency Monitoring
The CEO regulations at § 1505.3 state in part:
Agencies may provide for monitoring to assure that their decisions are
carried out and should do so in important cases. Mitigation (§1505.2(c»
and other conditions established in the environmental impact statement
or during its review and committed as part of the decision shall be implemented
by the lead agency or other appropriate consenting agency. The lead agency
shall:
(a) Include appropriate conditions in grants,
permits or other approvals.
(b) Condition funding of actions on mitigation.
(c) Upon request, inform cooperating or commenting agencies on progress
in carrying out mitigation measures which they have proposed and which
were adopted by the agency making the decision.
(d) Upon request, make available to the public the results of relevant
monitoring.
III. Judicial Review
A. Scope and Standards of Review.
1. Strycker's Bay Neighborhood Council,
Inc. v. Karlen, 444 US 223 (1980).
[O]nce an agency has made a decision subject to NEPA's procedural requirement
the only role for a court is to insure that the agency has considered
the environmental consequences; it cannot “interject itself within
the area of discretion of the executive as to the choice of the action
to be taken.”
Id. at 227,228.
2. Vermont Yankee Nuclear Power Corp. v. NRDC,
435 US 519 (1978).
The fundamental policy questions appropriately resolved in Congress
and in the state legislatures are not subject to reexamination in the
federal courts under the guise of judicial review of agency action.
Time may prove wrong the decision to develop nuclear energy, but it
is Congress or the States within their appropriate agencies which must
eventually make that judgment. In the meantime courts should perform
their appointed function. NEPA does set forth significant substantive
goals for the Nation, but its mandate to the agencies is essentially
procedural It is to insure a fully informed and well- considered decision,
not necessarily a decision the judges of the Court of Appeals or of
this Court would have reached had they been members of the decisionmaking
unit of the agency. Administrative decisions should be set aside in
this context, as in every other, only for substantial procedural or
substantive reasons as mandated by statute, ...not simply because the
court is unhappy with the result reached.
Id. at 558.
3. Baltimore Gas & Elec. Co. v. NRDC,
462 US 87 (1983).
The role of the courts is simply to ensure that the agency has adequately
considered and disclosed the environmental impact of its actions and
that its decision is not arbitrary or capricious It is not our task
to determine what decision, we, as Commissioners, would have reached.
Our only task is to determine whether the Commission has considered
the relevant factors and articulated a rational connection between the
facts found and the choice made.
Id. at 97,105.
4. Marsh v. Oregon Natural Resources Council,
490 U.S.__, 104 LEd.2d 377, 109 S.Ct. 1851 (1989).
[A]s long as the Corps' decision not to supplement the FEISS was not
“arbitrary or capricious,” it should not be set aside.
5. William Cronin v. Dept. of Agriculture,
919 F.2d 439 (7th Cir. 1990).
The United States Court of Appeals for the Seventh Circuit upheld the
District Court's decision refusing to enjoin a timber sale in the Shawnee
National Forest. The court held the Forest Service was justified in
relying on an environmental assessment and tiering to the Forest Plan
EIS in its decision to permit harvesting under the group selection method.
The opinion by Judge Posner makes a strong assertion that review should
be limited to the administrative record and rebukes the District Court
for permitting an evidentiary hearing. The Court stated:
Confining the district court to the record compiled
by the administrative agency rests on practical considerations that
deserve respect. Administrative agencies deal with technical questions,
and it is imprudent that the generalist judges of the federal district
courts and courts of appeals to consider testimonial and documentary
evidence bearing on those questions unless the evidence has first
been presented to and considered by the agency. Trees may seem far
removed from the arcana of administrative determination, but one has
only to glance at the documents submitted in this case to realize
that “silviculture” is in fact a technical field, and not
just one with a dry and forbidding vocabulary.
Therefore only if there is no record and
no feasible method of requiring the agency to compile one in time
to protect the objector's rights — in short, only (to repeat)
if there is any emergency — should an objector be allowed to
present evidence in court showing why the agency acted unlawfully.
And this was not such a case. The forest supervisor made a variety
of interpretive and factual determinations in a substantial written
opinion and even lengthier environmental assessment and he did so
after the plaintiffs had submitted their own voluminous evidentiary
materials to him. It is unclear whether the supervisor would have
granted the objectors an oral hearing if they had requested one, or
even whether they did request one, but these questions are immaterial.
The plaintiffs are unable to show that the paper hearing that the
supervisor did conduct was inadequate to develop the facts necessary
to a sound decision.
Id. at 444.
B. What Constitutes the Agency Record?
1. Haynes v. United States, 891 F.2d 235 (9th
Cir. 1989).
The United States Court of Appeals for the Ninth Circuit affirmed the
decision of the district court upholding a remand opinion by the Secretary
of the Interior regarding Plaintiffs' entitlement to land under the
Alaska Native Claims Settlement Act. The court held that even though
the entire record was not considered by the Secretary in the original
opinion, it was in existence and available to him at the time or the
original decision and it properly formed part of the record for the
remand decision. This decision makes clear that the record which is
in existence before the agency, and not just what the decisionmaker
has read, constitutes the administrative record for judicial review.
The Court stated:
Appellants [propose] …that the administrative
record for review consists of those materials actually used by
the decisionmaker. Since the complete record was not before [the
Secretary] when he made his [original] decision, they believe that
any other materials used in the decision on reconsideration would
amount to an improper ex parte contact.
This argument lacks merit. While it may be true
that the entire record was not before the Secretary for the original
decision, …the administrative record consists of those materials
in the agency record at the time the decision was made. At
the time the decision was made, the agency case file contained all
those documents relied upon in subsequent decisions. Moreover, the
district court acknowledged there were problems with the original
decision. This is why the case was remanded to the Secretary. Any
complaint appellants had with the record before [the Secretary at
the time of his original decision] is now irrelevant because the decision
has been remade based upon the entire record.
The record was in existence at the time the
original decision was made. It was used in both the reconsideration
decision and the remand decision and is therefore the proper record
for judicial review.
ld. at 238
2. Animal Defense Council v. Hodel, 840 F.2d
1432 (9th Cir. 1988).
The Court of Appeals for the Ninth Circuit affirmed a decision of the
District Court upholding the adequacy of an EIS issued by the Secretary
of the Interior regarding the Central Arizona Project and finding that
the Secretary was justified in selecting the least expensive of five
alternatives addressed in the EIS. The Court held that the district
court had properly limited review to the administrative record, stating:
Generally, judicial review of agency action is
limited to the administrative record… This standard is applicable
to review of agency action under NEPA.
However, certain circumstances may justify expanding
review beyond the record or permitting discovery…. The district
court may inquire outside the administrative record when necessary
to explain the agency's action. When such a failure to explain agency
action effectively frustrates judicial review, the court may “obtain
from the agency, either through affidavits or testimony, such additional
explanation of the reasons for the agency decision as may prove necessary.”…
The district court may also inquire outside
of the administrative record “when it appears the agency has
relied on documents or materials not included in the record.”...
In addition, discovery may be permitted if supplementation of the
record is necessary to explain technical terms or complex subject
matter involved in the agency action….
Here, the administrative record was fully
developed and open for public comment prior to the Bureau's decision….
[T]he Council contends that the Bureau ignored or inadequately explored
information presented to it…. Council's allegations are not sufficient
because the administrative record and EIS contain adequate information
to respond to the allegations. The Council makes no showing that the
district court needed to go outside the administrative record to determine
whether the Bureau ignored information or to evaluate the Bureau's
discussion of alternatives…. Courts may also inquire outside
the agency record when plaintiffs make a [strong] showing of agency
bad faith … or [that the agency] acted improperly with respect
to its knowledge.
Id. at 1436, 1437.
C. When Can the Record be Supplemented?
1. Environmental Defense Fund, Inc. v. Costle,
657 F.2d 275 (DC Cir. 1981).
Plaintiff EDF appealed a decision of the district court holding that
the EPA had not acted unreasonably or capriciously in approving certain
water quality standards or in failing to propose new or revised standards
regarding salinity levels in the Colorado River Basin. Among other things,
EDF, in its appeal, complained that the district court improperly had
stricken from the record four litigation affidavits submitted by EDF
in support of its motion for summary judgment. In its opinion upholding
the district court's findings, first reviewed the scope of review. The
court stated:
If the agency action, once explained by the proper
agency official, is not sustainable on the record itself, the proper
judicial approach has been to vacate the action and to remand the
matter back to the agency for further consideration. Camp: v. Pitts,
411 US 138, 143 (1973)….
EDF advocates the creation of an exception
[to the rules governing the scope of review of informal agency action]
which would enable challenging parties to submit affidavits addressing
the merits and propriety of the agency decision. The creation of such
an exception would be contrary to decisions of the Supreme Court and
of this court. There is no occasion for a judicial probe beyond the
confines of a record which affords enough explanation to indicate
whether the agency considered all relevant factors Asarco. Inc.
v. U.S.E.P.A. [616 F.2d 1153, 1160]. H anything, a judicial venture
outside the record can only serve either as background information,
or to determine the presence of the requisite fullness of the reasons
given; and it can never … examine the propriety of the decision
itself. Remand is not necessary, where as here, we find no need for
further explanation of the record.
Id. at 285, 286.
2. Sierra Club v. United States Army Corps of
Eng'rs, 771 F.2d 409 (9th Cir. 1985).
The United States Court of Appeals for the Eighth Circuit vacated the
District Court's decision denying a preliminary injunction enjoining
the use of certain barge fleeting permits issued by the Army Corps of
Engineers. The court held that inasmuch as it could not determine from
the memorandum opinion whether or not the district court actually considered
any of the administrative materials submitted by the plaintiff Sierra
Club, the case would be remanded for an expedited hearing on the merits
of the organization's claims. The court stated:
[B]ecause the confused state of the record makes
meaningful review of the district's court's order impossible, and
because of the lapse of time since Sierra Club initially brought this
matter before the district court, we believe the best course at this
juncture is to vacate the district court's order and remand this action
with directions to hold an expedited and final hearing on the merits
of Sierra Clubs claims…. On remand, the district court must,
of course, determine the merits of Sierra Club's claims by focusing
on the administrative record on which the agency based its decision,
not on some new record compiled initially in the reviewing court.
See, e.g., Camp v. Pitts, 411 US 138, 141-42…. The existing
administrative record may be “supplemented, if necessary, by
affidavits, depositions, or other proof of an explanatory nature.”
Akla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d
347, 357 (8th Cir. 1984), cert. Denied, ____U.S.___, 105 S.Ct. 905,
83 LEd.2d 920 (1985) … Any new materials submitted should, however,
be merely explanatory of the original record and should contain no
new rationalizations for the agency's decision. See Environmental
Defense Fund. Inc. v. Costle, 657 F.2d 275, 285-85(DC Cir. 1981)
Id. at 413.
3. Asarco. Inc. v. EPA, 616 F.2d 1153 (9th
Cir. 1980).
The EPA appealed a decision of the District Court finding an order of
the EP A to be arbitrary and capricious. The Court of Appeals for the
Ninth Circuit agreed that EPA's order was arbitrary and capricious,
but also found that the District Court had gone too far in its consideration
of evidence not in the administrative record. This opinion clearly defines
the extent to which a reviewing court may consider evidence outside
the administrative record. The Court stated:
When a reviewing court considers evidence that
was not before the agency, it inevitably leads the reviewing court
to substitute its judgment for that of the agency. This is true even
if such judicial review is not strictly de novo in the sense that
the court also considers the administrative record. Nevertheless,…
it is both unrealistic and unwise to “straightjacket” the
reviewing court with the administrative record It will often be impossible,
especially when highly technical matters are involved, for the court
to determine whether the agency took into consideration all relevant
factors unless it looks outside the record to determine what matters
the agency should have considered but did not. The court cannot adequately
discharge its duty to engage in a “substantial inquiry”
if it is required to take the agency's word that it considered all
relevant matters….
If the reviewing court finds it necessary
to go outside the administrative record, it should consider evidence
relevant to the substantive merits of the agency action only for background
information … or for the limited purposes of ascertaining whether
the agency considered all the relevant factors or fully explicated
its course of conduct or grounds of decision…. Consideration
of the evidence to determine the correctness or wisdom of the agency'
decision is not permitted, even it the court has also examined the
administrative record. If the court determines that the agency's course
of inquiry was insufficient or inadequate, it should remand the matter
to the agency for further consideration and not compensate for the
agency's dereliction by undertaking its own inquiry into the merits.
Id. at 1160.
4. Sierra Club v. United States Army Corps of
Eng'rs, 772 F.2d 1043 (2d Cir. 1985).
Defendants appealed a decision of the district court finding that defendants
had violated NEPA, the Ocean Water Act and previous court orders with
respect to granting a dredging permit for a highway project. The United
States Court of Appeals for the Second Circuit, on its own review of
the administrative record, found that the record did not support the
Corps' action. The court stated:
The district court here undertook de novo review….
Ordinarily, such de novo review would be an error requiring reversal.
We do not approve such review by a district court whenever it believes
that an administrative record is incomplete. But this abuse of discretion
is not reversible error in the instant case….
In sum, once the district court was satisfied that
there was an illogical change, unexplained in the final report, and
unjustified by the administrative record when read in the context of
the history of these proceedings, the district court should at that
point have remanded the matter to the Corps to revise its FSEIS by including
an explanation. At most the district court should have held a brief
plenary hearing to obtain an explanation. Thus, there was no need for
the protracted evidentiary hearing conducted by the trial court….
Id. at 1052-53.
5. Citizens to Preserve Overton Park v. Volpe,
401 US 402 (1971).
The United States Supreme Court reversed an opinion of the lower courts
holding that there was no basis for determining that the Secretary of
Transportation had exceeded his authority in approving a highway through
a park under a statute forbidding such a highway if a feasible alternative
route existed. The Supreme Court found that the lower courts had erred
in basing their review on litigation affidavits which were not the whole
record and were thus an inadequate basis for review. In addressing the
proper scope of review the Court stated:
[The] administrative record is not, however, before
us. The lower courts based their review on the litigation affidavits
that were presented. These affidavits were merely “post hoc”
rationalizations, Burlington Truck Lines v. United States,
371 US 156, 168-169 (1962), which have traditionally been found to
be an inadequate basis for review…. And they clearly do not constitute
the "whole record" compiled by the agency: the basis for
review required by { 706 of the Administrative Procedure Act….
Thus it is necessary to remand this case to the District Court for
plenary review of the Secretary's decision. That review is to be based
on the full administrative record that was before the Secretary at
the time he made his decision. But since the bare record may not disclose
the factors that were considered or the Secretary's construction of
the evidence it may be necessary for the District Court to require
some explanation in order to determine if the Secretary acted j within
the scope of his authority and if the Secretary's action was justifiable
under the applicable standard. The court may require the administrative
officials who participated in the decision to give testimony explaining
their action. Of course, such inquiry into the mental processes of
administrative decisionmakers is usually to be avoided. United
States v. Morgan, 313 US 409, 422 (1941). And where there are
administrative findings that were made at the same time as the decision
… there must be a strong showing of bad faith or improper behavior
before such inquiry may be made. But here there are no such formal
findings and it may be that the only way there can be effective judicial
review is by examining the decisionmakers themselves. ...
Id. at 419-20.
6. Camp v. Pitts, 411 US 138 (1973).
The United States Supreme Court vacated a decision of the court of appeals
remanding the case back to the district court with instructions to conduct
a trial de novo because the ruling of the Comptroller of the Currency
had not been stated with sufficient clarity to permit judicial review.
The Supreme Court held that the trial procedures outlined by the Court
of Appeals were unwarranted. The Court defined the standard of review
of the Comptroller's ruling, stating:
Unquestionably the Comptroller's action is subject
to judicial review under the Administrative Procedure Act…
The appropriate standard for review was …
whether the Comptroller's adjudication was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,”
as specified in 5 V.S.C. §706(2)(A). In applying that standard,
the focal point for judicial review should be the administrative record
already in existence, not some new record made initially in the reviewing
court….
If, as the Court of Appeals held … there
was such failure to explain administrative action as to frustrate
effective judicial review, the remedy was not to hold de novo hearing
but … to obtain from the agency, either through affidavits or
testimony, such additional explanation of the reasons for the agency
decision as may prove necessary…. [I]n the present case there
was contemporaneous explanation of the agency decision. The explanation
may have been curt, but it surely indicated the determinative reason
for the final action taken… The validity of the Comptroller's
action must, therefore, stand or fall on the propriety of that finding,
judged, of course, by the appropriate standard of review. H that finding
is not sustainable on the administrative record made, then the Comptroller's
decision must be vacated and the matter remanded to him for further
consideration. See SEC v. Chenery Corp., 318 US 80 (1943). It is in
this context that the Court of Appeals should determine whether and
to what extent, and in the light of the administrative record, further
explanation is necessary to a proper assessment of the agency's decision.
Ld At 137-38.
7. County of Suffolk v. Secretary of the Interior,
562 F.2d 1368 (2nd Cir. 1977),
The Court of Appeals for the Second Circuit reversed a decision of the
district court holding that an environmental impact statement prepared
by the Secretary of the Interior in connection with a proposal to accelerate
leasing of the federally owned Outer Continental Shelf to private industry
for oil and gas exploration was inadequate. The Appeals Court held that
the failure of the Secretary to project specific pipeline routes and
to assess their conformity with existing land use regulations did not
render the EIS fatally defective. The Court stated:
Whatever may be the scope of immunity accorded
to internal deliberative memoranda communicating views of agency personnel
and summarizing information found elsewhere in the record, the PDOD
[program decision option document] here contained information germane
to the decision not duplicated elsewhere in the record….
[I]n NEPA cases, … a primary function of the
court is to insure that the information available to the decision-
maker includes an adequate discussion of environmental effects and
alternatives, Natural Resources Defense Council. Inc. v. Callaway,
524 F.2d 79, 90-94 (2d Cir. 1975) … which can sometimes be determined
only by looking outside the administrative record to see what the
agency may have ignored.
A suit under NEPA challenges the adequacy of part
of the administrative record itself-the EIS. Glaring sins of omission
may be evident on the face of the statement, see, e.g., Chelsea
Neighborhood Associations v. United States Postal Service, 516
F.2d 378 (2d Cir. 1975)…. Other defects may become apparent when
the statement is compared with different parts of the administrative
record.9/ See, e.g., Why? Association v. Burns, 372 F. Supp.
223 (D. Conn. 1974), aff'd per curiam, 517 F.2d 1077 (2d Cir. 1975).
Generally, however, allegations that an EIS has neglected to mention
a serious environmental consequence, failed adequately to discuss
some reasonable alternative, or otherwise swept “stubborn problems
or serious criticism … under the rug,” Silva v. Lynn,
[482 F.2d 1282, 1285], raise issues sufficiently important to permit
the introduction of new evidence in the district court, including
expert testimony with respect to technical matters, both in challenges
to sufficiency of an environmental impact statement and in suits attacking
an agency determination that no such statement is necessary….
Here, however, much of the disputed information is contained in the
PDOD, which was not circulated along with the draft EIS at all and
was not made available to plaintiffs until they obtained it by court
order after the final EIS has been published
9/ A district court should identify that
evidence which it finds to be part of the administrative record, since
the failure of the EIS to note problems or data elsewhere in the record
may be probative of the extent to which the EIS has been compiled
in objective good faith. What constitutes part of the administrative
record may be very unclear in a NEPA case, where there is no formal
factfinding process. At the very least, however, the record should
include all relevant studies or data used or published by the agency
compiling the statement.
Id. at 1383-85.
D. Limited Role of the Court in Looking at Conflicting
Scientific Information Under NEPA
1. Marsh v. Oregon Natural Resources Council,
490 U.S.___, 104 L.Ed.2d 377, 109 S.Ct. 1851 (1989).
Because analysis of the relevant documents “requires a high level
of technical expertise,” we must defer to “the informed discretion
of the responsible federal agencies.” ... ('When examining this
kind of scientific information ... a reviewing court must generally
be at its most deferential"), quoting Baltimore Gas & Elec.
Co. v. NRDC, 462 US 87,103 (1983)…. When specialists express
conflicting views, an agency must have discretion to rely on the reasonable
opinions of its own qualified experts even if, as an original matter,
a court might find contrary views more persuasive.
104 L.Ed.2d at 394,395; 109 S.Ct. At 1860,1861.
2. Sierra Club v. United States Dept. of Transp.,
753 F.2d 120 (D.C.Cir. 1985).
When a court considers the sufficiency of an agency's environmental
analysis, “the court is not to rule on the relative merits of competing
scientific opinion.” The agency is entrusted with the responsibility
of considering the various modes of scientific evaluation and theory
and choosing the one appropriate for the given circumstances. The court's
responsibility lies in assuring that the agency bad before it all the
data to make an informed decision that adequately took account of the
important environmental concerns.
Id. at 129.
3. Life of the Land v. Brinegar, 485 F.2d
460 (9th Cir. 1973), cert. denied 416 US 961 (1974).
E. Relief and Remedies.
1. Amoco Production Co. v. Village of Gambell,
480 US 531 (1987). (Alaskan native village sought injunction under §810(a)
of ANILCA, claiming that Secretary of Interior had not complied with
provisions of statute, including the minimizing of adverse impacts on
land).
[T]be bases for injunctive relief are irreparable
injury and inadequacy of legal remedies. In each case, a court must
balance the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested relief.
Although particular regard should be given to the public interest “the
grant of jurisdiction to ensure compliance with a statute hardly suggests
an absolute duty to do so under any and all circumstances, and a federal
judge sitting as chancellor is not mechanically obligated to grant an
injunction for every violation of law [The Court of Appeals] stated
that "irreparable damage is presumed when an agency fails to evaluate
thoroughly the environmental impact of a proposed action.” ...
This presumption is contrary to traditional equitable principles and
has no basis in ANILCA Moreover, the environment can be fully protected
without this presumption. Environmental injury, by its nature, can seldom
be adequately remedied by money damages and " is often permanent
or at least of long duration, i.e., irreparable. If such injury is sufficiently
likely, therefore, the balance of harms will usually favor the issuance
of an injunction to protect the environment Here, however, injury to
subsistence resources from exploration was not at all probable. And
on the other side of the balance of harms was the fact that the oil
company petitioners had committed approximately $70 million to exploration
to be conducted during the summer of 1985 which they would have lost
without chance of recovery had exploration been enjoined.
1d. At 542-545.
2. Weinberger v. Romero-Barcelo. 456 US 305
(1982). (District court finding that Navy discharge of ordnance into
waters off Puerto Rico violated Ocean Water Act. Court's decision not
to enjoin operations pending Navy application for permit from EP A,
reversed by Court of Appeals, but upheld by Supreme Court.)
Rather than requiring a district court to issue an
injunction for any and all statutory violations, the [CWA] permits the
district court to order that relief it considers necessary to secure
prompt compliance with the Act The exercise of equitable discretion,
which must include the ability to deny as well as grant injunctive relief,
can fully protect the range of public interests.
Id. at 317-320.
3. Ohio ex rel. Brown v. Callaway, 497 F.2d
1235 (6th Cir. 1974).
The district court, in formulating the preliminary injunction challenged,
properly considered whether appellant had established the four prerequisites
for the equitable relief requested: (1) that a substantial question
is at issue; (2) that there is a possibility of success on the merits;
(3) that a balancing of injuries to the parties requires preliminary
injunctive relief; and (4) that the public interest would be served
by such preliminary relief.
The district court found that the failure of the
Corps to file adequate [EISs] was a substantial issue and that it was
certain that appellant would succeed on the merits of this limited issue.
It found, however, that appellant had not established that it was likely
to succeed in compelling abandonment of the project.
[The district court went on to perform a benefit/harm
analysis and decided that the contractors already hired and working
would suffer considerable economic harm while continued construction
would not significantly impair the environment. Thus, the district court
allowed the work to continue but prohibited any activities which would
irreparably alter the environment. The court of appeals affirmed the
district court order].
Id. at 1241.
F. Exhaustion of Administrative Remedies through Comments
on Draft EISs.
1. Vermont Yankee Nuclear Power Corp. v. NRDC,
435 US 519 (1978).
Indeed, administrative proceedings should not be a game or a forum to
engage in unjustified obstructionism by making cryptic and obscure references
to matters that “ought to be” considered and then, after failing
to do more than bring the matter to the agency's attention, seeking
to have that agency determination vacated on the ground that the agency
failed to consider matters “forcefully presented.” In fact,
here the agency continually invited further clarification of [plaintiff'
s] contentions....
Administrative proceedings should be set aside ...
only for substantial procedural or substantive reasons as mandated by
statute…. And a single alleged oversight on a peripheral issue,
urged by parties who never fully cooperated or indeed raised the issue
below, must not be made the basis for overturning a decision properly
made after an otherwise exhaustive proceeding.
1d. At 554,558.
NEPA ADMINISTRATIVE RECORD —
CHECKLIST FOR COMPILATION
Per DO-2 “Park Planning,” Reference Manual
“Planners Sourcebook”
(Memorandum to the Director of US Fish and Wildlife Service from the DOI
Office of the Solicitor)
The Administrative Record is
the compilation of files/materials documenting the decision-making process
of the agency. “These are the documents that a judge will review
to determine whether that process and the Service's final decision were
proper.” This memorandum includes guidance provided by the Department
of Justice on compiling an Administrative Record.
The Administrative Record should include:
All documents and materials
that were before or available to persons involved in the decision at
the time the decision was made.
All documents that were
considered or relied upon by persons involved in the decision.
Documents that relate to
both the substance and procedure of making the decision.
All pertinent documents
regardless of whether they favor the decision that was finally made,
favor alternatives other than the final decision, or express criticism
of the final decision. Documents should never be withheld just because
they reflect negatively on the decision that was finally made.
Documents that may end up
later being redacted or removed from the record on the basis of privilege.
The Administrative Record should
not include:
Documents associated with,
but not part of, the decision-making process, such as fax cover sheets.
Various versions of a document
where the differences among the drafts reflect minor editing changes.
Include drafts, however, where hand-written notes or changes from one
version to the next reflect the evolving process.
E-mails and other correspondence
that discuss the agency action generally but do not reflect decision-making
considerations by staff (for example, communications between biologists
whose work may be affected by the outcome of the decision-making process
but who are not involved in the decision itself).
Types of materials to include:
Paper, email (printed out),
computer tapes and discs, microfilm and microfiche, data files, graphs,
charts and decision-specific handwritten notes.
Kinds of information to include:
All documents and materials
prepared, reviewed or received by agency personnel and used by or available
to the decision maker.
Policies, guidelines, directives
and manuals.
Articles and books (be sensitive
to copyright laws governing duplication).
Factual information or data.
Communications the agency
received from other agencies and the public, and any responses to those
communications (electronic communications in hardcopy form; telephone/conference
calls as memos to file).
Documents and materials
that contain information that support or oppose the agency decision.
Exclude documents and materials
not in existence at the time of the (agency) decision.
Drafts circulated for comment
outside the author and the agency, if changes in the drafts reflect
significant input into the decision-making process.
Technical information, sampling
results, survey information, reports or studies.
Decision documents.
Minutes of meetings or transcripts
thereof.
Documentation of telephone
conversations and meetings, including memos and handwritten notes.
NEPA COMPLIANCE DOCUMENTATION CHECKLIST FOR ADMINISTRATIVE
RECORD AND/OR PROJECT FILE
(per DO-12, Conservation Planning, Environmental Impact
Analysis and Decision Making, Handbook 12, Chapter 2, Overview of the
NEPA Process)
Memo to the File
Relevant permit information, copies of permits (ARPA, XXX, etc.)
Categorical Exclusion Form
Environmental Screening Form or Disturbance Form
Finding of No Effect from SHPO
Biological Assessment (under Endangered Species Act, Section 7)
FWS / NMFS Biological Opinion
Concurrence of no effect from FWS, NMFS, and state agency (if applicable)
106 Review
Public meeting notices
All public comments, comment letters, comment sheets, etc., electronic
and paper submittals
IDT or other meeting notes regarding content, issues, alternatives, etc.,
of EA/EIS
Minutes of meetings of public involvement
Letters of public involvement
Telephone records (conversations with federal, state, local agencies,
Indian tribes, interest group or public)
FACA groups — By-laws, charters, all Federal Register notices, all
meeting minutes, all recommendations/decisions/reports
All studies / surveys contracted for to gather data for NEPA decision
making process
All incoming and outgoing correspondence with Federal agencies (ie. USACOE,
FWS, NMFS, EPA), all state and local agencies (SHPO), Indian tribes, interest
groups, general public - electronic and paper
Copy of all NOAs, NOI
Draft EIS
Public review EA
Wetland / Floodplain Statement of Findings (if applicable)
Coastal Zone Consistency Statement (if applicable)
Prime and Unique Farmland statement (if applicable)
Comments generated from review of EA or EIS (including internal comments)
Revised EA (if applicable)
Final EIS
Errata sheets (if applicable)
Finding Of No Significant Impact (signed original)
Record of Decision (signed original)
Issues identified by the IDT or individual members of the IDT and follow-up
documentation on how the issue was resolved
Project Implementation Documentation, for a CE
Approval letter to implementing division
Record of CE
Copy of contract
Copy of cooperative agreement
Specifications
Plans, maps
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