Court Upholds NEPA’s Application in the EEZ

Natural Resources Defense Council v. United States Department of the Navy, No. CV-01-07781 (C.D. Cal. Sept. 19, 2002).

Stephanie Showalter, J.D., M.S.E.L.

The U.S. District Court for the Central District of California recently held that, although the United States Navy need not subject its entire Littoral Warfare Advanced Development Program to environmental review, the National Environmental Policy Act does apply “to federal actions which may affect the environment in the [Exclusive Economic Zone].”1

Background
The Navy’s Littoral Warfare Advanced Development Program (LWAD Program), initiated in 1996, oversees the sea testing of experimental anti-submarine technologies. According to the Navy, the “LWAD meets the need for at-sea testing of LASW technologies by providing the science, planning, and logistics support framework to enable cost-effective, LASW experimentation and demonstration.”2 Individuals seeking to test their developmental anti-submarine technologies apply to participate in the LWAD Program. Once selected to participate, the Navy facilitates and supports the sea testing of the participant’s technology. As noted in the opinion, “[t]he purpose of the sea tests is to provide a robust, ‘real world’ environment for the testing and demonstration of anti-submarine warfare technologies that the Navy may want to acquire.”3 The sea tests generally involve the use of active sonar or other tactical acoustic systems. These systems are capable of generating intense sounds which can adversely affect whales, dolphins and other marine life.
Cetaceans primarily rely on a highly developed sense of hearing and many utilize echolocation to find prey and navigate in the underwater realm. High intensity sounds, such as those generated by anti-submarine technologies, can cause loss of hearing, disruption of feeding and migration patterns, and may be linked to mass strandings or beachings. After a mass stranding in the northern Bahamas in 2000, a government task force, led by the National Marine Fisheries Service, concluded that the Navy’s use of a military sonar device was the “most plausible” cause of the stranding.4

The Lawsuit
Concerned for the welfare of cetacean populations and frustrated with the Navy’s lack of compliance with environmental statutes, the Natural Resources Defense Council (NRDC) filed suit seeking to enjoin the Navy from conducting further sea tests until the Navy completed environmental studies as required by the National Environmental Policy Act (NEPA). The NRDC claimed NEPA requires the Navy to evaluate the LWAD Program in a program-wide environmental impact statement. The NRDC also argued that each individual sea test was an agency action subject to environmental review. In addition, the plaintiffs alleged violations of the Endangered Species Act, the Marine Mammal Protection Act, and the Marine Sanctuaries Act.5

The Navy filed a motion for summary judgment on the basis that the plaintiffs did not have standing to challenge the Navy’s program.6 The Navy also argued that the LWAD Program is not a reviewable final agency action and the Navy’s activities in the EEZ are not subject to environmental review under NEPA.

NEPA
NEPA requires all federal agencies to prepare a detailed environmental impact statement for “major federal actions significantly affecting the quality of the human environment.”7 The NRDC argued that the LWAD Program, as a whole, is a major federal action and the Navy is required to prepare an environmental impact statement for its activities under the LWAD Program. The Navy countered by claiming that NEPA does not apply outside of the United States territory and territorial sea and, even if it does, the LWAD Program is not a federal action which can be challenged by the plaintiffs.

The Navy argued that because some of the tests take place in international waters, NEPA does not apply to its activities under the LWAD Program. In general, United States laws do not apply outside US borders absent an express Congressional mandate. In this situation, however, the court found that the presumption against the extraterritorial application of US laws does not apply, because the planning for the LWAD Program occurs entirely within the boundaries of the United States. The federal activity regulated by NEPA is the decision-making process of the agencies, not the underlying project. Because, the decision-making process surrounding the approval of sea tests occurs within the United States, the application of NEPA to the LWAD Program is not extraterritorial.

Most of the sea tests have been conducted on the high seas or in the United States Exclusive Economic Zone (EEZ). The EEZ is a zone extending seaward from the boundary of the territorial sea out to 200 miles. The EEZ, unlike the territorial sea, is not strictly considered part of the territory of the United States, but the United States does have certain “sovereign rights” within the area “for the purposes of exploring, exploiting, conserving and managing natural resources.”8 Furthermore, regarding natural resource conservation and management, “the United States does have substantial, if not exclusive, legislative control of the EEZ.”9 As a result, the court held “that NEPA applies to federal actions which may affect the environment in the EEZ.”10

Having found that NEPA is applicable to federal agency actions in the EEZ, the court then analyzed whether the LWAD program was a federal action subject to NEPA review. Under NEPA implementing regulations, “proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.”11 The court found that the LWAD Program, standing alone, was not subject to NEPA review. Apart from planning and conducting the individual sea tests, the LWAD Program is only engaged in general planning and does not create activities with an impact on the environment. The court held that environmental assessments are not required until the LWAD Program begins to engage in specific planning and commits resources for an actual sea test. Therefore, the Navy may continue to conduct its environmental analysis on a sea test by sea test basis. The Navy’s summary judgment motion was granted with regards to the plaintiffs’ challenge to the LWAD Program.

ESA
The NRDC also challenged the Navy’s failure to consult with other federal agencies pursuant to the Endangered Species Act (ESA). The ESA requires federal agencies to determine, in consultation with the Secretary of the Interior or Commerce, the impact its proposed actions will have on species protected by the Act.12 Consultation may be formal or informal, but if an action “may affect a listed species or critical habitat,” formal consultation is required.13 The Act applies to all federal activities in the United States and on the high seas.14 The Court held that, similar to the environmental impact statement process pursuant to NEPA, the Navy need not consult with the Secretary of Commerce on a program-wide basis. Consultation may proceed on a test by test basis.

Conclusion
The court determined that the Navy’s decision to conduct environmental assessments for each sea test, instead of for the entire LWAD Program, was not arbitrary and capricious. The Navy, however, is still subject to the procedural requirements of NEPA. Before conducting a sea test in the EEZ, the Navy must prepare an environmental impact statement, consult with the proper agency officials as required by the ESA, and comply with all environmental statutes.

Endnotes
1. Natural Resources Defense Council v. United States Department of the Navy, No. CV-01-07781 Slip op. at 21 (C.D. Cal. Sept. 19, 2002).
2. LWAD Description, available at http://www.onr.navy.
mil/oas/projects/lwad/default.htm .
3. NRDC at 2.
4. Id. at 6.
5. The court did not reach the merits of NRDC’s claims regarding these environmental statutes, because Sea Test 02-2, the individual sea test challenged, was cancelled by the Navy.
6. The court held that the NRDC had standing to challenge the Navy’s actions as the plaintiffs “provide[d] evidence that they have observed and enjoyed wildlife in many specific areas where LWAD operations have been conducted to date.” NRDC at 13.
7. 42 U.S.C. § 4332(2)(C) (2002).
8. NRDC at 20 (citing Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 534 (D.C. Cir. 1994)).
9. Id. at 21.
10. Id.
11. 40 C.F.R. § 1502.4(a) (2002).
12. 16 U.S.C. § 1536(a)(2) (2002).
13. 50 C.F.R. § 402.14 (2002).
14. 50 C.F.R. § 402.01 (2002).