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NEPA Case Law Review

Pam Hudson, Fred Wagner, and Michael Smith

Monday, May 20
Versailles Room
11:15 AM

About the Session

This session will review substantive National Environmental Policy Act (NEPA) cases issued by United States Courts of Appeals in 2018. The implications of the decisions and relevance to NEPA practitioners will be explained. This session will summarize the more detailed paper prepared for this session. The paper briefly explains, with an emphasis on the substantive NEPA findings, each opinion issued by the U.S. Court of Appeals circuits. The paper identifies statistics regarding the NEPA appellate opinions, such as ten-year record of NEPA cases, organized by circuit, and by year. The paper also identifies the agencies involved in each case, and presents statistics relevant to the agencies; the paper further identifies the prevailing ratio of federal agencies, including by agency and by document type (categorical exclusion, environmental assessment, environmental impact statement). The paper analyzes the trends in the court opinions involving NEPA for 2017, with an emphasis on substantive NEPA practice, and by grouping of the cases. Finally, each court opinion is paraphrased and organized in a manner easy to read for practitioners to find the court’s ruling. Appellate opinions are grouped and analyzed by agency. Past trends include challenges to purpose and need, alternatives considered, public comment, scientific impact assessment methodologies, GHG emissions and climate change impact assessment, incomplete or unavailable information, determination of significance, segmentation, duty to supplement, connected actions, federal actions, cumulative impact assessment, mitigation, monitoring and adaptive management. 

About the Presenters

Pam Hudson, Esq., U.S. Navy

P.E. Hudson, Esq. is the Counsel, Department of the Navy Office of General Counsel in Naval Base Ventura County, California. The focus of her practice is environmental law and planning, and specifically NEPA; she also develops and teaches courses involving NEPA, environmental planning and impact analysis, and environmental law, with a special emphasis on coastal and ocean resources, to federal employees. She has published 12 federal agency, academic, and peer-reviewed articles on environmental planning and impact assessment since 2013. She has 15 years of NEPA experience, and was the informal Chair of the NAEP CEQ Pilot Project, Best Practice Principles for Environmental Assessments, which was lauded by the CEQ. She also received the NAEP President's Service Award in 2015.

Fred Wagner, Venable LLC

Biography pending

Michael Smith, Ph.D., GEI Consultants

Dr. Smith is a leading National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) compliance practitioner with over 20 years of experience in environmental impact assessment, project and program management, technical analysis, policy development, and training/education for a wide range of public and private sector clients. He is currently a Senior Environmental Practice Leader with GEI Consultants in Sacramento, CA, one of North America’s leading geotechnical, environmental, water resources, and ecological science and engineering firms. GEI has provided consulting and engineering services on over 35,000 projects in all 50 U.S. states and internationally in over 20 countries. He has managed and provided compliance review for some of North America’s largest, most complex, and highly controversial projects, including major energy and transportation infrastructure projects, regulation of genetically engineered plants, commercial space transportation operations, and approval of new fuel economy standards for all vehicles operated in the U.S.

Technical areas of expertise include cumulative impact analysis; GHG emissions and climate change analysis; socioeconomics and environmental justice analysis; and designing strategies for streamlining EIA processes and reviews. He frequently provides training and strategic advice for NEPA, CEQA, and related environmental compliance requirements as a faculty member at the UC Davis Extension Planning and Sustainability Program, the UCLA Extension Sustainability Program, the NEPA Certificate Program at the Quinney College of Natural Resources at Utah State University, and as a Senior Consultant at The Shipley Group. He is a past recipient of a Science & Technology Policy Fellowship with the American Association for the Advancement of Science (AAAS) at EPA’s Office of Water and Office of Federal Activities in Washington, DC. From 1998 to 2007, he was an Associate Professor of Environmental and Natural Resources Sciences at Humboldt State University in northern California. . He holds a Ph.D. in Environmental and Natural Resources Sociology from Utah State University, an M.A. in Geography from the University of Wyoming, and a B.A. in Environmental Studies from the University of California, Santa Cruz.