Ninth Circuit Deals With Categorical EIS Exemptions

In Sierra Club v. Bosworth, No. 05-16989 (Dec. 5, 2007), the US Court of Appeals for the Ninth Circuit held that the US Forest Service and Department of Agriculture did not properly determine that all fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres on all national forests in the United States were categorically exempt from the environmental impact statement process.

Tom Caso posts his thoughts on the opinion on The Opening Brief.

Comments

[Carl C. Christensen]

There are some obvious parallels between this case and the rejection of DOT's application of a categorical exemption to the EA/EIS process in the Hawaii Supreme Court's recent Superferry decision. Does the criticism of the Superferry decision that you expressed in your September 18 post also apply to the new Ninth Circuit decision?

[rht]

The post Carl refers to, which contains some criticisms of the HAWSCT's approach to categorical EIS exemptions is here:

http://www.inversecondemnation.com/inversecondemnation/2007/09/superferry-eis-.html

The criticisms don't carry over to the Bosworth decision for a couple of reasons. First, that case was not the application of a categorical exemption to particular facts as was Superferry. Bosworth challenged the validity of the the categorical exemption itself. As I recall, in Superferry, the plaintiffs did not challenge whether HDOT validly established the categorical exemption, just whether under the facts of the case the HDOT erroneously concluded that Superferry qualified.

Second, since as I understand it, under federal law, the standard of review for categorical exemption determinations under NEPA is not the same as the standard HAWSCT applies to chapter 323 categorical exemptions. The parties agreed in Bosworth that the standard of review is "arbitrary and capricious," while in Superferry, HAWSCT applied a "de novo" standard.