The Legal Impact of EPA’s Controversial Proposal

This afternoon, Messrs. Pinsky and Yamamoto submitted the following additional comments about EPA’s “anti-environment” proposal:

“As explained in our previous comments, there is a wealth of scientific evidence that compels the conclusion that the proposed rule should be rejected as bad for the environment. In addition, the adoption of the proposed rule would constitute arbitrary and capricious action violating the Administrative Procedure Act. Finally, even assuming arguendo that a non-frivolous scientific argument in favor of the proposed regulation could be made, the National Environmental Policy Act requires the preparation of a proper Environmental Impact Statement before the proposed regulation can be adopted.

“As the agency necessarily concedes, “EPA has responsibility to prepare its own NEPA documents for compliance ”. Significantly, EPA regulations also expressly recognize that NEPA compliance is necessary if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 C.F.R. Sect. 6.204(b)(8), (stating that, in such circumstances, a categorical NEPA exclusion is not applicable).

“In the present case, EPA must prepare a thorough EIS before it adopts the proposed regulation.”

These comments highlight the importance of public participation in EPA proceedings. Mr. Yamamoto explains that, “even if one ignores the scientific and political issues involved,  the tremendous public outcry alone would require preparation of an Environmental Impact Statement.”  Ideally, “the EIS process allows the public to fully consider, analyze and even ‘vent’ about the environmental risks posed by major federal actions”