A tribe of Native Americans
(the Makah) wanted to hunt some whales off the coast of Washington. Since
the US was a party to the International Convention for the Regulation of
Whaling, they had to get a waiver from the International Whaling
The National Oceanic and
Atmospheric Administration (NOAA) and the National Marine Fisheries
Service (NMFS) requested a waiver.
The National Environmental
Policy Act (NEPA) required that NOAA prepare an Environmental
Under NEPA, since the whales the Makah wanted to hunt
had previously been an endangered species, an EA (or an Environmental
Impact Statement (EIS)) was required.
NOAA prepared a draft EA, and
released it for public comment. However, before it was finalized, NOAA
signed agreements with the IWC and the Makah to resume hunting.
After the agreements were signed, NOAA released a
final EA that included a finding of no significant impact (FONSI).
A number of environmental
groups (led by Metcalf) sued, claiming that NOAA had violated NEPA.
Metcalf argued that since
NOAA didn't wait for a final EA before granting the Makah approval, they
obviously didn't seriously consider the environmental impact of the hunt.
That's a violation of NEPA.
The Trial Court dismissed the
case. Metcalf appealed.
The Appellate Court reversed.
The Appellate Court found
that NOAA's issuance of the EA regarding decision to support tribe's
proposal was untimely.
The Court found that the EA
was nothing more than a rubber stamp on a decision that had already been
The Court noted that NEPA explicitly says that "agencies shall
integrate that NEPA
process with other planning at the earliest possible time
to insure that planning and decisions reflect environmental values, to
avoid delays, and to head off potential conflicts."
See 40 C.F.R. §1501.2.
The Court found that the
proper remedy was to put the project on hold and have NOAA write a new
In a dissent it was argued
that it would be unfair to hold up the process while the EA was being
written, there was no evidence that the EA was slanted or biased, and that
the remedy (writing a new EA) was dumb since no one was suggesting that
there was anything wrong with the analysis in the old EA.
The dissent felt that it was
a waste of money to write an EA before they found out if the IWC was
going to give them permission, so in effect, the EA was written at the
"earliest possible time."
No actual whaling had been
done before the EA was finalized, so the Makah hadn't jumped the gun. If
the EA had come out the other way, then the US could have refused to give
the final permits even though the IWC had approved the hunt.
NOAA went back and rewrote the
EA. In a followup lawsuit, the Court found that an EA was insufficient
and that NOAA was required to write a comprehensive EIS instead.
That case was National
Parks and Conservation Assn. v. Babbitt
(241 F.3d 722 (9th Cir. 2001)).