Case 2:12-cv-09861-GW-SS Document 136 Filed 02/01/16 Page 170 of 217 Page ID #:5980 EXHIBIT 2 Case 2:16-cv-08390-GW-SS Document 30-5 Filed 12/07/16 Page 171 of 218 Page ID #:1051 170 new information is sufficient to show that the remaining action will ‘affec[t] the quality of the human environment’ in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.” Marsh, 490 U.S. at 374 (quoting 42 U.S.C. § 4332(2)(C)). “When determining whether to issue a supplemental EIS, an agency must ‘apply a rule of reason,’ not supplementing ‘every time new information comes to light’ but continuing to maintain a ‘hard look’ at the impact of agency action.”

Calvert Cliffs, 449 F.2d at 1112. It requires all federal agencies to comply with NEPA’s procedural requirements “to the fullest extent possible.” 42 U.S.C. § 4332. It supplements the authority of agencies under their governing statutes.

In cancelling the lease, the Secretary altered the status quo by: (a) destroying valuable property rights; (b) causing an “irreversible and irretrievable” loss of the oil and gas resources; and (c) denying “present and future generations of Americans” the benefits of the those resources. 42 U.S.C. § 4332(C)(v); 42 U.S.C. § 4331(a); see Cal. Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir. 1961) (“The public does not benefit from resources that remain undeveloped, and the Secretary 33 See also EA DOI-BLM-CO-N040-2015-0023 (Jan. 2015) (EA for the cancellation of leases on the Roan Plateau), available at: http://www.blm.gov/co/st/en/BLM_Information/nepa/gsfo/completed_2015_nepa.html (last visited Sept. 8, 2016).

Motor Vehicle Mfrs., 463 U.S. at 43. II. BLM FAILED TO PROVIDE A CONVINCING STATEMENT OF REASONS TO JUSTIFY ITS DECISION TO FOREGO PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT For “major federal actions significantly affecting the quality of the human environment,” federal agencies must prepare an EIS. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4. A federal action “affects” the environment when it “will or may have an effect” on the environment. 40 C.F.R. § 1508.3 (emphasis added); see also Airport Neighbors Alliance v. U.S., 90 F.3d 426, 429 (10th Cir. 1996) (stating that an EIS is Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 45 of 60 36 required if a “proposed action may ‘significantly affect’ the environment”); Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (accord).

Construction of the proposed Illiana Tollway is a major federal action subject to NEPA’s requirements because of the proposed use of federal funds and necessary federal approvals. 42 U.S.C. § 4332(2)(C). ANSWER: The allegations in Paragraph 14 contain legal conclusions to which no response is required.

6(a), violates NEPA and Ex-Im Bank‘s implementing regulations. See 42 U.S.C. § 4332(2)(C); 12 C.F.R. § 408.6(b); Humane Soc’y of U.S., 520 F. Supp. 2d at 8, 33-34 (―Defendants‘ failure to give any consideration as to whether or not the [action] invoked ‗extraordinary circumstances‘ such that it ‗may have a significant environmental effect‘ violated … NEPA‘s implementing regulations.

In addition to evaluating the level of impacts, NEPA also requires the Corps‘ to justify its proposed RGP by ―study[ing], develop[ing], and describe[ing]‖ a reasonable range of alternatives. 42 U.S.C. § 4332(2)(E). This is the ―heart‖ of the NEPA process.

The Corps deprived the public of a hearing on the SPE Mine To ensure informed and transparent environmental decisionmaking, the Clean Water Act and NEPA require the opportunity for significant public engagement. 33 U.S.C. §§ 1251(e), 1344(a); 42 U.S.C. § 4332(2)(C). Corps regulations establish that a request for a public hearing “shall” be granted “unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interested served by a hearing,” makes such a determination in writing, and communicates his reasons with the requesting party.

An EA must include “brief discussions” of the purpose and need for the proposal, alternatives, and impacts. 42 U.S.C. § 4332(2)(E), 40 C.F.R. § 1508.9.

40 C.F.R. § 1501.4(b) (authorizing EA); see 42 U.S.C. § 4332(2)(C) (requiring EIS only for “major federal action significantly affecting the quality of the human environment”) (emphasis added). CEQ instructs agencies to weigh both the “context” and 12 Even if the Court finds some minor flaw in the NEPA process, the EA and FONSI should not be invalidated based on a technicality.