A tribe of Native Americans
(the Makah) wanted to hunt some whales in a Marine Sanctuary off the coast
of Washington. They petitioned the National Oceanic and Atmospheric
Administration (NOAA) for a permit.
After a bunch of litigation
(see Metcalf v. Daley (214 F.3d
1135 (2000))), NOAA wrote an Environmental Assessment (EA), that resulted
in a Finding of No Significant Impact (FONSI). Environmental groups sued
for an injunction.
The environmental groups
argued that an EA was insufficient, and that NOAA should be required to
prepare an Environmental Impact Statement (EIS).
The National
Environmental Policy Act (NEPA) requires that an EIS be prepared whenever
there is a "major Federal action significantly
affecting the quality of the human environment."
NOAA argued that the
proposed action wasn't significant,
and therefore no EIS was required.
While the number of whales
in the immediate area was very low, there were other pods of the same
kind of whales in other areas. Therefore, NOAA concluded that the ones
the Makah wanted to kill were not significant.
The Trial Court found for
NOAA. The environmental groups appealed.
The Trial Court found that
NOAA had taken the requisite "hard look" at the risks
associated with the whale hunt and that the Court was required to defer
to their decision.
The "hard look"
standard comes from Robertson v. Methow Valley Citizens Council (490 U.S. 332 (1989)).
The Appellate Court reversed.
The Appellate Court looked
to NEPA regulations (40
C.F.R. §§1500-1508), and found that the
term significantly should be considered in light of two
factors, context and intensity.
The Court noted that a
resource may be "locally significant" even if it is not
significant from a regional or national perspective. Therefore the
relatively small resident whale population in the area rendered the contextsignificant.
The Court looked to a list
of ten intensity criteria (40
C.F.R. §1508.27), and found that several were present:
The Court found that there
was controversy, uncertainty, and precedent-setting effects to the proposed actions.
Based on all of that, the
Court found that there was context
and intensity sufficient to
meet the level of significant
in NEPA. Therefore an EIS was required.
