The National Environmental Policy Act's "Non-Discrimination" Exemption
Updated: Jun 27
Written by Matthew DeSafety, Fall 2021 Wildlife Law student under Carol Frampton at Michigan State University College of Law
The National Environmental Policy Act (NEPA) was signed into law in 1970 with the goal of improving environmental protections and oversight as well as increasing transparency between federal environmental agencies and their decision-making process with the public. NEPA pre-dates and applies a far broader set of activities than the North American Model of Wildlife Conservation (North American Model or Model), but shares the principle of science governing wildlife management. The Model proposes that scientific inquiry and analysis should be the means by which decision makers conduct wildlife conservation.
In accordance with the NEPA, when federal agencies decide to undertake “major federal actions” that will affect the environment, the agency must first complete an Environmental Impact Statement (hereinafter EIS), that describes the environmental impact of the action, unavoidable adverse environmental effects, and any available alternatives to the action. EISs help foster government transparency by allowing the public to be fully aware of the “major federal action” that will be undertaken and to engage in public comment on the EIS prior to the commencement of the action. Note that a “major federal action” is an action which will have a significant effect on the environment and is potentially subject to federal control and responsibility. By meeting the extensive requirements of the NEPA, any significant environmental impact brought about by major federal actions can be accounted for, measured, and mitigated prior to the commencement of the actions.
Recent changes to the regulations implementing NEPA stated that NEPA is not applied to federal actions that are non-discretionary, meaning actions that the agency is required to undertake in accordance with federal law. Environmental analysis of non-discretionary actions “would serve no purpose” as the action must be completed by the agency in question, regardless of the findings within an EIS analysis. What is and what is not a “non-discretionary” action is a frequent topic of litigation. Natural Resources Defense Council v. McCarthy, a case from the Tenth Circuit, helps to further define a non-discretionary action that is not subject to NEPA.
Natural Resources Defense Council v. McCarthy
In Natural Resources Defense Council v. McCarthy, a lawsuit was brought to prevent the U.S. Bureau of Land Management (BLM) in Utah from opening a previously closed Wright’s Fishhook Cactus conservation area to off-highway vehicles (OHVs) prior to the BLM undertaking environmental analysis as required by NEPA. In 2006, BLM had previously closed a portion of the Factory Butte, Utah area from OHV traffic due to the adverse impact OHVs had on the endangered Wright’s Fishhook Cactus.
BLM’s authority for temporarily closing and reopening the area for OHV use stems from 43 C.F.R. § 8341.2(a) or the Off-Road Vehicles statute, a part of a federal regulation which dictates special rules regarding the use of OHVs on federal land. The specific provision of §8341.2(a) states that an agency must close wildlife areas to OHV traffic where said traffic will have adverse impacts on the environment. The areas are only to be reopened when the agency officer determines that the danger has been eliminated and measures implemented to prevent recurrence. The parties both agreed that the closing of the conservation area was non-discretionary and did not require NEPA analysis.
In 2019, BLM sent a memorandum to the U.S. Fish and Wildlife Service (FWS) stating that BLM had complied with the requirements of a 2010 biological opinion issued by the Service regarding endangerment of the Fishhook Cactus and sought a concurring opinion from FWS. FWS agreed and concluded that opening the Factory Butte area to OHVs would no longer have a negative environmental impact on the Wright Fishhook Cactus’ habitat. Following the concurrence of FWS, and under the belief that it had complied with the requirements in the Off-Road Vehicles federal regulations regarding the re-opening of previously closed areas to OHV traffic, BLM decided to end the temporary closure of the area to OHVs. BLM did not conduct an environmental impact statement or provide an opportunity for public comment before reopening the area.
Following the reopening of the enclosed area, Plaintiff brought its lawsuit and argued that BLM violated NEPA by opening the Factory Butte area to OHV use prior to conducting an EIS and fully analyzing the possible adverse impacts to the Cactus from OHV traffic. BLM argued that its determination that the enclosure should be reopened, and the actual reopening of the area, were non-discretionary actions, and thus NEPA environmental analyses were not required prior to re-opening the area to OHVs. The District Court agreed with BLM and found that its actions were non-discretionary. Plaintiff then appealed to the Tenth Circuit, which stated that the case would turn on whether the BLM’s decision to lift the temporary closure under 43 C.F.R. § 8341.2(a) was non-discretionary, and thus not subject to the requirements of the NEPA.
The Tenth Circuit agreed with the lower court and held that both the lifting of a temporary closure order and the determination that federal law requirements had been met to lift the temporary closure order under 43 C.F.R. § 8341.2(a) were non-discretionary decisions, and thus not subject to NEPA regulations.  The Court specifically concluded that the use of “shall immediately close the area . . . until the adverse effects are eliminated” in 43 C.F.R. § 8341.2(a) was dispositive in finding that this provision of the statute was non-discretionary. The Court reasoned that under a regular and previously established reading of the terms “shall” and “until”, BLM must only close the area until the negative effects are negated and then are required (“shall is mandatory) to reopen the area. The Court additionally stated that its previous holding in a prior case within jurisdiction that temporary closure of an OHV area was non-discretionary, then logically this can be applied to reopening the area as well.
The Court additionally held that BLM’s agency requirement of formulating measures for protecting the cactus and in deciding that negative environmental effects were mitigated, was not determinative as to whether its subsequent conclusion that the park should be re-opened for OHV was discretionary. Instead, the Court, using prior non-discretionary jurisprudence as a guide, concluded that the Off Road Vehicles statute does not allow BLM to decide on when or how to act and does not charge BLM with creating criteria for when to open the closures (this is dictated by the statute), indicating that BLM’s determination that the area should be opened to OHV enclosures is closer to a required judgment of how to undertake the action, and not born out of autonomous discretion as to whether the action must be taken. Thus, determining that the area should be reopened falls under the “non-discretion exemption”, meaning that conforming with NEPA was not required prior to ending the Factory Butte temporary closure to OHV traffic.
The case represents a gap in NEPA and its ability to facilitate regulatory oversight of agency decisions that have a significant impact on the environment. The exemption prevents NEPA from being applied to an entire category of major federal environmental actions. The non-discretionary exemption has been used in a number of previous cases where NEPA analysis was not conducted for the following environmental concerns: cross border truck crossings at the U.S.-Mexico border and their effect on the environment, the impact of the use of railroad trains on walkable trails, and when considering whether to accept or reject Clean Water Act oil spill response plans. Completion of an EIS and other environmental analysis required by NEPA would have enabled the agency actions in each of the cases, as well as the case at hand, to have additional scientific support, regulatory oversight, and transparency through public comment. This exemption also creates a public policy dilemma where legislators and lobbyists seeking to rein in regulatory oversight and avoid NEPA requirements can draft legislation using terms that courts consider to be non-discretionary (such as “must”, “shall”, and “until”), forcing agencies into non-discretionary actions without further environmental analysis from an EIS. Finally, the non-discretionary exemption sits in tension with the North American Model and its principle that scientific inquiry must be utilized to make informed conservation decisions.
 The National Environmental Policy Act, 42 USC § 4321.  North American Model of Wildlife Conservation, U.S. Fish and Wildlife Service, www.fws.gov/hunting/north-american-model-of-wildlife-conservation.html (last visited Nov. 29, 2021).  Id.  The Legal Framework of the National Environmental Policy Act, Congressional Research Service, https://sgp.fas.org/crs/misc/IF11549.pdf (last visited Nov. 29, 2021).  Id.  Id.; 40 CFR § 1508.18 - Major Federal action.  The Legal Framework, supra note 4.  Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43304 (Jul. 16, 2020).  Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004).  Update to the Regulations, supra note 8.  Natural Resources Defense Council v. McCarthy, 993 F.3d 1243 (2021).  Id.  Id. at 1247-1248. Wright’s Fishhook Cactus, Project Noah, www.projectnoah.org/spottings/7703154/fullscreen (last visited Nov. 29, 2021).  Natural Resources Defense Council v. McCarthy, supra note 11, at 1247.  Off Road Vehicles – Special Rules, 43 C.F.R. § 8341.2(a).  Id.  Natural Resources Defense Council v. McCarthy, supra note 11, at 1248-49.  Id.  Id. at 1249.  Id.  Id.  Id.  Id. at 1250.  Id. at 1250-51.  Factory Butte – Torrey, Utah, AtlasObscura.com, www.atlasobscura.com/places/factory-butte (last visited Nov. 29, 2021).  Natural Resources Defense Council v. McCarthy, supra note 11, at 1251-52.  Id. at 1252.  Id.  Id. at 1249.  Id. at 1254-55.  Id. at 1252-55.  Id. at 1256.  Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43304 (Jul. 16, 2020).  North American Model of Wildlife Conservation, U.S. Fish and Wildlife Service, www.fws.gov/hunting/north-american-model-of-wildlife-conservation.html (last visited Nov. 29, 2021).