Case 1:20-cv-02715 Document 1 Filed 09/23/20 Page 1 of 33
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` UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civ. Action No. 20-cv-2715
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`IOWA CITIZENS FOR
`COMMUNITY IMPROVEMENT
`2001 Forest Avenue
`Des Moines, Iowa 50311,
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`ANIMAL LEGAL DEFENSE FUND
`525 East Cotati Avenue
`Cotati, California 94931,
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`ASSOCIATION OF IRRITATED RESIDENTS
`29389 Fresno Avenue
`Shafter, California 93263,
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`INSTITUTE FOR AGRICULTURE
`AND TRADE POLICY
`2105 First Avenue South
`Minneapolis, Minnesota 55404,
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`WATERKEEPER ALLIANCE, INC.
`180 Maiden Lane, Suite 603
`New York, New York 10038, and
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`WATERKEEPERS CHESAPEAKE
`P.O. Box 11075
`Takoma Park, Maryland 20913,
`
`Plaintiffs,
`
`v.
`
`COUNCIL ON ENVIRONMENTAL QUALITY
`1650 Pennsylvania Avenue NW
`Washington, D.C. 20502,
`
`MARY NEUMAYR, Chairperson,
`Council on Environmental Quality
`1650 Pennsylvania Avenue NW
`Washington, D.C. 20502,
`
`Defendants.
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`Case 1:20-cv-02715 Document 1 Filed 09/23/20 Page 2 of 33
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`COMPLAINT
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`This is an action for declaratory judgment and injunctive relief, challenging
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`1.
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`provisions of Defendant Council on Environmental Quality’s (“CEQ”) Final Rule, 85 Fed. Reg.
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`43304 (July 16, 2020), that explicitly or effectively exempt federal funding of concentrated
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`animal feeding operations and slaughterhouses from National Environmental Policy Act
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`(“NEPA”) review.
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`2.
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`Concentrated animal feeding operations (“CAFOs”) are facilities that confine
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`massive numbers of animals for the purposes of producing meat, dairy, and egg products. A
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`single CAFO can confine in one location up to thousands of cows, thousands of pigs, tens of
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`thousands of turkeys, or millions of chickens. To put these sizes in perspective, a 200-cow dairy
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`CAFO generates around the same amount of sewage waste as a 96,000-person city.
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`3.
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`CAFOs are often owned, run, or controlled by large corporations. In each major
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`livestock sector, a handful of corporations control more than half of all livestock production.
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`4.
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`CAFOs and the slaughterhouses they supply (collectively, “the CAFO industry”),
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`which continue to expand throughout the United States, cause and exacerbate climate change and
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`harm rural community and economic health, drinking water quality and quantity, air quality,
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`endangered species, the confined animals themselves, and other aspects of the human
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`environment. They also harm quality of life and depress property values of those living in close
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`proximity to these facilities.
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`5.
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`The CAFO industry typically propagates in a concentrated fashion. A new
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`slaughterhouse inserts itself into a community and, in short order, new CAFOs will sprout up and
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`existing CAFOs will expand to supply animals for the slaughterhouse. The concentration of
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`Case 1:20-cv-02715 Document 1 Filed 09/23/20 Page 3 of 33
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`CAFO industry facilities in small geographic areas intensifies their effects on certain
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`communities, watersheds, and ecosystems.
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`6.
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`The federal government, through various lending programs administered by the
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`Farm Service Agency (“FSA”), Small Business Administration (“SBA”), U.S. Department of
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`Housing and Urban Development, and others, financially supports the CAFO industry.
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`7.
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`Until CEQ’s 2020 Final Rule, federal agencies had to comply with NEPA to
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`assess the impact of federal funding for the CAFO industry. NEPA analyses—which would take
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`place before loans or loan guarantees were approved—serve two key purposes in the CAFO
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`industry context. First, they can provide a governmental record of the harms emanating from
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`industrial animal feeding operations and slaughterhouses, which have long been established as
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`having serious effects on communities and the environment. Second, they provide neighbors,
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`nearby farmers, and advocacy groups—like the Plaintiffs here—with notice of the planned
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`development of new facilities or expansion of existing ones, as well as information about their
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`risks, enabling the public to provide input and raise concerns before the federal government
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`authorizes the use of public money. Before the Final Rule, community advocates were able to
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`seek judicial review to redress their injuries when federal agencies failed to afford them the
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`rights to which they are entitled under NEPA and the Administrative Procedure Act (“APA”).
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`8.
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`CEQ’s new regulations both explicitly and effectively remove that process of
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`analysis, notice, and feedback for the CAFO industry. Rather than presuming that CAFOs
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`warrant a NEPA analysis, as CEQ did under its previous regulations, it now assumes these
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`facilities have no environmental impact and exempts them entirely from NEPA. CEQ has also
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`improperly cabined the scope, depth, and substance of NEPA review of CAFO- and
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`slaughterhouse-related decisions in ways that ignore the CAFO industry’s most substantial
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`impacts and undermine the NEPA review process. CEQ further attempts to restrict judicial
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`review so that local residents are forced to endure the destruction of their communities without
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`any legal redress under NEPA.
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`9.
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`CEQ’s decision to give yet another free pass to this industry violates both NEPA
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`and the APA. CEQ acted arbitrarily and capriciously, contrary to law, and not in accordance with
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`law in enacting the Final Rule. Further, the Final Rule exceeds CEQ’s statutory authority.
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`10.
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`Plaintiffs request that the Court declare illegal, vacate, and issue an injunction
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`requiring Defendants to withdraw, the portions of the rule that unlawfully restrict NEPA review
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`of federal funding for the CAFO industry. Such relief will ensure the proper analysis of, public
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`notice of, and input on the currently uninhibited and nontransparent flow of federal funds to the
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`CAFO industry.
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`JURISDICTION AND VENUE
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`11.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
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`question), 28 U.S.C. § 1361 (mandamus), 28 U.S.C. §§ 2201-02 (declaratory judgment and
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`further relief), and the APA, 5 U.S.C. §§ 701-06 (declaratory and injunctive relief).
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`12.
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`Venue is proper in this Court under 28 U.S.C. § 1391(e) because Defendants are
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`federal agencies headquartered in the District of Columbia, and because the agency action that
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`forms the basis of this Complaint took place in the District of Columbia.
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`PARTIES
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`13.
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`Plaintiff Iowa Citizens for Community Improvement (“CCI”) is a
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`membership-based, statewide Iowa nonprofit organization that works to enable Iowans from all
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`walks of life—urban and rural, young and old, immigrants and lifelong Iowans—to make change
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`in their communities by raising their voices and undertaking grassroots advocacy. CCI has
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`approximately 5,100 dues-paying members around the state, in addition to another 17,000
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`supporters and activists who sign up to receive CCI emails, take action online, attend meetings,
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`sign petitions, and engage in other forms of activism with and for CCI. Many of CCI’s members
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`live near, recreate near, and/or work at agricultural facilities. CCI’s organizational priorities
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`include fighting against factory farms and protecting Iowa’s clean water and environment, as
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`well as advancing worker justice, racial justice, and immigrants’ rights. CCI works to organize
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`workers and has specifically worked in the past to organize in pig production facilities. In
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`carrying out its mission, CCI has inquired with FSA—including by visiting in person at FSA
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`offices—about the extent to which FSA-guaranteed loans are used for medium- and large-sized
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`CAFOs and how the public can stay informed about FSA proposals to supply guaranteed loans to
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`CAFOs. CCI members also alter their life choices—including whether to kayak and swim in
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`certain water bodies—based on their knowledge of the existence and operation of nearby
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`CAFOs. They obtain this information and attempt to influence CAFO funding decisions through
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`the FSA and SBA NEPA review processes. In short, at a time when the Iowa legislature has
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`underfunded the Iowa Department of Natural Resources, resulting in insufficient staffing to
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`investigate and respond to citizen complaints of manure spills or dumping, the notice and
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`information that FSA and SBA provide in the course of preparing NEPA environmental review
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`documents for new or expanding CAFOs in Iowa has become ever more important to CCI’s
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`mission and members.
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`14.
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`Plaintiff Animal Legal Defense Fund (“ALDF”) is a national nonprofit
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`organization founded in 1979 in Cotati, California. ALDF’s mission is to protect the lives and
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`advance the interests of animals through the legal system. Advocating for effective oversight and
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`regulation of CAFO and slaughterhouse development, expansion, and pollution across the United
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`States is one of ALDF’s central goals, which it achieves by filing lawsuits, administrative
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`comments, and rulemaking petitions to increase legal protections for animals; by supporting
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`strong animal protection legislation; and by fighting against legislation, like state “Ag Gag”
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`laws, that is harmful to animals and communities surrounding CAFOs and slaughterhouses.
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`Through these efforts, ALDF seeks to ensure transparency in the CAFO industry, which is
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`paramount to its ability to protect farmed animals and ALDF members from the CAFO
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`industry’s immensely harmful effects. ALDF conducts this work on behalf of itself and more
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`than 300,000 members and supporters throughout the United States, many of whom live near,
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`recreate near, and closely monitor CAFOs and slaughterhouses in their communities.
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`15.
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`Plaintiff Association of Irritated Residents (“AIR”) is a membership-based
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`California nonprofit corporation whose mission is to advocate for clean air and environmental
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`health in California’s San Joaquin Valley (Fresno, Kern, Kings, Stanislaus, and Tulare Counties)
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`on behalf of its several dozen members, who primarily reside in the Valley’s under-resourced
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`communities. AIR’s members include people with difficulty breathing who are susceptible to air
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`pollution in the Valley, especially particulate matter and ammonia released by dairy and chicken
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`CAFOs. AIR has participated in the San Joaquin Valley Air Pollution Control District, California
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`Air Resources Board, and U.S. Environmental Protection Agency (“EPA”) proceedings to
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`implement the Clean Air Act and improve air quality in the Valley. Since 2008, AIR has had a
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`representative on the Environmental Justice Advisory Committee for California’s greenhouse gas
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`reduction plan. AIR members have also participated for many years on the Steering Committee
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`for the Central Valley Air Quality Coalition. In addition, AIR has pushed for stronger regulations
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`on CAFOs to reduce air pollutant emissions. In 2001, AIR successfully sued EPA to force the
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`agency to disapprove California’s Title V operating permit programs because California
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`exempted agricultural equipment from clean air permits. AIR then participated in the grassroots
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`coalition that successfully passed a corresponding California law. When the San Joaquin Valley
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`Air Pollution Control District refused to require new and modified confined animal facilities to
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`obtain permits and purchase offsets, as required by its permitting rules that EPA approved as part
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`of the State Implementation Plan, AIR filed three citizen suits to enforce it. AIR also continually
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`monitors local CAFO operations for compliance with pertinent local, state, and federal rules. It
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`has never passed on the chance to submit comments on either individual CAFO permit
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`applications in the Valley or larger, programmatic actions regarding CAFOs.
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`16.
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`Plaintiff Institute for Agriculture and Trade Policy (“IATP”) is a 501(c)(3)
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`nonprofit organization headquartered in Minneapolis, Minnesota. Established in 1986, IATP
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`works locally and globally at the intersection of policy and practice to ensure fair and sustainable
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`food, farm, and trade systems. IATP achieves its mission by, among other things, submitting
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`administrative comments and petitions, authoring reports, advocating before Congress, and
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`directly educating the public through podcasts, webinars, and infographics in support of more
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`democratic and economically just agricultural policies. IATP specifically focuses on combating
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`climate change, holding corporations accountable for their greenhouse gas footprints, and
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`protecting rural economies, independent family farmers, and ecosystems from the harms of
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`industrial livestock facilities. For example, IATP has conducted research and analysis on the
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`greenhouse gas emissions of the CAFO model of animal production, which it incorporated into
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`its publicly available reports, commentaries, and fact sheets. IATP has also worked to limit or
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`eliminate the public subsidies and loans in proposed Farm Bills that support new or expanded
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`CAFOs. IATP also seeks to halt, or at least influence, the subsidization of new CAFO industry
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`facilities by submitting comments during the NEPA environmental review process. In the past,
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`IATP has commented on Environmental Assessments for Minnesota CAFOs on its own behalf.
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`17.
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`Plaintiff Waterkeeper Alliance, Inc. (“Waterkeeper Alliance”) is a not-for-profit
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`corporation headquartered in New York, New York. Waterkeeper Alliance is a global movement
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`of on-the-water advocates who patrol and protect over 2.7 million square miles of rivers,
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`streams, and coastlines in North and South America, Europe, Australia, Asia, and Africa.
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`Waterkeeper Alliance seeks to protect water quality in every major watershed around the world,
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`and to restore and maintain all waterways as drinkable, fishable, and swimmable consistent with
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`the goals of the federal Clean Water Act and other laws. Waterkeeper Alliance works toward this
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`vision through direct advocacy and through the grassroots advocacy of its members and affiliate
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`organizations, which Waterkeeper Alliance connects and supports to provide a voice for
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`waterways and their communities worldwide. Waterkeeper Alliance routinely comments on
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`proposed federal and state regulations and permits affecting regulated pollution sources;
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`advocates to federal, state, and local officials; and conducts educational outreach, training, and
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`coordinated advocacy efforts with and for its members. Additionally, Waterkeeper has engaged
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`in key litigation and other education, outreach, and advocacy related to the CAFO industry as
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`part of its “Pure Farms, Pure Waters” campaign for many years. For example, Waterkeeper has
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`participated in major litigation involving federal regulation of CAFOs, including as a party in
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`litigation challenging both of EPA’s most recent major revisions to its CAFO regulations.
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`18.
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`Plaintiff Waterkeepers Chesapeake is a 501(c)(3) nonprofit watershed advocacy
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`organization headquartered in Takoma Park, Maryland. It operates as a coalition of 17
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`independent Waterkeeper programs working throughout the Chesapeake and Delmarva Coastal
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`Bays Watersheds. The coalition actively works to protect and improve the health of the
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`Chesapeake Bay and the waterways in the region, including Maryland’s Eastern Shore—the
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`predominate location of chicken CAFOs in the state. Waterkeepers Chesapeake aims to amplify
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`the voices of the individual Waterkeeper groups and their members and to work together on
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`campaigns to stop pollution throughout the region that affects the Chesapeake, including
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`pollution released from the many “broiler” chicken houses and other CAFOs that dot the
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`mid-Atlantic region. Its efforts include keeping its Waterkeeper programs’ members and
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`communities informed about environmental issues that affect them, including the construction of
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`new or expansion of existing CAFOs and slaughterhouses in the watershed. To that end,
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`Waterkeepers Chesapeake posts on its website information about algal blooms, waterborne
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`illnesses, and nutrient pollution, as well as new CAFOs and slaughterhouses in the region and
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`their impacts on local waterbodies—particularly impaired waterbodies. Waterkeepers
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`Chesapeake posts this information publicly and disseminates the information to its coalition’s
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`members so that they can attend hearings and submit public comments on proposals or permits
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`that affect or concern them. Waterkeepers Chesapeake further encourages and assists its
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`members in participating in these public processes and joins member organizations in opposing
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`new CAFO industry construction and expansion in their watersheds. Waterkeepers Chesapeake
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`also works to improve state and federal regulation of the CAFO industry through legislative,
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`regulatory, and permitting efforts and by assisting with studies on the environmental impacts of
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`CAFOs. Waterkeepers Chesapeake established and leads the “Fair Farms Movement” to bring
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`together sustainable farmers, consumers, and businesses to provide an alternative to the industrial
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`agriculture system.
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`19.
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`Plaintiff organizations rely on the public notice and information generated during
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`NEPA review to carry out their missions. For several Plaintiffs, public notice and access to
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`environmental information are an important means of identifying opportunities to influence
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`government actions and policies at the federal, state, and local levels to better protect Plaintiffs’
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`members and their communities from incoming and expanding CAFOs and slaughterhouses.
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`Members of Plaintiff organizations also personally rely on the public notice and information
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`generated during NEPA review to inform, organize, advocate around, and protect themselves
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`against the rampant expansion of the CAFO industry in their communities.
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`20.
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`As just some examples, Iowa Citizens for Community Improvement, Association
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`of Irritated Residents, and Waterkeepers Chesapeake use information generated through NEPA
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`review when they advocate on behalf of their members and local communities (as well as allow
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`members advocate for themselves) before government decision-makers at the federal, state, and
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`local levels. Plaintiffs also gather the information arising from NEPA review and distribute it to
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`their members so that the members may make better decisions about where they live, recreate,
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`and work; the NEPA-generated information is particularly key at the county level when
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`advocating before planning commissions and boards of zoning appeals as they weigh whether to
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`grant a variance or building permit to a new or expanding CAFO or slaughterhouse. For
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`example, Plaintiff Waterkeepers Chesapeake uses information from Environmental Assessments
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`to evaluate nutrient management plans to better understand potential concerns associated with
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`site specific locations and application rates, and to plan water quality monitoring initiatives to
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`evaluate impacts of nutrient enrichment to nearby and downstream waterbodies. Plaintiff
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`Institute for Agriculture and Trade Policy utilizes the information to inform its research and
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`analysis on the greenhouse gas emissions of the CAFO model of animal production, and
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`specifically to limit or eliminate public subsidies and loans through Farm Bills that support new
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`or expanded CAFOs. Plaintiff Animal Legal Defense Fund likewise utilizes information about
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`the environmental impacts of CAFOs and slaughterhouses to protect their individual members
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`and advance their members’ and organizational interests through legal advocacy.
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`21.
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`To protect their interests in the continued administration of NEPA across the
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`federal government, Plaintiffs submitted comments on CEQ’s Advanced Notice of Proposed
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`Rulemaking and Notice of Proposed Rulemaking opposing CEQ’s desired and potential changes.
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`Plaintiffs’ comments on the Proposed Rule included concerns focused specifically on CEQ’s
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`proposal to exempt all federal funding for the CAFO industry from NEPA review and the other
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`proposed changes discussed herein that will especially harm communities affected by the CAFO
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`industry.
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`22.
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`As a result of Defendants’ actions, Plaintiffs and their members and supporters
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`have been and will continue to be injured by CEQ’s Final Rule, which deprives them of
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`information that federal law gives them the right to know. NEPA requires agencies to provide
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`public notice of NEPA-related hearings, public meetings, and the availability of environmental
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`documents so as to inform those persons who may be interested or affected. By carving out the
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`public’s access to this information in the context of federal funding for the CAFO industry, CEQ
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`hinders Plaintiffs’ abilities to carry out their missions, to educate their members and the public,
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`and to advocate for government policies that limit the public’s exposure to the harmful effects of
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`the expansion of the CAFO industry.
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`23.
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`CEQ’s action further injures Plaintiffs by depriving them of notice of new and
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`expanding CAFOs and slaughterhouses. Each Plaintiff organization relies on alerts from rural
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`residents, particularly regarding the potential for increased water and air pollution, as the first
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`indicators that a new CAFO or slaughterhouse is being developed. Were CEQ to continue
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`requiring notice of proposed funding for individual CAFOs and slaughterhouses, Plaintiffs and
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`their members would use that information in advocacy to protect their members, their members’
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`communities, and the environment, and would submit public comments when necessary.
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`24. Members of each membership-based Plaintiff organization are also harmed by
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`CEQ’s decision to exempt or otherwise relax the standards applicable to federal funding of the
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`CAFO industry from NEPA review. They reside, recreate, or own businesses or property in
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`localities in which federal agencies have approved and provided federal funding—and continue
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`to approve and provide federal funding—for the development, creation, and expansion of
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`CAFOs and slaughterhouses. The intrusion of the CAFO industry into the members’
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`communities has had pervasive and persistent deleterious effects. Plaintiffs’ members are deeply
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`concerned about the operation and expansion of the CAFO industry in their communities and are
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`harmed by the effects it has on their economic vitality, air quality, water quality and quantity,
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`community health, and animal and ecosystem health.
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`25.
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`These injuries are actual, concrete, and irreparable. Plaintiffs and their members
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`and supporters will continue to suffer harm as a result of CEQ’s action unless and until this
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`Court provides the relief requested in this Complaint. An order vacating the illegal provisions of
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`CEQ’s rules and mandating compliance with the APA and NEPA by a date certain would redress
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`Plaintiffs’ injuries. Such relief would restore requirements that force FSA, SBA, and other
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`agencies that subsidize the CAFO industry to provide Plaintiffs and their members the
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`information and participation opportunities needed to protect themselves from CAFO industry
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`effects, as well as meaningful agency and judicial review of agency decisions supporting the
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`CAFO industry.
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`26.
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`Defendant Council on Environmental Quality (“CEQ”) is an executive agency
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`within the Office of the President. CEQ is the federal agency responsible for overseeing NEPA
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`implementation and compliance across the federal government.
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`27.
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`Defendant Mary B. Neumayr is the Chairperson of CEQ and is sued in her
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`official capacity. As the Chairperson, she has the responsibility of ensuring that CEQ acts in
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`accordance with applicable laws and regulations, and she is ultimately responsible for the
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`promulgation of CEQ’s revised NEPA regulations.
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`LEGAL AND FACTUAL BACKGROUND
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`I.
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`The National Environmental Policy Act Mandates that CEQ Promulgate
`Regulations Prioritizing and Promoting the Protection of the Environment.
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`28.
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`Congress enacted NEPA with the purpose to “promote efforts which will prevent
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`or eliminate damage to the environment and biosphere and stimulate the health and welfare of
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`man.” 42 U.S.C. § 4321.
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`29.
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`NEPA created a national policy of environmental consideration and conservation
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`across the federal government. Its language is clear: Congress, recognizing “the profound impact
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`of man’s activity on . . . the natural environment,” as well as “the critical importance of restoring
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`and maintaining environmental quality,” intended for the federal government to “use all
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`practicable means and measures, including financial and technical assistance,” to ensure that
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`people and the natural environment can “exist in productive harmony.” Id. § 4331(a). “[T]o carry
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`out the policy set forth in [NEPA],” Congress made explicit that “it is the continuing
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`responsibility of the Federal Government” to, among other things: act as trustee of the
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`environment for future generations, avoid environmental degradation, and preserve a diverse
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`environment. Id. § 4331(b)(1), (3), (4). Congress also recognized that “each person should enjoy
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`a healthful environment.” Id. § 4331(c).
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`30.
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`These principles—as encapsulated in the declared policy of the legislative branch
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`of the United States government—must underlie all government actions under NEPA. Indeed,
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`Congress expressly “authorizes and directs that, to the fullest extent possible . . . the policies,
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`regulations, and public laws of the United States shall be interpreted and administered in
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`accordance with the policies set forth in [NEPA].” Id. § 4332 (emphasis added).
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`31.
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`NEPA’s requirements are “supplementary” to agencies’ own authority to consider
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`and protect the environment. Id. § 4335.
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`32.
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`NEPA created CEQ specifically to, among other things, “formulate and
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`recommend national policies to promote the improvement of the quality of the environment.” Id.
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`§ 4342; see also id. § 4344(4).
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`33.
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`The FSA Handbook for “Environmental Quality Programs” states that all federal
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`agencies, including FSA, must comply with and implement both NEPA and CEQ’s regulations.
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`See FSA Handbook 1-EQ (rev. 3) Amend. 1 at ¶ 2C.
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`34.
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`NEPA applies to “major federal actions significantly affecting the human
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`environment.” 42 U.S.C. § 4332(2)(C).
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`35.
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`The agency proposing such action must make a “detailed statement” on the
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`“environmental impact of the proposed action,” “any adverse environmental effects which
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`cannot be avoided should the proposal be implemented,” “alternatives to the proposed action,”
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`and “any irreversible and irretrievable commitments of resources which would be involved in the
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`proposed action should it be implemented.” Id. § 4332(2)(C)(i)-(v).
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`36.
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`Prior to making such statement, the responsible official “shall” consult with “any
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`Federal agency which has jurisdiction by law or special expertise with respect to any
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`environmental impact involved.” Id. § 4332(2)(C). “[T]he comments and views of the
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`appropriate Federal, State, and local agencies, which are authorized to develop and enforce
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`environmental standards, shall be made available . . . to the public . . . and shall accompany the
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`proposal though the existing agency review processes.” Id.
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`37.
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`Agencies must perform NEPA’s environmental review before undertaking any
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`proposed action. See id.
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`38.
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`NEPA requires not merely public notice, but public participation in the evaluation
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`of the environmental consequences of a major federal action. See id.
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`II.
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`CEQ’s Prior NEPA Regulations Constitute Four Decades of Environmental
`Policy Reflecting NEPA’s Mandate and Promoting Responsible Environmental
`Review by Federal Agencies.
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`39.
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`CEQ promulgates regulations implementing NEPA, which are binding on all
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`agencies. See 40 C.F.R. §§ 1500-1508.
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`40.
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`CEQ first promulgated regulations under NEPA in 1978. These regulations have
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`provided the uniform standard for NEPA compliance across all agencies of the federal
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`government for over 40 years, and they form the basis for judicial opinions that now constitute
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`bedrock environmental law.
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`41.
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`Prior to the issuance of the Final Rule at issue here, CEQ regulations provided,
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`among other requirements:
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`a. All “[a]gencies shall . . . [m]ake diligent efforts to involve the public in preparing
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`and implementing their NEPA procedures.” Id. § 1506.6(a) (2019).
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`b. Specifically, agencies had to “[p]rovide public notice of NEPA-related hearings,
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`public meetings, and the availability of environmental documents so as to inform
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`those persons and agencies who may be interested or affected.” Id. § 1506.6(b)
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`(2019).
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`c. The scope of NEPA review included consideration of direct, indirect, and
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`cumulative effects on “ecological . . . aesthetic, historic, cultural, economic,
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`social, or health” interests. Id. § 1508.8 (2019).
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`d. When determining if an action was “[s]ignifican[t]” for purposes of NEPA,
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`review required “considerations of both context and intensity[.]” Id. § 1508.27
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`(2019). Because significance “varies with the setting of the proposed action,”
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`“context” included consideration of “society as a whole,” an “affected region,”
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`and “the locality,” as well as “affected interests.” Id. § 1508.27(a) (2019). The
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`“intensity” prong of the significance analysis related to “the severity of the
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`impact.” Id. § 1508.27(b) (2019). “Intensity” factors included, among others: the
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`“degree to which the proposed action affects public health or safety”; “[u]nique
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`characteristics of the geographic area” such as wetlands, wild and scenic rivers,
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`or ecologically critical areas; the degree to which effects on the human
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`environment would be “controversial”; the degree to which effects on the human
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`environment were “highly uncertain or involve unique or unknown risks”;
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`whether the action was “related to other actions with individually insignificant
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`but cumulatively significant impacts”; how the action may affect “significant
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`scientific, cultural, or historical resources”; how the action may adversely affect
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`an endangered or threatened species or its critical habitat; and whether the action
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`threatens a violation of federal, state or local environmental laws. Id.
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`e. An agency could create categorical exclusions for its own actions, but only if it
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`established the “actions [] do not individually or cumulatively have a significant
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`effect on the human environment and [] have been found to have no such effect
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`in procedure adopted by” the agency. Id. § 1508.4 (2019). Agencies had to
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`develop “specific criteria for and identification of” actions that qualify as
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`categorical exclusions. Id. § 1507.3(b) (2019).
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`f. Agency-created procedures for establishing categorical exclusions must provide
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`for extraordinary circumstances, such that even if the agency demonstrated an
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`exclusion is generally warranted, when applying the exclusion it had to determine
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`whether there were “extraordinary circumstances in which a normally excluded
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`action may have a significant environmental effect.” Id. § 1508.4 (2019).
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`42.
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`CEQ also issued guidance further explaining how an agency should establish
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`categorical exclusions. See Nov. 23, 2010 CEQ Memorandum for Heads of Federal Departments
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`and Agencies re: Establishing, Applying, and Revising Categorical Exclusions under NEPA, 75
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`Fed. Reg. 75,628, 75,631-38 (Dec. 6, 2010). The guidance instructs agencies to “substantiate”
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`their decisions in light of relevant evidence, stating that “[f]or actions that do not obviousl