Murdoch University Electronic Journal of Law

Meeting Public Expectations--Judicial Review of Environmental Impact Statements in the United States:
Lessons for Reform in Western Australia?

Author:	Gary D Meyers BA, JD, LLM (Penn) Professor, Murdoch University School of Law
Issue:	Volume 3, Number 2 (July 1996)

Introduction:

1. This essay addresses the role of judicial review of administrative agency environmental impact statements (EIS) in achieving the goals of environmental protection policies. Specifically, this essay examines the American experience with appellate review of EIS compliance conducted under the auspices of the U. S. National Environmental Policy Act(NEPA)[1]; and, asks whether that experience offers any lessons for strengthening Western Australia's environmental impact assessment(EIA) legislation, the Environmental Protection Act of 1986(WA Act or EP Act).

2. It should be noted at the outset, that this essay proceeds by expressly acknowledging that comparative legal analysis may prove difficult. The comparative legal method has both strengths and weaknesses. As Professor Grossfeld of the University of Munster notes, the essential limitation of comparative law analysis arises from the fact that every legal system is a unique product of a particular complex of determining social, political, historical, and cultural factors.[2] Each legal tradition has its own defining characteristics; some may be so imbedded in normative mythology as to be undiscoverable, while others may be essentially incomparable. In Grossfeld's view, it is crucial to admit that comparative legal analysis is inevitably superficial because specific laws arise from the whole of a particular country's legal system.[3] He asks, "[i]f we can hardly grasp our own legal system as a functioning whole, how can we grasp a foreign one?"[4] On the other hand, Grossfeld notes that comparative legal analysis offers an opportunity to learn from other systems, to provoke thought regarding legal reform.[5] Similarly, the authors of a leading comparative law text note in their introductory chapter that, comparative legal methodology offers insights into the study of a particular legal system not available if such study is limited to the laws of one's own country. [6]

3. Comparative legal analysis is particularly useful for informing the content of legislative reform.[7] In the instant context, a comparison between the U.S. and Australian treatment of judicial review of EIA mandates is especially apt, given that the U.S. model -- NEPA -- served as the model for subsequent development of EIA legislation throughout Australia.[8] With the foregoing acknowledgments (and caveats) in mind, this essay proceeds to consider the efficacy of judicial review of EIA decision making for promoting public support for and confidence in such decision making. Part I briefly reviews the nature of environmental decision making and the goals of environmental impact assessment. Part II briefly considers NEPA's EIS provisions and the effects of judicial appeals in the U.S. on EIA decision making. Drawing upon the American experience, this essay concludes with a brief review of the rationale for the current EIA process in Western Australia and argues that reforming the WA Act to allow for broader public enforcement of the Act's EIA provisions will benefit both the public and the government, as well as the development and conservation of the State's natural resources.
   

   Part I. Environmental Impact Assessments--In the Service of the Public Interest

   A. The Character of Environmental Decision Making and Disputes

4. Environmental disputes, particularly those involving the EIA process are essentially "public" disputes; they involve questions of community values regarding the appropriate balance between economic development (including protection or promotion of employment) and the conservation and preservation of our natural heritage. Judge Christine Trenorden of the South Australian Environment, Resources and Development Court notes that the "public interest factor" in environmental decision making is significant and is the defining characteristic that distinguishes environmental disputes from those typically resolved by courts.[9] She goes on to note that, as opposed to a typical case which pits the claim of an individual party against the claim of another, the nature and complexity of environmental disputes arise from a number of factors: ... in environmental disputes, there are often merits arguments which are not so easy to deal with because they may involve questions of design, pollution potential and ... contamination issues.... There are many differing values but few objective standards by which to measure the effect of any activity on the environment.... Even where there are objective standards the interpretation and application of those standards is likely to be the subject of much debate; the decision maker may be subjected to ... expert evidence which is opinion evidence, based on inferences drawn from facts. Disagreements may not be about the facts, but about the nature of the inferences that can be drawn and the conclusions that follow.[10]

5. Recognition of the public nature of environmental decision making and disputes over that decision making has not, however, necessarily led to greater public enforcement of EIA laws in Australia. In Australian Conservation Foundation v Commonwealth[11], the High Court of Australia denied standing to a public interest plaintiff seeking to enforce provisions of the Commonwealth EIA legislation.[12] In doing so, the Court noted that the duty to protect the environment was a public duty owed by the government to the public as a whole, and thus unenforceable by any segment of the public.[13]

6. Arguably, however, just the reverse of what the ACF Court held ought to be true, especially where government acts as a guardian of public trust obligations. As suggested in an earlier work, "since environmental policy and protection is a duty owed to the public, the public in a democracy should be able to demand responsiveness on the part of public officials, and enforce that responsibility in our courts."[14]
   

   B. The Goals of the EIA Process

7. Legislation requiring environmental impact assessment of activities and projects that may adversely affect the environment[15] may serve a broad spectrum of objectives. EIA legislation may be directed to maintaining the quality of the environment; prevention, control, or clean up of pollution; conservation of resources; preservation of biodiversity, including the quality and diversity of ecosystems; maintaining the existing quality of environmental amenities (eg., clean air and water); or a combination of some or all of these purposes.[16] Westman asserts that the most important rationale for EIA procedures is, "[t]he opportunity to identify costly and undesirable effects [of proposed development activities], and to modify projects in the design stage."[17] Inevitably, perhaps, given the "public" nature of government decisions affecting our natural heritage and the growing, some would say, fundamental importance and concern with environmental health and quality[18], EIA procedures have become critical for informing and involving the public in environmental decision making. This informational function has become paramount for -- both decision makers and citizens alike -- negating almost entirely, any substantive , protective, or prohibitive functions that EIA proponents might have originally envisioned.[19] As Westman notes in his comparative analysis of EIA decision making, "[i]mpact assessment typically facilitates decision making by developing information and catalyzing discussion."[20] One might prefer that EIA processes include a duty to act on the information provided in a project's assessment, i.e., require substantive protection on the basis of information generated by the EIA. That is not, however, the topic of this essay. Rather, this essay assumes that the purpose of EIA procedures is to generate information and that judicial enforcement of those procedures is directed to assuring that the information is in fact produced.
   

   Part II. Judicial Review of EIA Decision Making in the U.S.

   A. A Brief Review of NEPA

8. As the progenitor of EIA legislation around the world, NEPA typifies the subsequent development of most EIA legislation in two main respects. First, unlike the WA Act[21], NEPA provides only for assessment of environmental impacts; it is not an integrated resource conservation or pollution prevention and control act. Second, it contains no limitations on whether a project, once assessed, may go forward and no requirements that identified impacts must be mitigated following assessment of the proposal. In the U.S., constraining or mitigating the impacts of a proposed project assessed in compliance with NEPA depends upon the applicability of other environmental control or resource development legislation that applies to a proposed project. [22] The characterization of NEPA as essentially an environmental "full disclosure" law[23] arises from the mandates of the statute and the interpretation of those mandates by the courts. While Congress recognized "the profound impact of man's activity on ... the natural environment ..."[24], and announced its purpose in NEPA "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] promote efforts which will prevent or eliminate damage to the environment ..."[25], NEPA's enforceable provisions "merely" require all federal agencies to prepare a detailed statement on the environmental impacts (EIS) of major proposals "significantly affecting the quality of the human environment."[26] Interpreting this language, the U.S. Supreme Court has consistently held that NEPA is essentially a procedural statute.[27] As the Court noted in upholding an EIS prepared by the Department of Housing and Urban Development rejecting an alternative site for low income housing, "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to ensure that the agency has considered the environmental consequences [of its preferred alternative]; it cannot interject itself within the area of discretion of the executive as to the choice of action to be taken."[28] In its most recent consideration of NEPA, the Court reiterated its view of the statute's "procedural quality," and rejected public interest plaintiffs' contentions that an EIS was deficient for failing to provide a detailed mitigation plan to offset the consequences of an approved ski development on national forest land. Instead, the Court notes that to impose a substantive duty on agencies to include a mitigation plan in an EIS "would be inconsistent with NEPA's reliance on procedural mechanisms -- as opposed to substantive, result-based standards."[29] If NEPA imposes no substantive criteria which limit agency decisions, what does it do? Succinctly stated, in the words of the Robertson Court, "[o]ther statutes may impose substantive obligations on federal agencies, but NEPA merely prohibits uninformed -- rather than unwise agency actions."[30] It is NEPA's prohibitions on "uninformed" agency decisions that are judicially enforceable. According to the U.S. Council on Environmental Quality(CEQ)[31] Regulations[32] and interpretive decisions by the courts[33], NEPA has two essential purposes: to inform the federal agency decision making process; and to make transparent and public the decision making process. By requiring federal decision makers to consider the environmental impacts of proposed actions, the cumulative impacts of proposals affecting a particular area, and all reasonable alternatives for action, as well as postpone all irretrievable commitments of resources to a particular proposed project[34], it is assumed that agencies will reach better reasoned decisions. [35] Additionally, by requiring full public participation in and comment on the EIS process, as well as citizen enforcement of NEPA, the decision making process is assumed to be more open and democratic.[36]
   

   B. The Impacts and Accomplishments of Judicial Review of NEPA

9. Interestingly, unlike other major American environmental protection legislation, eg., the U.S. Clean Air Act and U.S. Clean Water Act[37], NEPA contains no express public enforcement or "citizen suit" provision. Instead, citizen enforcement, i.e., public initiated judicial review of federal agency EIS decision making is a judicially imposed, or perhaps, judicially engrafted function of NEPA.[38] As Ferrester notes, the framework for citizen initiated review of NEPA decisions is provided by the U.S. Administrative Procedure Act[39] which states that "agency decisions are presumptively subject to judicial review except where a statute expressly prohibits judicial review ... or where agency action is committed to agency discretion by law." [40]
   Although early U.S. Courts of Appeals decisions like the Clavert Ciffs' case(D.C. Circuit)[41] and the 8th Circuit decision in EDF v Corps of Engineers[42] promised substantive review of the environmental merits of agency decisions, US Supreme Court decisions halted that brief trend and limited review to two procedural questions.[43] Thus, since the early 1970's, NEPA litigation has been directed to determining first, whether an agency must prepare a full EIS (which depends upon answering a number of sub-questions, i.e., 1. is there a proposal; 2. for a major federal action; 3. significantly affecting the environment); or second, if an EIS has been prepared, is it adequate (which includes consideration of sub-issues such as the timeliness of preparation, the public comment procedures used and responses to comment, the correctness of agency assessment methodology, the quality of the discussion of environmental affects including cumulative impacts, or even the readability of the EIS from a layperson's point of view).[44] As Coggins, Wilkinson, and Leshy note, as federal agencies have incorporated NEPA's EIS requirements into agency practices, most of the litigation now focuses on the second issue, i.e., the seemingly boundless issues encompassed in determining the adequacy of agency prepared environmental impact statements.[45]The scope of this essay does not allow for consideration of the myriad of procedural issues which may potentially be raised by public interest plaintiffs in NEPA cases.[46] Rather, the focus of the remainder of this essay is on the potential benefits of judicial review of agency EIA decisions. Despite the acknowledged failure of NEPA to impose substantive environmental constraints on agency decision making[47], publicly enforced judicial review of agency compliance with NEPA has produced some notable accomplishments. As one prominent commentator notes, generally, "[b]y opening the courthouse doors and requiring reasoned decision making, ... [court] decisions supplied the means to police administrative decision-making in the environmental era ushered in by NEPA."[48] Or, as another scholar notes, in essence, public interest initiated review of NEPA compliance has, despite the inability to halt wasteful or destructive projects, "exacted from federal agencies the full measure of compliance with NEPA's procedural duties."[49] Professor France also argues that, in consequence of this full measure of compliance, agencies "do give greater consideration to environmental values now than they did ... [prior to NEPA's enactment]." [50] Though some commentators would disagree,[51] even Justice Stephens, author of the Supreme Court's Robertson decision, notes that enforcement of NEPA's procedural provisions is "almost certain to affect the agency's substantive decision...."[52] Prof. Blumm agrees, and in fact goes further, arguing that today, the overall impact of extensive judicial review of NEPA has produced a more wide-spread effect, "for far more projects are altered as a consequence of agency discretion than judicial injunction."[53]

10. In sum, extensive judicial review of agency compliance with NEPA's EIS procedures has significantly altered environmental agency decision making. By opening agency decision making to public participation, scrutiny, and enforcement, federal agencies have embarked on a more searching inquiry into all the costs and benefits of proposed projects. In some cases, agencies have altered or mitigated proposed projects because of the EIS process. In other cases, the EIS process reveals information which compels agencies to halt or alter projects because of other applicable statutory constraints.[54] Extensive judicial review in the U.S. of NEPA has also produced "side benefits," by, eg., raising our ecological consciousness, motivating the development of professional disciplines like conservation biology and urban planning, and enhancing the role of scientific expertise in policy making[55], as well as encouraging and informing the development of EIA procedures in other countries, including Australia.[56] Despite its characterization as an environmental policy consisting "of one part information disclosure, one part public participation, and eight parts administrative discretion,"[57] judicial review of NEPA has had a profound effect on the democratization of environmental policy making.[58] Increased public awareness and media coverage of environmental issues (and important court cases) has also raised legislative awareness of environmental concerns, which in turn, has led governments to address a wide variety of environmental issues.[59] In the final analysis, increased public and public official awareness may provide sufficient justification for enhanced public enforcement of laws designed to prevent and control pollution and protect and conserve our natural heritage.
    

    Conclusion -- Reforming the Western Australian Environmental Protection Act

11. When the Commonwealth and Australian States adopted legislation following NEPA's example, most of those governments, with the exception of New South Wales, excluded judicial review from their laws.[60] The Commonwealth went even further, making the decision to prepare an EIS discretionary. [61] Governments responded as they did in the early 1970's, in part due to early concerns with project approval delay under NEPA, and in part due to fears of excessive and expensive litigation.[62] However, if one examines more recent experience with NEPA in the 1980's and 1990"s, one finds that the lengthy administrative delays associated with EIS management are, in Blumm's words, "largely over,"[63] and as documented by Ferrester, that the "flood" of litigation in the 1970's has slowed to a "trickle" in the past 15 years. [64] The WA Act falls into that category of EIA legislation that fails to provide for judicial review, though as illustrated by the Coastal Waters Alliance case[65], review provided by common law remedies may be available. [66] Part VII of the WA Act provides that appeals may only be lodged with the Environment Minister at a variety of points in the EIA process.[67] As one former EPA Commissioner notes, the WA Act's ministerial appeal system was "deliberately designed to minimise the potential for litigation ...."[68] Defenders of the ministerial appeal system, including two former EPA Commissioners, argue that the overall flexibility of the Act's many-tiered EIA system mitigates against the need for judicial review[69]; or that the use of the existing appeals system to raise general, political issues rather than specific matters has limited the number of successful appeals under the present system;[70] or that there is no need to resort to courts because the WA Act is intended to assist broad-scale government planning. [71] Still others suggest that because major EIA decisions often deal with complex scientific issues, those decisions are best left to expert agencies, rather than subject to review by traditional or even specialist courts.[72] Scientific complexity or expertise is a shibboleth; courts deal with uncertainties and highly complex matters on a daily basis. The problems with "unreviewable" flexibility, is that it opens the door wide to abuse of discretion by public officials. Additionally, what may be "political" to one reviewer, may very well be of practical concern to a public interest litigant. There are inherent legal safeguards that enable a court to dispense quickly with frivolous cases. Moreover, there are other significant barriers to public interest litigation that caution any litigant from pursuing a "losing" case, particularly liability for costs, fees, and undertakings for damages which may be imposed early in a case or at the end on unsuccessful litigants. These barriers (along with the remaining vestiges of anachronistic standing requirements) mitigate any likelihood of "political" or frivolous litigation.[73] Finally, limiting appeals to whether an EIA should be prepared (including the level of assessment) or to the adequacy of compliance with the designated process, as is the case with NEPA, are matters of statutory construction well within a court's competence.

12. Johnston's argument[74] against judicial appeals in WA is the strongest, given the structure and purpose of the Act. As Barker notes, the WA Act is starkly different than other EIA legislation, in that it runs in tandem with resource development controls and "is intended to aid the Minister for Environment in coming to a decision whether or not to allow a proposal to be implemented," rather than advise the public or a particular agency of the impacts of a proposed project.[75] The Act facilitates development, it does not caution against unwise or uninformed actions.

13. The structure of the Act, however, is precisely the problem. Not only does it reject the critical participatory element in decision making of public initiated judicial review of EIA procedures, but as even one of the defenders of ministerial review of EIA acknowledges, there is a perception that an appeal from the WA Environment Protection Authority to the Environment Minister "is much like an appeal from Caesar to Caesar."[76] Similarly, Schoombee aptly notes, there is a significant problem when government departments responsible for managing lands, minerals, forests, fisheries and other resources "act as both promoter and policeman of an industry."[77] This problem is exacerbated in a jurisdiction such as Western Australia, which is resource rich / dependent and in consequence has a "tradition and largely accepted culture of governmental and Ministerial control of resource use."[78]

14. Judicial review of EIA decision making, or what one commentator characterizes as the "community environmental rights movement," seems to be gaining ground in Australia.[79] That assessment seems to be correct; both Queensland and South Australia have recently joined New South Wales by establishing specialist courts to review environmental matters.[80] Keeping in mind the caveats raised at the outset of this essay, it is important to acknowledge that a central feature of Australia's legal tradition is the "highly 'political' character of the overall system of government in Australia."[81] As Associate Professor Rob Fowler, one of Australia's most prominent environmental law commentators, notes, a prominent element of this tradition is the exercise of broad discretionary power by government ministers largely immune from public comment, scrutiny, or participation and generally beyond review by the judiciary. [82]

15. As evidenced above, by moves in other States to greater judicial review of EIA procedures, that tradition may be changing, and in my view, such change is needed in Western Australia. As Prof. Blumm notes, "I do not mean to imply that the [EIA] system cannot work without the courts, but until Australian jurisdictions establish some sort of external check on ministerial discretion, it seems ... that the results will continue to be less than satisfactory." [83] As suggested earlier,[84] even in the absence of substantive review of EIA decisions, the benefits of judicial review of compliance with procedural EIA requirements are significant. Both the U.S. and Australia have had more than 20 years of experience with EIA processes; that experience should, as it has in the U.S.,[85] enable WA to avoid unnecessary administrative delay and much of the litigation that characterized the early experience with NEPA. The mere threat of judicial review is likely to produce better reasoned and better documented decisions.[86]

16. Decisions on environmental matters are, in substance, community decisions. They affect all the public and arguably, they should involve the public in the process of decision making. In a democracy, to assure that the public is involved meaningfully in such decisions, government must be accountable to its citizens. Unchecked ministerial discretion is an anathema to meaningful public participation in decisions that essentially involve interpretation of community values. There is no more important community concern than where we live, how we live, and the relationship of human communities with their natural surroundings.

17. Reforming the WA Act to provide specifically for judicial review of the EIA decision making process in that Act will surely produce greater governmental accountability. More importantly, however, as other commentators before me have noted, external, judicial review of the EIA process serves a democratic function and empowers the public, enhancing their role in, support for, and commitment to community decision making.[87]

Notes

[1] National Environmental Policy Act of 1969, 42 USC s4321 et seq. (1988).

[2] B. Grossfeld, The Strength and Weakness of Comparative Law 41 (Clarendon Press, 1990).

[3] Id., at 39.

[4] Id.

[5] Id., at 70.

[6] R.B. Schlesinger, H.W. Baade, M.R. Damaska, and P.E. Herzog,, Comparative Law: Cases--Text--Materials (5th edn.) 1 (The Foundation Press, Inc., 1988); and see also, G. Winterton, 23 Am. J. Comp. L. 69 (1975).

[7] M. Cappelletti, "Comparative Law Teaching and Scholarship: Method and Objectives," Special Issue No. 1 Asia Pac. L. Rev. 1, 6 (1994) notes that comparative law is "the laboratory of the legislator."

[8] B.J. Preston, "Public Enforcement of Environmental Laws in Australia," 6 J. Envtl. L. & Litigation 39, 41 (1991); and R.J. Fowler, Environmental Impact Assessment, Planning and Pollution Control Measures in Australia 4-8 (AGPS, 1982).

[9] C.L. Trenorden, "Judging the Jurisdictions: Where Should Environmental Disputes Be Resolved, " No. 4 Australian Env. L. News 46, 47 (Dec., 1994).

[10] Id.

[11] 146 CLR 493 (1980).

[12] Environmental Protection (Impact of Proposals) Act 1974 (Cth.).

[13] ACF v Commonwealth, 146 CLR at 524.

[14] G.D. Meyers, "Divining Common Law Standards for Environmental Protection: Application of the Public Trust Doctrine in the Context of Reforming NEPA and the Commonwealth Environmental Protection Act," 11 EPLJ 289, 301 (1994). Arguably, federal standing law in Australia may be moving closer to this position following the decision in Tasmanian Conservation Trust Inc. v Minister for Resources and Gunns Ltd., Federal Court of Australia, New South Wales District Registry, No. NG 536 of 1994 (10 January 1995). In that case, the court invalidated export licenses issued to Gunns for the export of woodchips on the basis that the Commonwealth failed to comply with the Commonwealth Impact of Proposals Act. The court accepted that the Trust had standing on the basis that it was a peak conservation organization recognized by both the Commonwealth and Tasmanian governments which had engaged in significant research on forest preservation and which had made submissions and supported with other activities forest conservation. Id., at slip opinion, 73- 76. Similarly, in Western Australia , the rules regarding standing may also be less of a barrier to public interest organizations. See: Ex Parte: Coastal Waters Alliance of WA Inc. v Environmental Protection Authority and Minister for the Environment (unreported, Full Court, Supreme Court of Western Australia, File #Civ 1963 of 1994, 26 March 1996), in which Justice Rowland at p. 6 notes that standing was never in issue for the unincorporated public interest plaintiff organization.

[15] Environment as a legal construct escapes easy definition. However, it is critical that legislation requiring EIA clearly define what it means by the term. E. Christie, "Environmental Legislation, Sustainable Resource Use and Scientific Terminology: Issues in Statutory Interpretation," 7 EPLJ 262-65 (1990).

The critical nature of definitional preciseness is illustrated by two cases decided by the Western Australian Supreme Court. In the first, Palos Verdes Estates Pty. Ltd. v Carbon (unreported, Full Court, Supreme Court of Western Australia, Appeal # 1207 of 1990, 28 March 1991), appellantÕs conviction for polluting the environment was overturned on the basis that land clearing activities which resulted in soil and vegetation disturbance did not constitute Òpollutiion.Ó Chief Justice Malcolm, writing for the Court, notes that a broad interpretation of the term pollution might well include any activity that disturbs or alters the environment., but that such a view would create too wide a class of potential offenders. Instead, the term should be defined to encompass only those activites which detrimentally alter the land, air, or water to make them harmful or potentially harmfull to human health, wildlife, or plant life. Id., at 27-36.

In the second case, Ex Parte: Coastal Waters Alliance of WA Inc. v Environmental Protection Authority and Minister for the Environment, supra nt. 14, the Court construed the definition of environment to exclude consideration of economic factors such as employment opportunities or alternative sources of shell sand from determinations of the environmental impacts of a proposed activity. In effect, the decison which requires the EPA to reconsider the sand mining proposal confines EPAÕs consideration of the impacts of the project to those impacts which may significantly affect the physical area of the proposed shell sand dredging project. See: Id., judgements of Justice Franklin at 11-15; Chief Justice Malcolm at 8-9; and Justice Rowland at 13-13-21.

In the context of this essay, the term environment is used in its broadest sense to encompass natural ecosystems and the social, economic, and cultural interactions of human beings within those ecosystems. Thus the impacts that might properly be addressed in any EIA include not only those that may degrade the physical environment, but also those impacts on human communities that flow from an approved development or activity. Arguably such a broad definition would have resulted in a different result in the Coastal Waters Alliance case, however, such a result could be avoided by bifurcating the impact assessment process and considering social/economic impacts separately from environmental impacts, i.e., those which degrade or may potentially degrade the natural environment. Government decisions on project approvals will almost always consider the economic benefits and costs of projects, the question is whether those considerations should be overt or covert and whether economic considerations should take precedence over ecological considerations.

[16] Meyers, supra nt. 14 at 290.

[17] W.E. Westman, Ecology, Impact Assessment, and Environmental Planning 5 (John Wiley & Sons, Inc., 1985).

[18] L.K. Caldwell, "A Constitutional Law for the Environment: 20 Years with NEPA Indicates the Need," 31 (No. 10) Environment 6, 7 (1989).

[19] See generally, P.M. Ferrester, "Revitalizing The National Environmental Policy Act: Substantive Law Adaptions From NEPA's Progeny," 16 Harv. Env. L. Rev. 207 (1992).

[20] Westman, supra nt. 17 at 91.

[21] The WA Act is an integrated Act providing specifically for EIA in Part IV, as well as for pollution prevention, control, and abatement requirements, and for penalties for violating the Act's provisions. See: J. Bailey and V. English, "Western Australian Environmental Impact Assessment: An Evolving Approach to Environmentally Sound Development," 8 EPLJ 190-99 (1991).

[22] G.D. Meyers, "Old Growth Forests, The Owl, And Yew: Environmental Ethics Versus Traditional Dispute Resolution Under The Endangered Species Act And Other Public Lands And Resources Laws," 18 B.C. Env. Aff's. L. Rev. 623, 652-54 (1991).

Note also, in this respect, The Commonwealth Environmental Protection (Impact of Proposals) Act is distinguishable from NEPA because following assessment, the Commonwealth may act to prohibit projects going forward. See: Meyers, supra nt. 14 at 293; and Murphyores v Commonwealth, 136 CLR 1 (1976).

[23] Environmental Defense Fund v US Army Corps of Engineers, 325 F Supp 749, 759 (E.D. Ark. 1971), aff'd., 470 F2d 289 (8th. Cir. 1972), cert. denied, 412 US 931 (1972).

[24] NEPA, 42 USC s 4331 (c).

[25] Id., at s 4321.

[26] Id., at s 4332 (c).

[27] The Court has considered NEPA on 12 occasions. For a list of the "dirty dozen"(environmental plaintiffs have lost on all 12 occasions), see, D.C. Shilton, "Is The Supreme Court Hostile To NEPA? Some Possible Explanations For A 12-0 Record," 20 Env. L. 551 (1990).

[28] Strykers Bay Neighborhood Council v Karlin, 440 US 223, 227028 (1980).

[29] Robertson v Methow Valley Citizens Council, 490 US 332, 104 L.Ed.2d 351, 372 (1989). See also, Marsh v Oregon Natural Resources Council, 490 US 360, 104 L.Ed.2d 377, 391 (1989), considered in conjunction with the Roberston case, in which the Court noted, "NEPA does not work by mandating that agencies achieve particular substantive results."

[30] Id., Robertson v Methow Valley Citizens Council, 104 L.Ed.2d at 370-71.

[31] The CEQ was established by NEPA to assist federal agencies with implementation of the statute. It does so by enacting regulations for NEPA implementation that are binding on all federal agencies. NEPA, 42 USC ss 4321 and 4332.

[32] 40 CFR ss 1500-1517 (1988).

[33] See: Weinberger v Catholic Action of Hawaii, 454 US 139, 70 L.Ed.2d 298, 303 (1981); and Baltimore Gas & Electric Co. v Natural Resources Defense Council, 462 US 87, 76 L.Ed.2d 437, 446-47. (1982).

[34] These are the essential EIS elements imposed by NEPA on all federal agencies. NEPA, 42 USC s 4332 (c) (i)-(v).

[35] Marsh v ONRC, 104 L.Ed.2d. at 377.

[36] Id.; and Robertson, 104 L.Ed.2d at 370.

[37] See: Clean Air Act, 42 USC s 7604 (1982); and Clean Water Act, 33 USC s 1365 (1988).

[38] See eg., Calvert Cliffs' Coordinating Committee v US Atomic Energy Commission, 449 F2d 1109 (D.C. Cir. 1971); and M.C. Blumm, "The National Environmental Policy Act At 20: A Preface," 20 Env. L. 447, 478 (1990).

[39] 5 USC ss 551-59 and 701-06.

[40] Ferrester, supra nt. 19 at 209-10.

[41] Supra nt. 38.

[42] Environmental Defense Fund v US Corps of Engineers, 470 F 2d 289, 297 (8th Cir. 1972), cert, denied, 412 US 931 (1973) (held, in regard to a Corps decision to proceed with a dam project, NEPA requires more than consideration and disclosure of environmental impacts, it is "intended to effect substantive changes" in agency decision making.

[43] Ferrester, supra nt. 19 at 217-20.

[44] G.C. Coggins, C.F. Wilkinson, and J.D. Leshy, Federal Public Lands and Resources Law (3rd edn.) 335-36 (The Foundation Press, Inc., 1993).

[45] Id., at 336.

[46] For a comprehensive review of NEPA,'s history, see: articles contained in Symposium On NEPA At Twenty: The Past, Present, And Future Of The National Environmental Policy Act, 20 (No. 3) Env. L. 447-771 (1990).

[47] See: W.L. Andreen, "In Pursuit of NEPA's Promise: The Role of Executive Oversight in the Implementation of Environmental Policy," 64 Ind. L. J. 204, 210 (1989) who notes that once agencies comply with NEPA's procedural mandates to consider the environmental impacts of a proposal, the agency may proceed with the project unconstrained by NEPA and despite the environmental costs and consequences of the project documented in the EIS; and Meyers, supra nt. 14 at 292.

[48] M.C. Blumm, "The Origin, Evolution and Direction of the United States Environmental Policy Act," 5 EPLJ 179, 181 (1988).

[49] T. France, " NEPA -- The Next Twenty Years," 25 Land & Water L. Rev. 133, 135 (1990).

[50] Id.

[51] See generally, Ferrester, supra nt. 19.

[52] Robertson, 490 US at 350-51.

[53] Blumm, supra nt. 48 at 189.

[54] Meyers, supra nt. 14 at 292.

[55] Blumm, supra nt. 48 at 189.

[56] Meyers, supra nt. 14 at 293.

[57] NEPA--Preface, supra nt. 38 at 453.

[58] Blumm, supra nt 48 at 189.

[59] Blumm, supra nt. 48 at 179.

[60] Meyers, supra nt.14 at 293.

[61] Id.

[62] Blumm, supra nt. 48 at 180.

[63] Id.

[64] Ferrester, supra nt. 19 at 226-28.

[65] Supra, nt. 15.

[66] Arguably, judicial review of EPA environmental assessment threshold decisions may also be available in Western Australia through the pursuit of prerogative writs. Such actions, however, present their own set of procedural problems; moreover, the standard of review for directing what is essentially governmental discretion is more of a hurdle than if judicial review were provided for by the Act. See: Ex Parte Robin Chappel v The Environmental Protection Authority and Ors., Unreported, Supreme Court of Western Australia No. 950916 (April 27, 1995), in which the Full Court denied plaintiff's mandamus motion to direct the EPA to conduct an EIA on a draft land use and management plan on the basis that the authority had, within its discretion, appropriately determined that the plan would not have a significant impact on the environment.

For a brief review of the case, see: Recent Developments/Western Australia, "Environmental Impact Assessment of Plans," 2 Australian Env. L. News 29-31 (1995).

[67] J. Bailey and S. Brash, "The Environment Protection Act 1986 (WA): An Experiment in Non-Judicial Appeals," 6 EPLJ 199, 200-01 (1989).

[68] P. Johnston, "Environmental Advocacy: The Role of Lawyers in Western Australia, " 8 EPLJ 158, 166 (1991).

[69] See generally, Bailey and English, supra nt. 21.

[70] Bailey and Brash, supra nt. 66 at 213.

[71] Johnston, supra nt. 67.

[72] M.L. Barker, "The Politics of Environmental Dispute Resolution," 4 Australian Env. L. News 61, 75 (1994).

[73] See: Preston, supra nt. 8 at 66-73; and generally, J. Schoombee, "Public Interest Litigation: Facing the Twin Hurdles of Standing and Undertakings for Damages," in Conference Proceedings, A Seminar on Enforcing Environmental Protection (Law Society of Western Australia / NELA -- WA Division, 1991).

[74] Supra nt. 67.

[75] Barker, supra nt. 71 at 66. Under s. 45 of the Act, The Minister may, at the time of project approval, set conditions for the implementation and magement of the project. These conditions have the force of law (Id., at s. 47). But the conditions, which may be all important, are potentially unreviewable, being set at the end rather than during the EIA process. However, as the Coastal Waters Alliance (supra, nt. 15) case illustrates, where the Minister adopts EPA recommendations as the conditions, those recommendations may be subject to review.

[76] Id., at 70.

[77] Schoombee, supra nt 72 at 4.

[78] Barker, supra nt. 71 at 62.

[79] F. Kingham, "The Impact on Environmental Practice of Environmental Protection Legislation," 3 Australian Env. L. News 62 (1995).

[80] M. Squilache, "An American Perspective on Environmental Impact assessment in Australia," 20 Columbia J. Env. L. 43, 115 (1995).

[81] R.J. Fowler, "Novel and Effective Approaches in Australian Environmental Legislation," in R.J. fowler (ed.), Proceedings Of The International Conference On Environmental Law 23, 24 (NELA / Environmental Law & Policy Unit, University of Adelaide, 1989).

[82] Id.

[83] Blumm, supra nt. 48 at 180.

[84] See: supra nts. 48 - 59 and accompanying text.

[85] See: supra nts. 63 - 64 and accompanying text.

[86] Blumm, supra nt 48 at 189; and Squilache, supra nt. 78 at 113-14.

[87] See: Blumm, supra nt. 48 at 189; and Squilache, supra nt. 78 at 115.