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39 B.C. Envtl. Aff. L. Rev. 161 (2012)
Scope of Reviewable Evidence in NEPA Predetermination Cases: Why Going Off the Record Puts Court on Target

handle is hein.journals/bcenv39 and id is 163 raw text is: SCOPE OF REVIEWABLE EVIDENCE IN NEPA PREDETERMINATION CASES: WHY GOING OFF THE RECORD PUTS COURTS ON TARGET JESSE GARFINKLE* Abstract: Plaintiffs challenging an agency's environmental impact state- ment on the grounds of predetermination have been met with different judicially created evidentiary standards. Under the Fourth Circuit's ap- proach, as applied in National Audubon Society v. Department of t1w Navy, courts should restrict the scope of reviewable evidence to the administra- tive record. Under the Tenth Circuit's approach, however, extra-record ev- idence may also be considered in determining predetermination claims. In Forest Guardians v. U.S. Fish and Wildlife Service, the Tenth Circuit consid- ered emails, intra-agency correspondence, and a grant agreement outside the scope of the administrative record, and concluded that the agency had not predetermined the outcome of its impact statement. This Note advo- cates for the universal adoption of the expansive Tenth Circuit approach because of the importance of extra-record evidence in predetermination cases and its minimal risk to agency independence. INTRODUCTION Federal agencies stand at the front lines of both the national de- fense and preservation of the environment.' To this end, the National Environmental Policy Act (NEPA) requires agencies to carefully con- sider the environmental impacts of their proposed monitoring or exe- cuting actions before proceeding.2 A key mechanism to ensure the proper execution of this duty is NEPA's proscription of an agency's commitment of resources to a certain course of action prior to the completion of this analysis.3 In prohibiting such premature commit- ments, NEPA not only seeks to ensure comprehensive environmental analyses but also to eliminate sunk costs-namely the premature in- vestment of resources into undesirable courses of action that may result * Managing Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2011-12. 'See National Environmental Policy Act of 1969, 42 U.S.C. § 4331 (2006). 2 See id. § 4332. 3 40 C.F.R. § 1500.1 (2010).

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