Transcript SEPA & NEPA: Administrative Appeals SEPA & NEPA Conference

Administrative and Judicial Appeals
Under SEPA
The Latest Word on Compliance with
SEPA/NEPA
January 25, 2006
David S. Mann
Gendler & Mann, LLP
1424 Fourth Ave., Suite 1015
Seattle, WA 98101
206 621-8868
[email protected]
www.gendlermann.com
SEPA Administative Appeals: In
a Nutshell
• Discretionary with local government
• Must be combined with review of related
government action
• Generally strict time limitations for appeals
• Subject to regulatory reform requirements of one
open record hearing and one closed record
appeal
• Responsible Official must be given substantial
deference
Administrative Appeals are
Discretionary With Agency
• SEPA grants control of the decision to allow
appeals to the agency or local government
• If an administrative appeal is available, the
procedures must be codified in the agency rules
or local government code
See
RCW43.32C.075(3)
WAC 197-11-680(2)
What if an administrative appeal
is not available?
• LUPA allows for a SEPA record to be created in superior court:
– RCW 36.70C.120 provides:
(1)
When the land use decision being reviewed was made by a quasijudicial body or officer who made factual determinations in support of the decision
and the parties to the quasi-judicial proceeding had an opportunity consistent with
due process to make a record on the factual issues, judicial review of factual
issues and the conclusions drawn from the factual issues shall be confined to the
record created by the quasi-judicial body or officer, except as provided in
subsection (2) through (4) of this section.
***
(3)
For land use decisions other than those described in subsection
(1) of this section, the record for judicial review may be supplemented by
evidence of material facts that were not made part of the local jurisdiction's
record.
What if an administrative appeal
is not available?
• The APA also allows for a SEPA record to be created in
Superior Court:
RCW 34.05.562 provides:
The court may receive evidence in addition to that contained in
the agency record for judicial review, only if it relates to the validity of
the agency action at the time it was taken and is needed to decide
disputed issues regarding:
***
(c) Material facts in rule making, brief adjudications, or other
proceedings not required to be determined on the agency record.
What decisions are subject to
administrative appeal?
• Final Threshold Determinations
– (DS, DNS, MDNS)
• Determinations of Adequacy of a Final EIS
or Final Supplemental EIS
• Exercise of SEPA substantive authority to
condition or deny
Combined Hearings
• SEPA administrative appeal hearings must
generally be combined with hearings on related
government actions (RCW 43.21C.075(2)(a))
• Three notable exceptions:
– Appeals of Determination of Significance
– Appeals of DNS/MDNS when combined with hearing
where hearing body is making final decision or
recommendation on underlying action
– Appeals of adequacy of FEIS where decision was
made by agency and agency is project proponent
(RCW 43.21C.075(3)(b).
Administrative Hearings Are
Limited
• Pursuant to Regulatory Reform, SEPA
administrative hearings (generally**) are
limited to:
– One Open Record Hearing, and
– One Closed Record appeal hearing
RCW 36.70B.050, .060; WAC 197-11-680(2
Short deadlines for appeal
• General rule: Appeals must be commenced
within any time limitation for reviewing the
government action
(RCW 43.21C.075(2)(c))
• Under RCW 36.70B.110(9), if the local
government does provide an appeal, it must say
so in its “notice of decision” and allow 14 or 21
days. See also WAC 197-11-680(3)(vii)
Notice requirements
• Old Rule: SEPA does not specifically require
notice of time and place for bringing an appeal
– Enough if government gives actual and substantive
notice that an appealable decision was made. (see e.g.
Citizens for Clean Air v. Spokane 114 Wn.2d 20 (1990)
• New Rule: RCW 36.70B.110(9) requires that a
local government’s “Notice of Decision” include
notice of a SEPA appeal if allowed.
Successive Appeals
• General Rule: a local government or
agency may permit only one administrative
appeal of a SEPA threshold determination
• Exception – it is possible for there to be
successive appeals before other agencies
(e.g. – SHB, GMHB)
Creating the record
• SEPA mandates that if an administrative appeal
is allowed, the agency must create an adequate
record:
– “Shall provide for the preparation of a record for use
in any subsequent appeal proceedings, and shall
provide for any subsequent appeal proceedings to be
conducted on the record, consistent with other
applicable law. An adequate record consists of
findings and conclusions, testimony under oath, and
taped or written transcript. “
RCW 43.21C.075(3)(c).
Standard of Review
• Open record hearings are generally heard “de
novo.”
– Threshold Determinations are reviewed under a
“Clearly erroneous” standard
– Adequacy of EIS determinations are reviewed under
a “rule of reason”
– Deference must be afforded the responsible official
• Closed Record Appeals are generally reviewed
under a clearly erroneous standard for questions
of law and substantial evidence for questions of
fact
Does a failure to comment
eliminate standing to appeal?
• WAC 197-11-545 provides that a failure to timely
comment on a properly noticed SEPA document
“shall be construed as lack of objection to the
environmental analysis.”
• Does WAC 197-11-545 eliminate standing to
those that fail to comment?
– Regulatory, not statutory
– No reported case law
– May only apply to failure to comment on DEIS
Special SHB Provisions
• The SHB “may” be designated as the reviewing
agency:
– RWC 43.21C.075(7): Jurisdiction over the review of
determinations under this chapter in an appeal before
an agency or superior court shall upon consent of the
parties be transferred in whole or part to the SHB.
The SHB shall hear the matter and sign the final order
expeditiously. The Superior Court shall certify the
final order of the SHB and the certified final order may
only be appealed to an appellate court.
Special SHB Provisions continued
• Under the SMA, shoreline decisions are made first by
local governments and may then be appealed to the
SHB. Prior to 1994, it was possible to appeal a SEPA
procedural determination to both the local government
and the SHB
• RCW 43.21C.075 now states: “in the case of an appeal
regarding a project or other matter that is also the
subject of an appeal to the SHB, the SHB shall have sole
jurisdiction over both the SEPA appeal and SMA appeal.”
State Environmental Hearings
Boards– Standard of Review
• The Scope of Review before the SHB, PCHB,
and FPAB is “de novo” and is not confined to
the record developed before the local agency
• Threshold determinations are reviewed under a
“clearly erroneous” standard
• The adequacy of an EIS is reviewed under a
“rule of reason”
• Deference must be afforded the responsible
official
Growth Management Hearings
Board – Standard of Review
• The scope of review by the Growth Management
Hearings Boards is based on the record
developed before the agency
• Threshold determinations are reviewed under
the “clearly erroneous” standard
• The adequacy of an EIS is reviewed under a
“rule of reason” standard
• Deference must be given to the responsible
official
SEPA Judicial Appeals:
In a Nutshell
• Must be Combined with Appeal of
Underlying Action
• No Independent Appeal Authority
• Timing is Dependent on Underlying Action
• Standard of Review is Dependent on Type
of Decision Appealed
Judicial Review Must Be Combined
With Underlying Action
• RCW 43.21C.075(6)(a):
– Judicial Review under this chapter shall
without exception be of the governmental
action together with its accompanying
environmental determination
– Defensive Appeals? Watch out for situation in
Lakeside Industries v. Thurston Cy.
119 Wn.App. 866 (2004)
No Independent Appeal Authority:
Appeals Must Be Brought Under
Statute Controlling Underlying Action
• Land Use Petition Act
• Administrative Appeals Act
• Writ of Review
Land Use Petition Act “LUPA”
• Chapter 36.70C RCW
– Applies to “Land Use Decisions”
• e.g., rezones, conditional use permits, subdivision
approvals, etc.
– Made by a “Local Jurisdiction
• Defined as a County, City or Incorporated Town
Administrative Procedures Act
“APA”
• Chapter 34.05 RCW
– Applies to actions of state agencies and
boards
• Includes project proponents (e.g. WSDOT, DNR)
• Regulatory agencies (e.g. DOE, DNR)
• Review bodies (e.g., SHB, PCHB, GMHB, FPAP)
Writ of Certiorari
• Chapter 7.16 RCW
– Applies to special purpose governmental
entities such as ports, water districts, transit
authorities
Timing of Appeal Is Based on
Underlying Decision
• RCW 43.21C.075(5)(c):
– “If there is a time period for appealing the
underlying governmental action, appeals
under this chapter shall be commenced within
such time period. The agency shall give
official notice stating the date and place for
commencing an appeal.”
• LUPA – 21 days: RCW 36.70C.040(3)
• APA – 30 days: RCW 34.05.542(3)
• Writ – 21 days?
Effect of Multiple Decisions;
Use of the Notice of Action Taken
• As a general rule, if multiple governmental
actions will be based on a single SEPA
document, the document can be
challenged with any one of the underlying
decision
• SEPA provides for an optional “Notice of
Action Taken” which, when used limits
procedural appeals. RCW 43.21C.080
Standard of Review is Determined
By Decision Appealed
• Different Standards of review for:
– Threshold determinations
• Determination of Significance (DS)
• Determination of Nonsignificance (DNS)
• Mitigated DNS
– Adequacy of EIS or SEIS
Standard of Review: Threshold
Determinations
• Decision of government agency to be accorded
substantial weight – RCW 43.21C.090
• “Clearly Erroneous”
– A decision is “‘clearly erroneous’ when, even where
there is evidence to support the decision, the
reviewing body is ‘left with the definite and firm
conviction that a mistake has been committed.’”
Wenatchee Sportsmen Association v. Chelan County, et al., 141 Wn.2d
169, 176 (2000). ; Hayden v. Port Townsend, 93 Wn.2d 870, 880
(1980); Cougar Mountain Associates v. King County, 111 Wn.2d 742,
747, 755 P.2d 264 (1988).
Standard of Review: Threshold
Determinations
• In reviewing a decision under the clearly erroneous
standard, the court is required to “examine the entire
record and all the evidence in light of the public policy
contained in the legislation authorizing the decision.”
Cougar Mountain, 111 Wn.2d at 747
• the record and evidence must demonstrate that
“environmental factors were considered in a manner
sufficient to amount to prima facie compliance with the
procedural requirements of SEPA,” and that the decision
to issue an MDNS was based on information sufficient to
evaluate the proposal’s environmental impact. Anderson
v. Pierce County, 86 Wn. App. 290, 302, 936 P.2d 432 (1997).
Standard of Review: EIS or SEIS
• The adequacy of an EIS is a question of
law subject to de novo review.
– Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 37-38 (1994);
Org. to Preserve Agric. Lands {OPAL} v. Adams County, 128
Wn.2d 869, 875 (1996); Klickitat Cy. Citizens Against Imported
Waste v. Klickitat Cy. 122 Wn.2d 619, 632 (1993).
Standard of Review: EIS or SEIS
• Adequacy is judged by the "rule of reason," which requires a
“reasonably thorough discussion of the significant aspects of the
probable environmental consequences of the agency’s decision.
Klickitat Citizens 122 Wn.2d at 633.
• While the court should give the agency determination substantial
weight, the court’s role is also to determine whether the proposed
action's environmental effects are disclosed, discussed and
substantiated by opinion and data. Citizens Alliance To Protect our
Wetlands(CAPOW) v. City of Auburn, 126 Wash.2d 356, 362 1995);
• The level of detail must be commensurate with the importance of the
environmental impact and the plausibility of alternatives. Citizens v.
Klickitat County, 122 Wash.2d 619, 641 (1993).