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This matter’s merits are straightforward and there is
little in actual dispute. NEPA requires all federal agencies
to assess whether major actions they take may have a significant
impact on the domestic environment. All reasonably probable
impacts must be assessed for such significance. There is no
dispute that OPIC and Ex-Im are federal agencies, and that their
decisions to provide millions of dollars of financing to fossil-fuel
projects are major federal actions. There is also no dispute
that Greenhouse Gas (GHG) emissions and climate change are reasonably
probable impacts of such actions. OPIC and Ex-Im both recognize
this in issuing reports detailing their activities’ contributions
to climate change. Indeed, it is reasonable to assume that GHG
will be emitted from fossil-fuel-fired power plants. OPIC and
Ex-Im themselves admit that direct emissions from projects they
finance amount to over 260 million tonnes of CO2 emissions per
year, or approximately 1.0% of annual global emissions. Likewise,
it is reasonable to assume that GHG will be emitted as a result
of oil field development or transportation projects (pipelines).
Why else recover and transport oil if it will not be consumed?
When, as required by the National Environmental Policy Act (NEPA),
these indirect emissions are counted, GHG emissions from projects
financed by these two agencies alone amount to an astounding
7.3% of annual worldwide emissions.1 1 See Supplemental Declaration
of Richard Heede at ¶13 (Pls.’ Exh. 1). Plaintiffs
attach Mr. Heede’s declaration to provide a full estimate
of direct, indirect and cumulative emissions attributable to
projects financed and insured by OPIC and Ex-Im. Such extra-record
evidence is appropriate when, as here, an agency has failed
to consider relevant factors. See Southwest Ctr. for Biological
Diversity v. United States Forest Serv.
Further, there is no dispute that climate change may have significant
worldwide impacts, including impacts on the domestic U.S. environment.
As OPIC explained in its report Climate Change: Assessing our
Actions: With emissions of CO2 and other GHGs expected to increase
– especially in developing regions – current forecasts
suggest that atmospheric concentrations of CO2 could double
by 2060 with a resulting global average temperature increase
of as much as 2º to 6.5º F over the next century.
Such rapid temperature increase could have potentially grave
economic and environmental impacts. Climate Change: Assessing
Our Actions at 49 (OPIC Administrative Record (“A.R.”)
Tab 1); see also, Ex-Im Climate Change Report at 4 (Ex-Im A.R.
Tab 1) (“The global impact could include changes in weather
patterns and rises in sea level. The changes in turn can result
in major consequences to ecological systems, human health and
socioeconomic sectors such as agriculture, coastal resources,
forests, energy and transportation.”). The only dispute
is whether OPIC and Ex-Im violated NEPA by refusing to prepare
Environmental Assessments (EAs) to determine whether their contributions
to climate change may have significant impacts on the domestic
environment. Neither agency has ever assessed their contributions
to climate change under NEPA, and each adamantly persists in
its refusal to apply NEPA’s procedures. This matter seeks
to resolve whether this refusal is illegal. II. BACKGROUND/STATUTORY
FRAMEWORK. NEPA serves as our nation’s “basic national
charter for protection of the environment.” 40 C.F.R.
§ 1500.1(a). It “declares a broad national commitment
to protecting and promoting environmental quality,” and
ensures such protection though “important ‘action-forcing’
procedures.” Robertson v. Methow Valley Citizens Council,
Global Warming Lawsuit Settlement Check Status
2 All federal agencies must comply with NEPA unless existing
law applicable to the agency’s operations expressly prohibits
or makes compliance impossible. In
order to implement NEPA, the Council on Environmental Quality
(CEQ) issued regulations in 1978 that are binding on all federal
agencies. These regulations define
“agency action” and the process for determining
whether an action or program significantly affects the quality
of the human environment. . Under CEQ
regulations, “actions” include: “new and continuing
activities, including projects and programs entirely or partly
financed, assisted, conducted, regulated, or approved by federal
agencies.” 40 C.F.R. § 1508.18. Major federal actions
that will have a significant effect on the environment require
a detailed Environmental Impact Statement. If it is unclear
whether an action’s
2 This “detailed statement” must include, among
other things, a discussion of: (i) the environmental impact
of the proposed action, (ii) any adverse environmental effects
which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action, (iv) the relationship
between local short-term uses of man’s environment and
the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented. . Pls.’ Mot. for
Summary Judgment
impacts will be significant, CEQ regulations direct federal
agencies to prepare an environmental assessment (EA) to evaluate
the action’s potential impacts. An agency must prepare
an environmental assessment to determine whether an action is
likely to have “significant” environmental effects.
40 C.F.R. § 1501.4(b) (“[i]n determining whether
to prepare an environmental impact statement the Federal agency
shall ... prepare an environmental assessment.”) (emphasis
added); 40 C.F.R. § 1508.9; Klamath-Siskiyou Wildlands
CtIf the agency
concludes, through its environmental assessment, that the impacts
are likely to be significant, it must then prepare a full EIS.
Conversely, if the EA results in a finding of no significant
impact, an EIS is not required. The Ninth Circuit has previously
emphasized that “[a]n agency cannot avoid its statutory
responsibilities under NEPA merely by asserting that an activity
it wishes to pursue will have an insignificant effect on the
environment.” Alaska Ctr. for the Environment v. United
States Forest Service, 189 F.3d 851, 859 (9th Cir. 1999). It
must prepare an EA to make this determination.
4
As part of any environmental assessment an agency must consider
all reasonably foreseeable impacts of the proposed action, including
all foreseeable direct and indirect impacts of the action, and
the cumulative impacts of past, present, and reasonably foreseeable
future actions.
4 In addition, the agency must consider reasonable alternatives
to the proposed action, including a “no action”
alternative,; and it must provide
an opportunity for public review and input on the assessment.
40 C.F.R. § 1506.6. CEQ regulations also direct federal
agencies to prepare “programmatic” NEPA evaluations
when a series of related actions may have significant environmental
effects. Under CEQ regulations, an agency’s adoption of
a program or approval of a group of concerted actions to implement
a specific policy or executive directive is a major federal
action. 40 C.F.R. § 1508.18(b)(3). For such systematic
and connected actions CEQ regulations direct each agency to
determine, in compliance with NEPA, whether such actions may
have significant impact on the human environment, and if so,
to prepare a programmatic EIS. See 40 C.F.R. § 1508.18(b).
CEQ regulations likewise direct a programmatic EIS to be prepared
where distinct individual projects have similar cumulative impacts
(so-called “cumulative actions”). See
4 Direct impacts are defined as those impacts “which are
caused by the action and occur at the same time and place.”
40 C.F.R. § 1508.8(a). Indirect impacts, on the other hand,
include those impacts “which are caused by the action
and are later in time or farther removed in distance, but are
still reasonably foreseeable. Indirect effects may include growth
inducing effects and other effects related to induced changes
in the pattern of land use, population density or growth rate,
and related effects on air and water and other natural systems,
including ecosystems.” 40 C.F.R. § 1508.8(b). Cumulative
impacts refer to the “impact on the environment which
results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions
regardless of what agency or person undertakes such action.
Cumulative impacts can result from individually minor but collectively
significant actions taking place over a period of time.”
40 C.F.R. § 1508.7.
“Cumulative actions” are defined as actions “which
when viewed with other proposed actions have cumulatively significant
impacts and should therefore be discussed in the same impact
statement.” 40 C.F.R. § 1508.25. Together, these
provisions and procedures serve an important purpose: they ensure
that environmental considerations will be infused into the ongoing
programs and actions of the federal government. High Sierra
Hikers Ass'n v. Blackwell, 381 F.3d 886, 900 (9th Cir. 2004).
NEPA’s procedures guarantee that an agency will have available,
and will carefully evaluate, detailed information concerning
the potentially significant environmental impacts of its actions.
They also ensure that the relevant information will be made
available to the public, so that the public may meaningfully
participate in the agency decisionmaking process. Robertson,
490 U.S. at 349. In this case, both OPIC and Ex-Im refuse to
comply with these important policies and procedures; Plaintiffs
seek to compel each agency to satisfy its obligations under
NEPA. III. OPIC AND EX-IM HAVE TAKEN MAJOR FEDERAL ACTIONS WHICH
MAY AFFECT THE DOMESTIC ENVIRONMENT. OPIC and Ex-Im have each
taken major federal actions which may affect the domestic environment,
but neither agency has prepared an individual or programmatic
environmental assessment to evaluate whether the impact of these
actions will be significant. The failure to prepare any NEPA
evaluation for these major federal actions violates NEPA. The
facts supporting this allegation are clear and undisputed: (1)
both OPIC and Ex-Im are federal agencies subject to NEPA; (2)
each Defendant has taken, and continues to take, major federal
actions which individually, cumulatively, and indirectly may
have significant environmental impacts on the domestic environment;
(3) each agency
Pls.’ Mot. for Summary Judgment
has acknowledged a reasonably foreseeable link between its actions,
increased GHG emissions, and climate change, which may have
significant environmental impacts on the domestic U.S. environment;
and (4) each Defendant determined – without preparing
an EA or any other NEPA evaluation – that its energy programs,
in the “aggregate” or on a “portfolio-wide”
basis, would have a cumulative but insignificant impact. See
Ex-Im Climate Change Report at 33 (Ex-Im A.R. Tab 1); OPIC’s
Response to Plaintiffs’ Demand Letter (OPIC A.R. 4368-70).
NEPA explicitly requires federal agencies to use an environmental
assessment to determine whether impacts of a proposed action
may be significant. 40 C.F.R. § 1508.9. That determination
– whether the impact of a major federal action is significant
– is the purpose of an EA. See id. Contrary to the agencies’
suggestion, bald claims of insignificance made wholly outside
of the NEPA process do not obviate their NEPA duties. Emissions
from Defendants’ projects have reasonably foreseeable
direct, indirect and cumulative impacts on the Earth’s
climate, and OPIC and Ex-Im must prepare EAs to evaluate the
significance of these reasonably foreseeable impacts on the
domestic U.S. environment. A. Both OPIC and Ex-Im are Federal
Agencies Subject to NEPA. 1. Ex-Im is a Federal Agency Subject
to NEPA. The Ex-Im Bank is “an agency of the United States
of America . . . [whose] objects and purposes . . . [are] to
aid in financing and to facilitate exports of goods and services,
imports, and the exchange of commodities and services between
the United States and . . . any foreign country . . . .”
12 U.S.C. § 635. NEPA specifies that “major federal
actions” include “projects or programs entirely
or partly financed, assisted, . . . or approved by
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
federal agencies.” 40 C.F.R. § 1508.18(a). Ex-Im
thus promulgated rules to implement NEPA to the extent that
any of its projects or programs may have a significant impact
on the domestic environment. 12 C.F.R. pt. 408. See also 12
U.S.C. § 635i-5(a) (authorizing Ex-Im Bank to consider
and withhold assistance based on “potential environmental
effects of a project.”). These rules recognize that “historically”
few of Ex-Im’s projects involve effects on the United
States environment. 12 C.F.R. § 408.3. However, they clearly
and affirmatively call for NEPA’s application “where
Eximbank financing of U.S. exports may affect environmental
quality in the United States, its territories or possessions.”
Id.; 12 C.F.R. § 408.4(b) (Environmental Assessment required
for financing of projects that may affect domestic environment).
Ex-Im’s NEPA rules specify that an EA is normally required
for direct lending that assists projects that may significantly
affect the domestic environment. 12 C.F.R. §§ 408.4(b)
and 408.6. These rules further require that Ex-Im independently
determine whether an EA or EIS is required for any other agency
proposal. 12 C.F.R. § 408.6(b). Consistent with NEPA, such
an “agency proposal” must include major actions
(projects or programs) that may have a significant effect on
the domestic environment. 40 C.F.R. § 1500.3. See also
Ex-Im Bank Environmental Procedures at ¶ 12 (Ex-Im A.R.
Tab 2). 2. OPIC is a Federal Agency Subject to NEPA. OPIC, like
Ex-Im, engages in “major federal actions” as defined
by 40 C.F.R. § 1508.18(a). OPIC is “an agency of
the United States of America” created in order to “mobilize
and facilitate the participation of United States private capital
and skills in the economic and social development of less developed
countries and areas, and countries in transition from nonmarket
to market economies.” 22 U.S.C. § 2191. OPIC has
procedures
to implement Executive Order 121145 and its separate statutory
obligations under 22 U.S.C. § 2151(p), which require OPIC
to consider the environmental impacts of its actions. OPIC has
not promulgated rules specifically implementing NEPA for projects
that have domestic environmental effects. However, as this Court
properly concluded in its August 23, 2005 Order, OPIC’s
procedures requiring consideration of extraterritorial impacts
do not displace OPIC’s obligations under NEPA. See August
23, 2005 Order at 13 (“Although Defendants argue that
the legislative history of OPIC’s statute evinces the
same Congressional intent to displace NEPA as in Merrell and
Douglas County, the record reveals otherwise.”).
6 B. Ex-Im and OPIC have Taken Major Federal Actions Subject
to NEPA. Both OPIC and Ex-Im have approved an overwhelming number
of direct loans and financial guarantees for projects that directly
or indirectly result in GHG emissions,
5 In 1979, the President issued Executive Order 12114, titled
“Environmental Effects Abroad of Major Federal Actions.”
The Order requires federal agencies to put into place procedures
for reviewing and considering their extraterritorial environmental
impacts. It applies to agencies taking major federal actions
that have “significant effects on the environment outside
the geographical borders of the United States and its territories
and possessions.” E.O. 12114. 6 OPIC continues to contest
this conclusion, and Plaintiffs anticipate that OPIC will attempt
to introduce additional documents – documents that due
diligence could have previously uncovered – in an effort
to re-litigate this issue. The Court properly decided this matter
in its August 23, 2005 Order. The plain language of NEPA clearly
applies to OPIC, and the Court should not engage in the selective
review of documents that OPIC will seek to introduce. Such methods
of statutory construction are only appropriate when the plain
language of the statute is ambiguous; that is not the case here,
and OPIC does not suggest otherwise. Hartford Underwriters Ins.
Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (“When
the statute’s language is plain, the sole function of
the courts—at least where the disposition required by
the text is not absurd—is to enforce it according to its
terms.”) (internal quotation marks omitted). Simply put,
the slew of documents which Plaintiffs anticipate OPIC will
attempt to produce do not, and cannot, support the agency’s
purported exemption from NEPA. Plaintiffs address OPIC’s
expected effort to re-litigate this issue in further detail
below. See Section V, infra. Pls.’ Mot. for Summary Judgment
C
including oil and gas fields, pipelines, oil refineries and
power plants. Each agency’s actions to approve financial
support for these projects constitute major federal actions
subject to NEPA. 1. Ex-Im has Taken Major Federal Actions Subject
to NEPA. The Government Accounting Office (GAO) estimates that
between 1990 and 2001 Ex-Im approved 474 separate transactions
for fossil fuel projects, providing more than $25 billion in
loans and financial guarantees to energy projects worldwide.
Export-Import Bank, Energy Financing Trends Affected by Various
Factors, U.S. General Accounting Office, September 2002 at 5
(Ex-Im A.R. Tab 7). With respect solely to power plants, Ex-Im’s
own accounting indicates that it approved 86 separate transactions
between 1987 and 1999, issuing more than $7.8 billion in support
for projects in the thermal power plant sector alone. Ex-Im
Climate Change Report at 26 (Ex-Im A.R. Tab 1). Ex-Im estimates
that these projects are responsible for 204 million tonnes of
direct CO2 emissions annually. Id. at 27. Since 1999, Ex-Im
has approved at least 45 additional transactions for fossil
fuel projects that contribute to climate change – providing
another $6 billion in financial assistance for oil and gas development
projects and power plants. See Ex-Im A.R. Tab 28 (summary of
Ex-Im Bank supported fossil-fuel projects between 2000-2003);
see also, Ex-Im A.R. Tabs 24, 25, 26, and 27 (providing documentation
on individual projects approved in 2000, 2001, 2002, and 2003,
respectively). Individual transactions approved by Ex-Im during
this four-year period included, among other major commitments,
a $200 million loan guarantee in connection with development
of the Chad-Cameroon oil pipeline, a $300 million loan guarantee
in connection with development of the Cantarell oil fields in
Pls.’ Mot. for Summary Judgment
Mexico, and a $627.7 million loan guarantee in connection with
development of the Hamaca oil project in Venezuela. See Defendants’
Answer to Plaintiffs’ Second Amended Complaint at ¶¶
163, 171, 177. Ex-Im estimates that direct emissions associated
with these 45 projects will result in more than 7 million tonnes
of CO
2 annually. Ex-Im A.R. Tab 28 at 2. Ex-Im has not estimated
indirect emissions associated with operation of these facilities.
In order to facilitate these transactions, Ex-Im operates specific
programs for financing projects in the oil and gas sector as
well as the thermal power plant sector – activities that
the agency has collectively described as its “energy”
program. See Ex-Im A.R. Tab 3 at 10 (page 10 of Ex-Im’s
1999 Annual Report); Ex-Im A.R. Tab 4 at sheet 3 (under the
“energy” heading Ex-Im’s 2000 Annual Report
states “Ex-Im Bank supported 25 transactions involving
U.S. exports to foreign energy production and transmission projects
in FY 2000, including electric generation and transmission,
and oil and gas exploration and refineries”); Ex-Im A.R.
Tab 5 at 14 (describing FY 2001 energy transactions); Ex-Im
A.R. Tab 6 at 19 (describing FY 2002 energy transactions). It
is undisputed that Ex-Im is continuing to finance such projects.
Each of the individual actions in Ex-Im’s energy program
constitutes a major federal action subject to NEPA. 40 C.F.R.
§ 1508.18(a) (“major federal actions” include
“projects or programs entirely or partly financed, assisted,
. . . or approved by federal agencies”); see also, Mason
County Medical Ass'n v. Knebel, 563 F.2d 256, 259 (6th Cir.
1977) (REA assumed EIS would be required for potential loan
guarantee); Crosby v. Young, 512 F. Supp. 1363, 1370 (D. Mich.
1981) (same); Woida v. United States, 446 F. Supp. 1377, 1381
(D. Minn. 1978) (“because financing the CU project [with
loans and
Pls.’ Mot. for Summary Judgment
loan guarantees] constitutes a major federal action, the REA
is required to comply with the provisions of the National Environmental
Policy Act…”); Silva v. Romney, 473 F.2d 287 (1st
Cir. 1973) (assumed without argument that EIS required when
HUD provided mortgage guarantee). Ex-Im has not conducted an
EA or an EIS for a single one of these transactions, nor has
it evaluated the cumulative environmental impact of its energy
program in a programmatic NEPA document. 2. OPIC has Taken Major
Federal Actions Subject to NEPA. Like Ex-Im, OPIC has also approved
an extensive number of direct loans and financial guarantees
for projects that result in GHG emissions, including oil and
gas fields, pipelines, oil refineries and power plants. Between
1990 and 2000, OPIC provided financial support to at least 52
power projects. Assessing our Actions at 15 (OPIC A.R. Tab 1).
OPIC estimated that these projects –which it described
as its “power portfolio”– were responsible
for more than 56 million tons in direct CO2 emissions on an
annual basis. Id. at 16. Since 2000, OPIC has approved at least
12 additional fossil fuel power projects, which OPIC estimates
will contribute 23.8 million tonnes of direct CO2 emissions
annually. Defendants’ Answer to Plaintiffs’ Second
Amended Complaint at ¶ 206. As part of its “power
portfolio” OPIC also operates a specific program to provide
financial support to projects in the oil and gas sector. As
explained in OPIC’s “Program Handbook,” the
agency operates several special insurance programs, which are
“tailored to meet the specific insurance needs associated
with certain types of international investments.” OPIC
A.R. Tab 3 at 000054 (page 11). Among these “special insurance
programs” is an oil and gas program that is specifically
designed to “encourage petroleum exploration, development
and production in developing countries.” Id. at 15. Individual
oil
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
12
and gas projects approved by OPIC include, among other major
commitments, a $250 million insurance guarantee in connection
with development of the Chad-Cameroon oil pipeline, a $116 million
loan guarantee in connection with development of an oil and
gas field off the coast of Sakhalin Island in Russia, and a
two loans totaling over $350 million for development of the
West Seno I & II oil and gas development projects in Indonesia.
Defendants’ Answer to Plaintiffs’ Second Amended
Complaint at ¶¶ 165, 182, 177. OPIC has never estimated
the indirect CO
1
2
2 emissions attributable to oil and gas development facilities
supported by OPIC. It is also undisputed that OPIC is continuing
to fund such projects. Each of the individual actions in OPIC’s
energy program – or “power portfolio” - constitutes
a major federal action requiring compliance with NEPA. 40 C.F.R.
§ 1508.18(a) (“major federal actions” include
“projects or programs entirely or partly financed, assisted,
. . . or approved by federal agencies.”). See also, Mason
County Medical Ass'n v. Knebel, 563 F.2d 256, 259 (6th Cir.
1977) (REA assumed EIS would be required for potential loan
guarantee); Crosby v. Young, 512 F. Supp. 1363, 1370 (D. Mich.
1981) (same); Woida v. United States, 446 F. Supp. 1377, 1381
(D. Minn. 1978) (“because financing the CU project [with
loans and loan guarantees] constitutes a major federal action,
the REA is required to comply with the provisions of the National
Environmental Policy Act…”); Silva v. Romney, 473
F.2d 287 (1st Cir. 1973) (assumed without argument that EIS
required when HUD provided mortgage guarantee). OPIC has not
conducted an EA or EIS for a single one of these transactions,
nor has it evaluated the cumulative environmental impact of
its power portfolio in a programmatic NEPA document.
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
13
C. Defendants Concede that Climate Change and Resulting Domestic
Impacts are a Reasonably Foreseeable Impact of Their Actions,
and Case Law Supports that Conclusion.
1
2
NEPA requires an agency to consider all reasonably foreseeable
environmental effects of a proposed major federal action, including
both direct and indirect effects.7 40 C.F.R. §§ 1508.8,
1508.25(c); Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975).
“As in other legal contexts, an environmental effect is
‘reasonably foreseeable’ if it is ‘sufficiently
likely to occur that a person of ordinary prudence would take
it into account in reaching a decision.’” Mid States
Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520,
548 (8th Cir. 2003) (quoting Sierra Club v. Marsh, 976 F.2d
763, 767 (1st Cir. 1992)). Defendants here concede that increased
GHG emissions are a reasonably foreseeable effect of their decisions
to finance and insure projects in each agency’s energy
programs – including coal, oil, and gas power plants,
and oil and gas fields. See e.g., Ex-Im Climate Change Report
at 29 (Ex-Im A.R. Tab 1) (noting that “the 425 million
tons of CO2 that is predicted to be produced by Ex-Im Bank supported
power projects by 2012 will cause Ex-Im Bank’s contribution
to global CO2 production to peak at 1.4%”) (emphasis added);
Assessing Our Actions at 12 (OPIC A.R. Tab 1) (“in order
to assess the cumulative GHG and climate implications of its
activities, OPIC evaluated the number and types of projects
that have received finance or political risk insurance support”)
(emphasis added).
7 Adverse environmental “effects” include both “direct
effects” and “indirect effects.” 40 C.F.R.
§ 1508.8. Indirect effects are defined as those that “are
caused by the action and are later in time or farther removed
in distance, but are still reasonably foreseeable.” Id.
“Indirect effects may include ... effects on air and water
and other natural systems, including ecosystems.” Id.
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
14
OPIC and Ex-Im likewise concede that GHG emissions contribute
to climate change, and that climate change may result in significant
worldwide environmental impacts. In Assessing Our Actions, OPIC
explains:
Climate change represents a serious global environmental challenge.
Since the dawn of the industrial age, man has been emitting
increasing quantities of heat-absorbing GHGs primarily through
the combustion of fossil fuels. As a result, atmospheric concentrations
of CO2 – the most important GHG – are now at their
highest levels in more than 160,000 years and global temperatures
are rising. With emissions of CO2 and other GHGs expected to
increase – especially in developing regions – current
forecasts suggest that atmospheric concentrations of CO2 could
double by 2060 with a resulting global average temperature increase
of as much as 2º to 6.5º F over the next century.
Such rapid temperature increase could have potentially grave
economic and environmental impacts. Assessing Our Actions at
49 (OPIC A.R. Tab 1).8 Ex-Im similarly recognizes the contribution
of GHG emissions to climate change. Ex-Im Climate Change Report
at 3 (Ex-Im A.R. Tab 1) (“the information presented …
leads one to conclude that GHG concentrations have indeed risen
and that there is a reasonable likelihood that the increased
concentrations of these gases will result in increased average
global temperatures during
8 OPIC’s Briefing Book for the White House Conference
on Climate Change further emphasized: The scientific consensus
is clear that (1) greenhouse gases are rapidly building up in
the atmosphere as a result of human actions; (2) that these
increased concentrations will change our climate; and (3) that
these changes could have serious adverse and disruptive consequences.
. . . In addition, compelling scientific evidence indicates
that the human effect on climate change is apparent today. .
. . Scientists agree that global warming and resulting climate
disruptions could seriously harm human health. . . . increase
the incidence and intensity of floods and droughts, raise sea
levels enough to inundate up to 7,000 square miles of U.S. coastline,
decrease food production in some of the world’s poorest
nations, and threaten the survival of many plant and animal
species. OPIC A.R. Tab 12 at 3610. Pls.’ Mot. for Summary
Judgment
Civ. No. 02-4106 (JSW)
15
the coming decades”). And Ex-Im likewise acknowledges
the potential for climate change to cause significant environmental
impacts:
[t]he direct regional environmental impact of such a climate
change could include changes in temperature and precipitations
levels, with corresponding changes to the properties and moisture
content of soil. The global impact could include changes in
weather patterns and rises in sea level. The changes in turn
can result in major consequences to ecological systems, human
health and socioeconomic sectors such as agriculture, coastal
resources, forests, energy and transportation. Id. at 4. These
reports both demonstrate that Defendants’ actions may
have an impact on the domestic environment. Each agency’s
recognition that climate change may result in worldwide environmental
impacts necessarily acknowledges that the domestic U.S. environment
may be affected as well.9 In fact, neither OPIC nor Ex-Im disputes
that their actions may have impacts on the domestic environment;
rather, they claim that the extent of the impacts will be insignificant.
See Ex-Im Climate Change Report at 33 (Ex-Im A.R. Tab1) (“[Ex-Im]
has not determined that Ex-Im Bank actions to support power
projects could represent a significant adverse effect on the
environment of the US”); Assessing our
9 Outside of their own reports, each agency’s administrative
record contains references to potential climate change impacts
in the U.S. See, e.g., OPIC A.R. Tab 12 at 3610 (“Scientists
agree that global warming and resulting climate disruptions
could . . . raise sea levels enough to inundate up to 7,000
square miles of U.S. coastline.”); Ex-Im A.R. Tab 45 at
sheet 4 (explaining that among “potential effects of global
warming” a “estimated 50 cm rise in sea level by
the year 2100, could inundate more than 5,000 square miles of
dry land and an additional 4000 square miles of wetlands in
the U.S.”). The conclusion that the U.S. domestic environment
will suffer environmental harm as a result of the Defendants’
contributions to climate change is further supported by Plaintiffs’
expert testimony. See, e.g., Declaration of Dr. Michael MacCracken
at ¶ 22 (Exhibit 2 in Pls.’ Opp’n to Defs.’
Mot. for Summary Judgment) (noting that the “location
of emission is not important in considering the potential climatic
impacts,” and explaining that “emissions of CO2
anywhere on Earth affect the climate everywhere on Earth, causing
consequences for everyone. … In that respect, emissions
outside of the U.S. will contribute to global warming impacts
in the U.S.”). Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
16
Actions at 6 (OPIC A.R. Tab 1) (“OPIC is not a substantial
contributor to global GHG emissions or climate change”).
1
10 Indeed, it is only the extent to which Defendants’
actions will affect the U.S. domestic environment that is unknown,
and NEPA requires that OPIC and Ex-Im prepare an EA to answer
that question. 40 C.F.R. § 1501.4(b); see also, Mid States
Coalition for Progress, 345 F.3d at 549 (“When the nature
of the effect is reasonably foreseeable but its extent is not
… the agency may not simply ignore the effect.”).
Courts have expressly held that NEPA requires federal agencies
to evaluate the impact of CO2 emissions attributable to federal
actions, even for projects where the total emissions were significantly
smaller than the cumulative amounts at issue here. For example,
in Mid States Coalition, 345 F.3d at 532, plaintiffs challenged
the Surface Transportation Board’s approval of a new rail
line to service coal mining operations in Wyoming's Powder River
Basin. Plaintiffs alleged that the Board violated NEPA by failing
to consider the indirect impacts resulting from eventual combustion
of coal delivered by the rail line. Id. at 549. The court agreed,
finding that the eventual
10 As discussed further below, OPIC and Ex-Im’s claim
of “insignificance” is based on a legally inadequate
assessment of the effect of their actions. See Section IV(B),
infra. In evaluating their contributions to climate change,
both agencies have only considered the direct emissions associated
with their activities - neither has assessed indirect emissions,
which are a relevant factor under NEPA. 40 C.F.R. § 1508.8(b).
When the full spectrum of direct and indirect emissions are
cumulatively evaluated – as required by NEPA – the
extent of each agency’s contribution to global greenhouse
gas emissions is exponentially greater. OPIC and Ex-Im acknowledge
the direct emissions of the projects they finance and insure
amount to approximately 1.0% of current annual global CO2 emissions,
and will rise to almost 2.0% of total annual global CO2 emissions
by 2012-2015. See Assessing Our Actions at 19 (OPIC A.R. Tab
1) (noting that OPIC emissions will rise to 0.43% of global
emissions in 2015); Ex-Im Climate Change Report at 29 (Ex-Im
A.R. Tab 1) (noting that 2001 Ex-Im emissions will rise to 1.4%
of global emissions by 2012). An evaluation of direct and indirect
emissions demonstrates that OPIC and Ex-Im projects are, in
fact, currently responsible for more than 7.3% of global annual
CO2 emissions. See Supplemental Declaration of Richard Heede,
at ¶13 (Pls.’ Exh. 1).
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
17
combustion of the coal was not “speculative” –
as the Board claimed – but instead “almost certain.”
Id. Based on the fact that combustion of the fuel was reasonably
foreseeable, the court concluded that the defendant was legally
required to consider the project’s indirect CO
2 emissions in its NEPA analysis. Id. Similarly, in Border Power
Plant Working Group v. DOE, 260 F. Supp. 2d 997 (S.D. Cal. 2003),
the court found that the Department of Energy (DOE) was required
to evaluate the GHG emissions of a single 500 MW gas-turbine
power plant– despite the fact that the plant’s contribution
to climate change may have been minor, and despite the fact
that the plant was located in Mexico. See id. at 1029 (“Because
these emissions have potential environmental impacts and were
indicated by the record, the Court finds that the EA’s
failure to disclose and analyze their significance is counter
to NEPA.”). The CO2 emissions resulting from the 500 MW
power plant at issue in Border Power are dwarfed by both OPIC
and Ex-Im’s individual energy portfolios, yet for purposes
of NEPA, DOE’s failure to consider these relatively minor
emissions still rendered its decision inadequate. Id. Measured
against these projects, OPIC and Ex-Im’s refusal to evaluate
the reasonably foreseeable impact of GHG emissions in an environmental
assessment is clearly inconsistent with each agency’s
obligations under NEPA. D. Defendants Concede that Each Agency’s
Energy Projects Have Cumulative Impacts. CEQ regulations also
require a programmatic evaluation where distinct individual
projects have similar cumulative impacts – so-called cumulative
actions. 40 C.F.R § 1508.25. “Cumulative actions”
are defined as actions “which when viewed with other proposed
actions have cumulatively significant impacts and should therefore
be discussed
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
18
in the same impact statement.” 40 C.F.R. § 1508.25.11
If substantial questions are raised as to whether the group
of actions will have a cumulative impact, a single EA must be
prepared to determine the significance of those cumulative actions.
See Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 993
(9th Cir. 2004) (cumulative NEPA analysis must be “done
in a single document when the record raises ‘substantial
questions’ about whether there will be ‘significant
environmental impacts’ from the collection of anticipated
projects.”); Blue Mountains Biodiv. Project v. Blackwood,
161 F.3d 1208, 1215 (9th Cir. 1998); Thomas v. Peterson, 753
F.2d 754, 759 (9th Cir. 1985).
1
20
In this case, both agencies readily concede that each individual
project adds to the cumulative impact on climate change. Indeed,
each agency has conceded that the impact of these projects should
be evaluated at the program or portfolio level. Thus OPIC “recognized
that carbon dioxide emissions and climate change impacts are
global and that the assessment of such impacts should not be
limited to the project-specific level, but must be done on a
cumulative basis.” OPIC Press Release, Landmark OPIC Report
Shows Way for Government and Business to Demonstrate Accountability
for Climate Impacts, October 30, 2000 (OPIC A.R. Tab 17 at 4384).
Based on this recognition, OPIC prepared an analysis of cumulative
carbon dioxide emissions associated with the agency’s
“power portfolio” including its investment in and
insurance of power plants. Assessing Our Actions at 12, 16-20
(OPIC A.R. Tab 1). OPIC, however, did not prepare an EA of its
energy portfolio. It did not consider the impacts of
11 Cumulative impacts are likewise described as “the impact
on the environment which results from the incremental impact
of the action when added to other past, present, and reasonably
foreseeable future actions …. Cumulative impacts can result
from individually minor but collectively significant actions
taking place over a period of time.” 40 C.F.R. §
1508.7.
Pls.’ Mot. for Summary Judgment
indirect emissions – such as those associated with eventual
combustion of fossil fuel extracted from projects financed or
insured by OPIC. See 40 C.F.R. § 1508.8 (NEPA analysis
must include consideration of “indirect effects”).
OPIC also did not consider alternatives to its power portfolio
investments, 40 C.F.R. § 1502.14; did not invite comments
from other federal agencies, including EPA, see 40 C.F.R. §
1503.1; and did not publish its analysis for public comment.
Id. Ex-Im has also acknowledged that carbon dioxide emissions
associated with its projects contribute to global warming, and
has determined that the impact of its own energy program investment
must be assessed at an “aggregate” level: “the
aggregate contribution from … global point sources of
[CO2] from manmade activity appears to be triggering some effect
on earth’s climate. Hence Ex-Im Bank’s ‘role’
in the [Greenhouse Gas] emission and climate change issue must
be assessed by examining the aggregation of its actions taken
to finance projects which produce CO2 emissions.” Ex-Im
Climate Change Report at 33 (OPIC A.R. Tab 1). Ex-Im, like OPIC,
conducted a limited analysis of the aggregate direct impact
of its actions on climate change. Id. But Ex-Im also refused
to use NEPA procedures for this analysis. It did not conduct
an EA; it did not consider indirect emissions associated with
combustion of fossil fuels; it failed to present alternatives
to its energy program investments; it did not invite comments
from other federal agencies with expertise in the area; and
it failed to publish its limited analysis for public comment.
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
20
IV. OPIC AND EX-IM HAVE VIOLATED NEPA. 1
2
A. OPIC and Ex-Im Must Each Prepare An Environmental Assessment
to Determine Whether the Impacts of their Actions will be Significant.
It is undisputed that neither agency has prepared an individual
or programmatic EA or EIS to assess the significance of the
environmental impacts associated with each agency’s actions
or portfolios. See Defs’ Reply to Pls.’ Opp’n
to Defs’ Mot. for Summary Judgment at 18 (“As Plaintiffs
point out, neither agency has conducted a NEPA analysis for
the projects described in the Complaint or for a purported program
supporting energy projects. There could be no FONSI marking
the conclusion of a NEPA process that never took place.”).
Nor have the agencies prepared individual EAs for each project
that consider the direct, indirect, and cumulative impacts of
all reasonably foreseeable past, present, and future actions.
See id. Instead, both agencies have declared that they have
no NEPA obligation unless they first determine that their actions
“could, in fact, cause a significant impact.” Ex-Im
Climate Change Report at 33 (Ex-Im AR Tab 1); OPIC’s Response
to Plaintiffs Demand Letter (OPIC AR 4368-70) (arguing that
NEPA review is only triggered if “OPIC’s contribution
to GHGs meets the ‘significance’ test”). This
position – which is the only justification either agency
offers in the record for not complying with NEPA – is
patently wrong. Under NEPA, an environmental assessment must
be prepared in order to make an initial determination of “significance.”
40 C.F.R. § 1501.4(b) (“In determining whether to
prepare an environmental impact statement the Federal agency
shall ... prepare an
serve no purpose – they would never be prepared, and CEQ’s
extensive rules on when and how to prepare EAs would be superfluous.
NEPA demands more. “An agency cannot avoid its statutory
responsibilities under NEPA merely by asserting that an activity
it wishes to pursue will have an insignificant effect on the
environment.” Alaska Ctr. for the Environment v. United
States Forest Service, 189 F.3d 851, 859 (9th Cir. 1999). Quite
simply, an EA must be prepared for this determination, and a
finding of no significant impact may only be made after preparation
of an EA. See 40 C.F.R. § 1508.13 (“[finding of no
significant impact] shall include the environmental assessment
…”) (emphasis added). The failure to prepare either
individual or programmatic EAs violates each agency’s
legal obligations under NEPA. B. The Climate Change Reports
Defendants have Produced Fail to Consider Relevant Factors,
are Arbitrary and Capricious, and do not Satisfy Defendants’
NEPA Obligations. The reports produced by each agency –
OPIC’s Climate Change: Assessing our Actions (OPIC A.R.
Tab 1), and Ex-Im Bank’s Role in Greenhouse Gas Emissions
and Climate Change (Ex-Im A.R. Tab 1) – do not, and cannot,
satisfy the agencies’ obligations under NEPA. This is
not a trivial dispute over the form of each agency’s evaluation
of climate change impacts – the deficiencies in each report
are substantive and significant. NEPA requires, among other
things, that each agency take a “hard look” at all
reasonably foreseeable impacts of a proposed action, including
both direct and indirect effects of the action, and the cumulative
impacts of past, present, and reasonably foreseeable future
actions. 40 C.F.R. §§ 1508.8, 1508.7. In addition,
the agency must consider reasonable alternatives to the proposed
action, including a “no action” alternative, 40
C.F.R. § 1508.9(b); and must provide an opportunity for
public review and input on the
Pls.’ Mot. for Summary Judgment
assessment. 40 C.F.R. § 1506.6. And these procedural obligations
place a “continuing” responsibility on federal agencies
to consider environmental effects of on-going federal actions,
particularly when the extent of a action’s impacts are
uncertain, and the science on the matter is evolving. 40 C.F.R.
§§ 1508.27(b)(5); 1509.2(c)(1); see also, Utahns for
Better Transp. v. United States DOT, 180 F. Supp. 2d 1286, 1288-1289
(D. Utah 2001) (“NEPA imposes a continuing duty upon the
agencies to evaluate new and changed information, and to supplement
earlier analysis with the consideration of more recent data.”).
In spite of these clear obligations, each agency’s one-time
evaluation of climate change simply ignore critical aspects
of NEPA’s basic requirements. Neither agency considered
the impact of indirect emissions; indeed, each agency explicitly
limited its evaluation to direct emissions. See Assessing our
Actions at 13-15 (OPIC A.R. Tab 1) (explaining OPIC’s
methodology for evaluating direct emissions from power plants);
Ex-Im Climate Change Report at ii (Ex-Im A.R. Tab 1)(“[Ex-Im]
only addressed Bank supported projects that directly emit GHG.
‘Equivalent’ amounts of GHG associated with fuel
‘made available’ from extraction projects were not
counted.”). By refusing to consider indirect effects,
each agency has failed to consider a relevant factor, and consequently
has not fully evaluated the impacts of their actions, as required
by NEPA. Nor did either agency actually evaluate the potential
domestic impacts of its actions. Each agency acknowledged that
climate change could have significant worldwide impacts, but
did not discuss, let alone evaluate, the potential scope of
those impacts on the domestic U.S. environment. NEPA requires
that each agency take a “hard look” at such impacts.
Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 963 (9th
Cir. 2002)
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
23
1
(“Agencies must adequately consider the project's potential
impacts and the consideration given must amount to a ‘hard
look’ at the environmental effects.”). Furthermore,
both OPIC & Ex-Im failed to provide any evaluation of alternatives
to the proposed actions, including a “no action”
alternative. Consideration of alternatives has been described
as the “heart” of NEPA analysis. 40 C.F.R §
1502.14. Presentation of alternatives in an EA provides the
public important information on the nature of a project’s
environmental impacts, and is an indispensable component of
NEPA’s broader purpose. Sierra Club v. Marsh, 744 F.Supp.
353, 364 (D. Me. 1990) (“the ‘reasonable alternatives’
analysis is designed to provide decisionmakers and the public
with a project ‘benchmark’ against which the environmental
costs and economic benefits of the project may be measured and
less environmentally expensive alternatives to the proposed
action may be identified”) (emphasis added). See also
Forty Most Asked Questions Concerning CEQ's NEPA Regulations,
46 Fed. Reg. 18026, # 3 (1981). Such an analysis is entirely
absent from the reports produced by OPIC and Ex-Im. Finally,
neither agency provided opportunity for public comment on the
reports they produced, nor sought comments from other government
agencies with expertise in the area, as required by NEPA. The
Defendants’ failure to subject their reports to public
scrutiny undermines the very purpose of NEPA, and deprives organizations
and individuals, like the Plaintiffs, the opportunity to influence
government decisions of environmental significance. Indeed,
courts have previously explained that preventing public involvement
constitutes a direct environmental harm under NEPA. The “…harm
consists of the added risk to the environment that takes place
when governmental decisionmakers make up their minds without
having before them an analysis (with prior
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
24
public comment) of the likely effects of their decision upon
the environment.” Sierra Club v. Marsh, 872 F.2d at 500-501
(emphasis in original). Such is the case here.
1
Despite these substantive and procedural deficiencies, OPIC
and Ex-Im continue to rely on their wholly inadequate, one-time,
evaluation of climate change as justification for not applying
NEPA, and as justification for continuing to approve projects
which contribute to climate change.12 Defendants’ climate
change reports do not, and cannot, satisfy each agency’s
continuing obligations. NEPA demands more. 12 Each agency’s
environmental evaluations of individual projects – to
the extent that there are any project-specific environmental
evaluations in the record – suffer from even more serious
problems than the climate change reports prepared by OPIC and
Ex-Im. For example, with respect to some of the individual projects
listed in Plaintiffs’ Complaint, there are no environmental
evaluations of any kind in the record. OPIC’s administrative
record contains no environmental analysis for the Chad-Cameroon
oil pipeline project, the Sakhalin oil field project, or the
West Seno I & II projects. There is no evaluation of each
project’s contribution to climate change; no “hard
look” at potential climate change impacts on the domestic
environment; no discussion of each project’s indirect
impacts; no evaluation of the project’s cumulative impacts;
no evaluation of alternatives to the proposed project; no discussion
of potential mitigation measures, and no NEPA process to allow
the public to evaluate and comment on the environmental impacts
of the project before OPIC committed to funding each project.
Ex-Im’s administrative record contains some limited environmental
analysis of individual projects, but even these reports fail
to meet the basic requirements of NEPA: there is no “hard
look” at potential climate change impacts on the domestic
environment; no discussion of each project’s indirect
contributions to climate change; no evaluation of the project’s
cumulative impacts, no evaluation of alternatives to the proposed
project; no discussion of potential mitigation measures; and
no NEPA process to allow the public to evaluate and comment
on the environmental impacts of the project before Ex-Im committed
to funding each project. Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
25
V. OPIC IS NOT EXEMPT FROM NEPA.13 1
By default, NEPA plainly applies to all federal agencies. There
are only two possible exceptions to this rule: (1) if it is
“impossible” for an agency to comply; or (2) if
the law governing an agency’s operations “expressly”
prohibits compliance. 40 C.F.R. 1500.6. As this Court properly
determined in its August 23, 2005 Order, neither exception exists
in this case. Plaintiffs anticipate that OPIC will attempt to
overcome NEPA’s clear statutory language by shoveling
up a handful of disparate internal memos and letters that purport
to show that OPIC has previously rejected NEPA. Based on these
documents, OPIC will make grandiose claims: OPIC clearly interpreted
NEPA not to apply; Congress was fully informed about OPIC’s
agency action; Congress implicitly adopted OPIC’s supposed
rejection of NEPA. Even assuming, for the sake of argument,
that these documents support OPIC’s exaggerated claims,
they are not equal to “agency actions” deserving
of deference. Congressional silence in the face of agency correspondence
carries no significance, and it certainly does not trump NEPA’s
plain language. The Court should reject OPIC’s continuing
attempt to find some excuse for its failure to comply with NEPA.
13 In the August, 23, 2005 Order, this Court analyzed OPIC’s
efforts to exempt itself from NEPA, and rejected them, holding
that NEPA applied to OPIC. OPIC attempted to re-litigate this
issue through a motion for reconsideration, which was properly
rejected by this Court, and OPIC has indicated that it intends
to re-raise this issue in its cross-motion for summary judgment.
By addressing OPIC’s anticipated argument, Plaintiffs
do not waive their right to object to OPIC’s attempt to
re-litigate this argument, nor do they waive the right to contest
the introduction of any documents on which OPIC may rely. Pls.’
Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
26
A. NEPA’s Plain Language Applies to OPIC. 1
2
Statutory construction begins with the plain language of the
statute. “When the statute’s language is plain,
the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according
to its terms.” Hartford Underwriters Ins. Co. v. Union
Planters Bank, N. A., 530 U.S. 1, 6 (2000)(internal quotation
marks omitted) (quoting United States v. Ron Pair Enterprises,
Inc., 489 U.S. 235, 241 (1989) (in turn quoting Caminetti v.
United States, 242 U.S. 470, 485 (1917)). The plain language
of NEPA states that “all agencies of the Federal Government
shall [apply NEPA] to the fullest extent possible.” 42
U.S.C. § 4332 (emphases added). OPIC is a federal agency.
Congress has never exempted OPIC from NEPA. Interpretation should
end there. The plain language of the statute dictates that NEPA
applies to OPIC. Furthermore, the Foreign Assistance Act (“FAA”)
plainly requires OPIC to compile an Environmental Impact Statement
if one of its actions may affect the domestic environment. 22
U.S.C. § 2151p(c)(1)(A). “Environmental Impact Statement”
is a term of art specific to NEPA. The FAA therefore reinforces
the general rule that NEPA applies to OPIC. These statutes are
clear and unambiguous, and an express exemption from NEPA is
not to be found.14 14 OPIC’s enabling authority is functionally
quite similar to that of its sister agency Ex-Im; and Ex-Im
has conceded that it is subject to NEPA. Compare 22 USCS §
2191 with 12 U.S.C. § 635 and 12 C.F.R. part 408. Neither
mentions NEPA, and both include some implementing tools ensuring
that the respective entities can consider environmental impacts
in their work. There is no apparent reason that NEPA should
apply to Ex-Im and not to OPIC, a similar and related agency.
Additionally, OPIC has consistently accepted the application
of Executive Order 12114, 3 C.F.R. 356 (1980) (EO 12114), which
implements NEPA abroad. It makes no sense for OPIC to affirmatively
implement EO 12114 for extraterritorial impacts, and then claim
exemption under NEPA in regard to domestic impacts.
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
Plaintiffs anticipate that, in an effort to overcome NEPA’s
plain language, OPIC will now seek to present a handful of documents
that purport to show that OPIC has previously rejected NEPA.
According to OPIC, congressional silence in the face of these
documents acts to broadly exempt the agency from NEPA. As emphasized
above, the Court need not engage in this exercise. The methods
of statutory construction advocated by OPIC are only appropriate
when the plain language of the statute is ambiguous; that is
not the case here, and OPIC cannot suggest otherwise. See Hartford
Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S.
at 6. Regardless, OPIC’s congressional silence claim fails.
As this court implicitly recognized in its August 23, 2005 Order,
one should not credit Congressional silence with changed Congressional
intent. See United States v. Wells, 519 U.S. 482, 496 (U.S.
1997) (refusing to give any weight to congressional silence).
“Congressional inaction cannot amend a duly enacted statute.”
Patterson v. McLean Credit Union, 491 U.S. 164, 175, n. 1 (1989).
“It is at best treacherous to find in congressional silence
alone the adoption of a controlling rule of law.” Girouard
v. United States, 328 U.S. 61, 69 (1946). Silence has never
been accepted as conclusive evidence of congressional intent,
and courts have been very demanding in the few cases where they
give silence any weight. For example, in Zuber v. Allen, congressional
silence, plus knowledge, plus an exchange on the house floor
demonstrating that some congressmen shared the agency’s
views, was not deemed to be sufficient to infer congressional
intent. Zuber v. Allen, 396 U.S. 168 (U.S. 1969). In Commodities
Futures Trading Commission v. Schor, 478 U.S. 833, the Court
used congressional inaction in the face of formal agency action
as supporting evidence (not
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
28
stand alone evidence) that the agency correctly interpreted
a congressional mandate. See Commodities Futures Trading Commission
v. Schor, 478 U.S. 833, 847 (Congress had “abundant evidence”
including promulgated agency rules and an explicit act of Congress
giving the agency the authority to determine the scope of its
jurisdiction). The Court went out of its way to point out that
it did not need to “rely” on silence, reinforcing
the general rule that silence is a poor guide. See id.
Furthermore, silence and reenactment together do not change
a statute. Attempting to bolster its silence claim, OPIC will
likely claim “adoption through reenactment,” asserting
that when Congress reenacts a statute that includes the agency
authorization which has previously been interpreted, Congress
implicitly adopts that agency interpretation. This is not true.
At the very least, there must be evidence that Congress was
aware of, and considered, an agency interpretation when it reenacted
the statute. Such evidence should include, at a minimum, formal
agency action of the sort Courts would offer deference. See
Commodity Futures Trading Com., 478 at 843 (distinguishing between
promulgated regulations, which receive deference, and proposed
regulations, which “it goes without saying… do[]
not represent an agencies considered interpretation”).
Mere letters and internal memoranda do not rise to the level
of documents typically seen as embodying agency interpretations.
See United States v. Mead Corp., 533 U.S. 218, 233 (U.S. 2001).
In the absence of such evidence, the reenactment is given no
weight. “In such circumstances we consider the . . . re-enactment
to be without significance.” United States v. Calamaro,
354 U.S. 351, 359 (1957). In Brown v. Gardner, the Supreme Court
rejected a much stronger argument that Congress, by reenacting
the organic Veteran Affairs (VA) statute, had implicitly adopted
a
Pls.’ Mot. for Summary Judgment
Civ. No. 02-4106 (JSW)
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