with the City of San Clemente for water and sewer hookups to the site forced the selection of the Del Mar location in January 1991. AR 8:248:1525. Officer housing was later constructed on that site.
While DPR again approached the USMC about lease of the site and while some consideration was given to selling the site to developers in exchange for construction services, the USMC continued to aspire to construct officer housing at San Mateo Point. In 1993, when funding for an additional 76 units of housing became available, USMC reached an agreement with the Tri-Cities Municipal Water District that would ensure the provision of water and sewer service to San Mateo Point when needed. AR 9:282:1723. After proceeding for one year to revise and update the 1990 EA, a decision was made to prepare a new EA to more thoroughly evaluate the proposed San Mateo Point project. The draft EA, completed in March 1996, was distributed to numerous government agencies and citizens groups who were invited to submit comments. See, e.g., AR 34:1201:8063. All comments received answers and were included in the Final EA.
The draft EA was also submitted to the California Coastal Commission (CCC) pursuant to 15 C.F.R. § 930 et seq., which requires federal coastal development projects to comply with state coastal management programs to the maximum extent practicable. In August 1996, the CCC rejected the USMC's bid for a Consistency Determination on the basis that there might be other suitable alternatives within the 120,000 acre base, and because of concerns about the visual impact of the project from the beach. As a result of this vote, the USMC modified the site plan by eliminating 8 units and increasing clustering so that the project would be pushed further back from the bluff. The revised plan also provided for enhanced landscaping to screen the project from viewers on the beach. In October 1996, the Commission awarded a Consistency Determination to the project. AR 53:1912:13130. The CCC's concerns about alternatives analysis are addressed separately in Part V of this Order.
The final EA, a 375-plus page document, was issued in January 1997. Upon review of the document, the Commanding General of Camp Pendleton issued a FONSI on January 24, 1997. In July 1997, Plaintiff filed its complaint for declaratory and injunctive relief, alleging that the EA and FONSI prepared by Defendants are inadequate under law, and that the USMC's decision not to prepare an EIS was arbitrary and capricious. Pursuant to a stipulated briefing agreement, the parties have submitted cross-motions for summary judgment. Plaintiff also has moved for a preliminary injunction to postpone construction pending the outcome of this action.
B. Standard of Review for USMC's Failure to Prepare EIS
While NEPA does not explicitly provide for judicial review over agency decisions, courts have exercised such review since the D.C. Circuit's landmark decision in Calvert Cliffs' Coordinating Committee, Inc., v. United States Atomic Energy Com'n., 146 U.S. App. D.C. 33, 449 F.2d 1109 (D.C. Cir. 1971): "Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck is arbitrary or clearly gave insufficient weight to environmental values. But if the [agency] decision was reached procedurally without individualized consideration and balancing of environmental factors--conducted fully and in good faith--it is the responsibility of the courts to reverse." 449 F.2d at 1115; cited with approval in Jicarilla Apache Tribe of Indians, et al. v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973).
The proper standard of review has evolved since those early cases. Two standards govern the review of an agency's NEPA actions. Factual disputes, which implicate substantial agency expertise, are reviewed under the arbitrary and capricious standard of § 706(2)(A) of the Administrative Procedure Act. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989); Greenpeace Action v. Franklin, 14 F.3d 1324, 1330-31 (9th Cir. 1992). Legal disputes are reviewed under the reasonableness standard. Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 727 (9th Cir. 1995).
A challenge to an agency decision to issue a FONSI generally involves disputes of fact and not law. In this case, Plaintiff disputes the USMC's factual findings that the environmental effects of its proposal would not be significant or could be mitigated. Therefore, the arbitrary and capricious standard of Marsh applies. See Greenpeace, 14 F.3d at 1330-1331.
In determining whether an agency's action is arbitrary and capricious, a court must consider whether the "agency has taken the requisite 'hard look' at the environmental consequences of the proposed action, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors." Greenpeace, 14 F.3d at 1332. (internal quotation omitted). "This inquiry into the facts is to be searching and careful." Id. (citation omitted). "An agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. "Once we are satisfied that an agency's exercise of discretion is truly informed, we must defer to that informed discretion." Id. (internal quotation omitted). Judicial review of a NEPA agency action is generally limited to review of the administrative record. Environmental Coalition of Ojai v. Brown, 72 F.3d 1411, 1414 (9th Cir. 1995) (citing 5 U.S.C.A. § 706).
The Court may reverse an agency decision under the arbitrary and capricious standard only if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation of the problem that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise. Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1521 (9th Cir. 1995). Agency decisions will be reversed only when there has been a "clear error of judgment." Marsh, 490 U.S. at 378.
IV. Analysis: Significant impacts
Greenpeace requires that agencies take a "hard look" at the "relevant factors." Greenpeace, 14 F.3d at 1332. The CEQ regulations spell out "context" and "intensity" factors agencies should consider in their determination of whether a proposal will "significantly" effect the human environment. Plaintiff alleges that the EA fails to demonstrate adequate consideration of the context of the project and five intensity factors, defined by CEQ regulation § 1508.27 as follows:
"Significantly" as used in NEPA requires considerations of both context and intensity:
(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.