Scope of Reviewable Evidence in NEPA Predetermination Cases: Why Going off the Record Puts Courts on Target

Abstract

Plaintiffs challenging an agency’s environmental impact statement on the grounds of predetermination have been met with different judicially created evidentiary standards. Under the Fourth Circuit’s approach, as applied in National Audubon Society v. Department of the Navy, courts should restrict the scope of reviewable evidence to the administrative record. Under the Tenth Circuit’s approach, however, extra-record evidence may also be considered in determining predetermination claims. In Forest Guardians v. U.S. Fish and Wildlife Service, the Tenth Circuit considered 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 advocates 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.