MUST NEPA ALWAYS BE FOLLOWED TO THE LETTER WHEN OBTAINING AN ENVIRONMENTAL ASSESSMENT TO ACQUIRE A CONSERVATION EASEMENT? AFTER ALL, AREN'T WE MAINTAINING THE ENVIRONMENTAL STATUS QUO?

摘要

It remains an open question as to whether the DOD must prepare an EA when acquiring conservation easements pursuant to its statutory authority. The case most on point indicates that acquisition of a conservation easement is tantamount to inaction, This indicates that NEPA may not be triggered at all. However, in Sabine River an EA was prepared prior to acceptance of the conservation easement. Examining the relevant case law on whether NEPA is triggered when the Secretary of the Interior designates critical habitat provides only confused guidance due to the circuit split. The court in Douglas County pointed out that "[t]he touchstone [of NEPA] is not any change in the status quo, but change effected by humans." If the DOD acquires a conservation easement, it is not effecting a change by humans, it is preventing one. Conservation easements prevent further development of land and thereby ease the pressures created by man's development. Acquisition of conservation easements also allows the DOD to more effectively carry out its duty as an environmental steward. Incidental to this protection, conservation easements help ensure military preparedness by moving development away from military installations and protecting wildlife habitat off site. Finally, while "[a]n [EA] is a rough-cut, low-budget [EIS]," it is not an insignificant document. "'Rough-cut' and 'low budget' are relative terms: the [EA at issue in Cronin was] 112 pages long - 4.3 pages per acre." Preparation of an EA has significant costs in terms of both time and mpney. The expenditure of significant time and money, when the logical outcome of any EA will be a FONSI, seems to be an outcome not required by the policy of NEPA. Until the issue is addressed by either Congress or the Supreme Court, it will remain unsettled. Prudence will likely require the DOD to protect itself from suit and prepare an EA when it seeks to conserve the habitat of endangered or threatened species.