The Sierra Club and two other environmental organizations filed a lawsuit for declaratory relief (“Claim”) against the United States Postal Service (“Service”) on April 28 alleging a violation of the National Environmental Policy Act (“NEPA “) accuse.
The complaint alleges that the service’s decision to replace up to 165,000 mail delivery vehicles violated NEPA because the purchase was completed before the required environmental analysis was completed.
NEPA requires federal agencies to evaluate the environmental impacts of their proposed actions before making decisions. The range of measures covered by NEPA has generally been broadly defined and includes, for example:
- Make federal agency decisions on permit applications
- Federal land management measures
- Construction and/or financing of motorways and other public facilities
NEPA was arguably designed to force mission-oriented agencies to consider the environmental impact of a particular decision or activity in addition to other goals. For example, a Department of Defense decision to build a base in a particular location would traditionally consider a variety of issues such as logistics, infrastructure, etc. In the event that this proposed activity triggers a NEPA review, environmental issues would also need to be addressed. This would include situations where a state or local government uses federal funds to build infrastructure. The aim was therefore to ensure that environmental considerations are integrated as early as possible into the planning of the Agency’s activities.
NEPA requires federal agencies to incorporate environmental values and issues into their decision-making process. This mandate is fulfilled by the Agency considering the environmental impact of proposed actions and reasonable alternatives to those actions. The law requires federal agencies to prepare a Detailed Environmental Impact Statement (“EIS”) in certain cases. However, the obligation to submit this document is only triggered in the event of a “major federal measure” that will have “significant effects on the environment”. Unlike an EIA, which is a much more detailed document, an Environmental Assessment (“EA”) provides sufficient evidence and analysis to determine whether a determination without significant impact should be prepared for an EIA.
Note that NEPA is distinct from actions taken to enforce statutory environmental programs such as the Clean Air Act or the Clean Water Act. It does not impose any material mandates. Instead, it is limited to obliging federal agencies to comply with procedural requirements such as the creation of an EA or EIS in certain cases. As a result, NEPA does not require a specific alternative or meet a specific standard. Nonetheless, failure to comply with NEPA procedures may result in an activity or project being prohibited.
The Sierra Club claims that in January 2015, the service issued a request for information on various prototype mail delivery vehicles. It further alleges that the service selected and ordered prototypes for internal combustion engine (“ICE”) electric vehicles and hybrid options. The service reportedly formalized the contract with Oshkosh Defense (“OD”) for the production of up to 165,000 ICE vehicles. The complaint further alleges:
- The contract stipulates that the first order will be fulfilled in 2023
- The service issued an initial payment of $482 million
- The service began with NEPA verification after calling for prototypes, evaluating and researching different vendors, finalizing the contract and issuing the first payment
A draft Environmental Impact Statement (“EIS”) and a final EIS are scheduled to be issued on August 26, 2021 and January 7, 2022, respectively.
The drafting of these NEPA documents is therefore considered premature.
The Sierra Club, along with co-plaintiffs Clean Air Now and Center for Biological Diversity, are therefore challenging the service’s final EIS regarding the purchase of Next Generation Delivery Vehicles along with its decision record regarding vehicle purchases. They ask for an explanation that the EIS violated NEPA and that the EIS and decision log will be deleted until the service complies with applicable law.
A copy of the complaint can be downloaded here.