Golden Gate University Law Review


Lisa Braly


In Northcoast Environmental Center v. Glickman, the United States Court of Appeals for the Ninth Circuit held that a less deferential standard of "reasonableness" applied to its review of legal questions that determined the applicability of the National Environmental Policy Act (NEPA,). Thus, when no facts are in dispute, an agency's decision not to prepare an Environmental Impact Statement (EIS)"will be upheld unless it is unreasonable. When facts are in dispute, however, the Supreme Court decision of Marsh v. Oregon Natural Resources Council, which applied an "arbitrary and capricious" standard of review, controls. The Ninth Circuit also decided that district court had not abused its discretion by declining to follow an exception to the Administrative Procedure Act (APA), which allows a judge to look beyond the administrative record in an appeal. The district court refused to look at documents outside the record based on a finding that they were unnecessary and cumulative. The Ninth Circuit agreed even though Northcoast Environmental Center's documents fit within an exception to the APA.