This Tuesday, the D.C. Circuit issued an opinion in No. 13-5136, Grunewald v. Jarvis, affirming the lower court’s decision that the National Park Service’s promulgation of the White-Tailed Deer Management Plan was lawful. At issue in that case was whether the service’s adoption of a plan for culling the population of white-tailed deer in Rock Creek National Park violated the Administrative Procedure Act (APA) by failing to comply with certain federal statutes, including the National Environmental Policy Act (NEPA). Much of the court of appeals’ decision affirming the district court’s summary judgment in favor of defendants (see 930 F. Supp. 2d 73 [D.D.C. 2013]) is a relatively vanilla application of the APA. But the final prong of the court’s NEPA analysis is noteworthy in that it explicitly excludes psychological harms from the scope of impacts that fall within NEPA’s ambit.
Under NEPA and its implementing regulations, agencies are required to consider the “environmental impact” of major federal actions, including “aesthetic” issues and “the relationship of people with [the] environment.” Slip Op. at 22 (quoting NEPA and CFR language). The plaintiffs argued that the Park Service did not adequately consider public objections that killing deer will “significantly mar [the public’s] ability to enjoy using this Park” and “fundamentally transform the [Park’s] overall character.” Id.
On appeal, the plaintiffs disputed the district court’s characterization of this argument as one based on psychological harm. But the court of appeals agreed that this was precisely the type of harm at issue. It held that the Park Service adequately addressed “the impacts that killing deer could have on the human environment” when it considered and sought to mitigate visitors’ exposure to culling activities by, for example, conducting those activities at night or in the off-season. Id. at 22-23. The government “was not required to consider the psychological harm that some visitors may suffer from simply knowing that the intentional killing of deer happens at Rock Creek Park.” Id. at 23 (emphases added). Because NEPA requires agencies to consider the effect of their proposed actions on the physical environment, the potential for psychological harm to the public is a “remote impact [that] is outside the scope of NEPA.” Id. at 23.
This holding may prove to have implications beyond the wildlife-culling context. In cases concerning federal authorization of controversial projects whose impacts are not readily tangible, psychological harm could be used as a hook to challenge a final decision. Such an allegation can easily be found in the context of hydraulic fracturing, where an opponent expresses a fear of earthquakes. It may also arise in opposition to nuclear power projects or projects involving climate change issues, where a fear of future harm forms the basis for psychological distress. Though the court’s opinion does not excuse an agency from discussing the environmental risks of such actions, it may permit a federal agency to omit a discussion of the psychological impact of this risk on individuals. Additionally, because psychological harm is “outside the scope of NEPA,” plaintiffs asserting such harm may face difficulty establishing standing because they fall outside the “zone of interests” the statute is designed to protect. This discussion from the nation’s premier administrative and environmental law court may provide support for defendants in future environmental suits.