The National Parks & Conservation Association (NPCA) sued the National Park Service, alleging that the Park Service's failure to prepare an environmental impact statement (EIS) before increasing the number of cruise ships allowed into Glacier Bay National Park and Preserve (Glacier Bay) violated the National Environmental Policy Act (NEPA).[1] The Ninth Circuit agreed, reversing the district court and holding that the Park Service clearly erred in issuing an environmental assessment (EA) and making a finding of no significant impact (FONSI). The court determined that the significance of the proposal's environmental effects was sufficiently controversial to warrant the preparation of an EIS; therefore, it ordered the district court to issue an injunction to reduce the number of cruise ships entering Glacier Bay until the Park Service complied with NEPA.

In 1992, the Park Service drafted a new Vessel Management Plan (VMP) that increased the number of times cruise ships entered Glacier Bay by thirty percent each summer and by seventy-two percent overall. In preparing the plan, the Park Service consulted with the National Marine Fisheries Service (NMFS) regarding the plan's impacts on endangered humpback whales and stellar sea lions.[2] NMFS issued its biological opinion, expressing concern about the potential correlation between the decline in humpback whale use and increased vessel traffic in Glacier Bay. Although NMFS did not oppose the Park Service plan, it recommended that the agency implement research and monitoring programs. In 1996, the Park Service issued a combined VMP/EA, which identified its new plan. Although the EA was accompanied with a FONSI and noted the uncertainty of environmental effects posed by the increases in vessel traffic, the Park Service declined to develop an EIS for further analysis.

NPCA challenged the Park Service's decision not to develop an EIS as a violation of NEPA. The district court granted summary judgment to the Park Service, noting that despite "the effects cruise ship operations have on . . . the animals . . . the EA in this case thoroughly canvasse[d] all existing information and . . . there is no evidence suggesting that a significant risk exists that the harms will occur."[3] The Ninth Circuit disagreed and reversed, noting that NEPA requires agencies to prepare an EIS for all "major federal actions significantly affecting the quality of the human environment."[4]

The court determined that the Park Service plan was significant under two broad factors described in the NEPA regulations: "context and intensity."[5] Having determined that the "context" of the agency action was Glacier Bay National Park, the Ninth Circuit considered three factors to determine the intensity of the agency action: the unique characteristics of Glacier Bay, the uncertainty of the degree of possible environmental effects, and the degree of controversy surrounding the possible effects.

The Ninth Circuit held that the Park Service clearly erred in light of these factors. The court analyzed the scientific evidence in the VMP/EA, finding numerous grounds for uncertainty, such as increased daily and seasonal exposure of humpback whales to underwater noise, the traffic effects from increased vessels, increased risk of oil pollution, more violations of state air quality standards, and additional disturbances to stellar sea lions. The court found particularly troublesome that the EA repeatedly referred to the degree and scope of these environmental effects as "unknown,"[6] despite the Park Service's declaration that such information may be obtainable and would be of substantial assistance in evaluating the plan's environmental impacts. The court concluded that this type of analysis constituted clear error because this is "precisely the information and understanding that is required before a decision . . . is made, and precisely why an EIS must be prepared."[7] The Ninth Circuit held the Park Service failed to take the required "hard look" at the uncertain scientific evidence and had the process "exactly backwards."[8] Similarly, the Park Service's speculative and conclusory statements of mitigation measures did not satisfy the requirements of an EA/FONSI.

Turning to the "controversy" standard, the court noted that agencies must prepare an EIS when federal actions are so controversial as to "raise substantial questions as to whether a project . . . may cause significant degradation."[9] The Ninth Circuit held that the plan was controversial enough to trigger an EIS. The court found compelling the fact that eighty-five percent of the public comments received by the Park Service regarding the plan were negative, and the agency's decision to adopt the chosen alternative was ill-advised and insufficiently supported. The court concluded that the Park Service "clearly erred and that the high degree of uncertainty and the substantial controversy regarding the effects on the quality of the environment each necessitate[d] preparation of an EIS."[10]

Finally, the Ninth Circuit addressed the issue of injunctive relief, holding that NPCA made the required showing for injunctive relief under a balancing of the equities. The court noted that environmental injury is inherently irreparable harm and "allowing a potentially environmentally damaging project to proceed prior to its preparation runs contrary to the very purpose of [NEPA]."[11] The Ninth Circuit directed the district court to enjoin the increases in Glacier Bay vessel traffic and to return traffic levels to their pre-1996 levels.