Plaintiffs Lost Right To Challenge Revised EA By Failing To Submit Revised Comments

A court recently held that plaintiffs, who had commented on an initial Environmental Assessment (EA), lost their right to challenge a revised EA in court because they did not submit new comments to the revised EA.  The case involved a proposed trail on National Park Service property and existing public right-of-way.  The plaintiffs included individuals who owned property near the proposed route.  NPS issued an initial EA pursuant to the National Environmental Policy Act (NEPA), to which the plaintiffs objected.  NPS then issued a revised EA.  While plaintiffs still objected to the revised path of the trail for many of the same reasons stated in their initial comments, they did not submit any written comments in response to the revised EA.

The plaintiffs argued that their original objections set out in their comments still stood and addressed the continued problems with the revised EA.  However, the court found that the plaintiffs clearly knew how to properly object to the EA, “but failed to do so.”  Noting that objections to an EA must be “detailed enough to allow the agency to rectify the alleged violation,” the court found that the comments made by the plaintiffs, even if considered to be comments to the revised EA, were not sufficiently specific to meet this standard.  As a result, the court found that the plaintiffs had waived their right to challenge the revised EA.