NEPA and Mitigating Risks: Assessing When Uncertainty Requires an Environmental Impact Statement

Implications of American Wild Horse Campaign v. Bernhardt, Uncertain vs. Controversial Effects, Unique Characteristics

A live 90-minute CLE video webinar with interactive Q&A

Tuesday, March 9, 2021

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, February 12, 2021

or call 1-800-926-7926

This CLE webinar will discuss the Ninth Circuit's decision in American Wild Horse Campaign v. Bernhardt that addressed when an environmental impact statement (EIS) is required when the environmental impacts are uncertain. The panel will address what types of claims are most likely to be successful when arguing such cases and mitigate risk in cases when disputing violations of the National Environmental Policy Act (NEPA).


NEPA's focus is the disclosure of environmental risks so that the governmental agencies undertaking various projects consider environmental factors in their decision making and share such information with the public. Counsel must consider striking the appropriate balance of what information to provide is difficult, especially where the risk of harm is low or where data on environmental impacts are incomplete or uncertain.

In late 2020 the Ninth Circuit provided guidance on the factual basis for an agency to decline to require an EIS. The holding in American Wild Horse Campaign v. Bernhardt requires that agencies examine the uncertain and controversial effects and unique characteristics of the cultural environment, amongst other factors, when deciding to require an EIS when there is uncertainty.

Listen as our authoritative panel of environmental attorneys guides counsel on interpreting the findings of this most recent case to comply with NEPA demands and discusses the future of NEPA litigation under the new administration.



  1. National Environmental Protection Act
    1. Environmental impact statements
  2. American Wild Horse Campaign v. Bernhardt
    1. Highly uncertain effects
    2. Highly controversial effects
    3. Unique characteristics
    4. Precedent for future actions with significant effects
    5. Response to comments
    6. Specific act requirements


The panel will review these and other key issues:

  • What is the history of American Wild Horse Campaign v. Bernhardt, and how does it impact the requirements of complying with EIS?
  • What are the other key lessons from NEPA litigation trends in 2020?
  • How does a court determine highly uncertain effects vs. highly controversial effects?
  • What unique characteristics should agencies consider when examining proximity to cultural resources?
  • What response to agency comments is required to comply with NEPA?


Yung, Jill
Jill E.C. Yung

Paul Hastings

Ms. Yung represents utility-scale solar developers, brownfields developers, hazardous waste handlers, recycling...  |  Read More

Additional faculty
to be announced.

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