## Facts

- Friends of the Earth, Inc., Greenpeace, Inc., and several municipalities (including Oakland, Boulder, Arcata, and Santa Monica) sued federal officials responsible for the Overseas Private Investment Corporation (OPIC) and the Export-Import Bank of the United States (Ex-Im).
- OPIC is a U.S. agency that provides insurance and financing to support overseas private investment, including in countries transitioning to market economies.
- Ex-Im is a U.S. government corporation that supports U.S. exports, primarily through export insurance and guarantees and related credit support.
- Plaintiffs alleged OPIC and Ex-Im provided (and continued to provide) financial support to overseas fossil-fuel and other high-emissions projects that emit greenhouse gases (GHGs).
- Plaintiffs identified seven illustrative projects, including oil pipelines, oil fields, and coal-fired power plants, and alleged the agencies committed federal support without performing environmental review under the National Environmental Policy Act (NEPA).
- Plaintiffs contended that the agencies’ approvals were “major Federal actions” requiring NEPA analysis and that GHG emissions and climate-change effects had to be evaluated as part of the environmental consequences of those actions.
- OPIC and Ex-Im had taken the position that they were not major contributors to climate change and challenged the scope of any NEPA duty for their overseas finance activities.
- The case reached the merits on cross-motions for summary judgment under the Administrative Procedure Act (APA), after prior proceedings addressing threshold justiciability questions.

## Issues

1. Whether OPIC’s and Ex-Im’s decisions to provide insurance, guarantees, or financing for overseas fossil-fuel projects can constitute “major Federal actions” that trigger NEPA review.
2. Whether, and to what extent, NEPA requires consideration of GHG emissions and climate-change effects associated with overseas projects supported by OPIC or Ex-Im.
3. Whether plaintiffs were entitled on summary judgment to broad declaratory and injunctive relief directing agency-wide NEPA procedures for overseas fossil-fuel support, rather than project-by-project review.
4. Whether OPIC was categorically exempt from NEPA based on its organic statute, later legislation, or congressional acquiescence to OPIC’s practices.

## Decision

- Plaintiffs’ motion for summary judgment was denied.
- OPIC’s cross-motion for summary judgment was granted in part and denied in part.
- Ex-Im’s cross-motion for summary judgment was granted in part and denied in part.
- The court did not grant plaintiffs the sweeping, forward-looking relief they sought to force portfolio-wide NEPA analysis for the agencies’ overseas fossil-fuel support based on the summary-judgment record.
- The court declined to accept a categorical claim that OPIC is exempt from NEPA absent clear statutory direction establishing such an exemption.
- The court treated NEPA duties and the appropriateness of any remedy as dependent on the nature of the specific agency action and the administrative record supporting (or failing to support) the agencies’ treatment of environmental effects.

## Legal Principles

- NEPA’s procedural duties generally apply to federal agencies unless Congress clearly provides otherwise; claims of exemption require clear statutory grounding rather than inference from agency practice or oversight history.
- Whether an agency’s financial support is a “major Federal action” depends on the concrete features of the decision, including the level of federal involvement and the agency’s role in enabling or shaping the activity being funded or insured.
- NEPA analysis, when triggered, requires a reasoned evaluation of reasonably foreseeable environmental effects; climate-related effects tied to GHG emissions may be part of that analysis where sufficiently connected to the federal action.
- Under the APA, courts review NEPA-related challenges through the arbitrary-and-capricious framework on the administrative record, and will not issue broad structural injunctions without a developed basis tied to reviewable agency action.
- Summary judgment is inappropriate where key NEPA determinations (such as the character of the agency action, the scope of effects, and the fit between the requested relief and the challenged conduct) require a more specific record than the one presented.

## Conclusion

Friends of Earth v. Mosbacher addressed whether OPIC and Ex-Im’s overseas financing and insurance for fossil-fuel projects can trigger NEPA duties to evaluate GHG and climate impacts, but the court denied plaintiffs summary judgment and declined to order the broad, agency-wide relief requested, while also rejecting a blanket exemption theory and leaving NEPA compliance questions to be resolved through more action-specific APA/NEPA analysis.


Friends of Earth v. Mosbacher, 488 F. Supp. 2d 889 (2007)