De novo review of questions of law, however, can be described more accurately as review in which an extremely low level of deference is accorded an agency's interpretation of the law; courts adopting this approach are almost always influenced by an agency's prior construction of the statutory provision at issue

Recently, courts have held that agencies must give notice and provide an opportunity to submit data on the threshold question of whether to prepare an impact statement

The decision that proposed federal action does not significantly affect the quality of the human environment involves a mixed question of law and fact.

It is not disputed that the threshold determination concerning the necessity for an EIS lies with the agency.

However, an EIS is not required where the major federal action is not "significant" within the meaning of NEPA.

In this circuit, the standard of review of an agency's decision not to prepare an EIS is taken from section 706 (2)(A) of the Administrative Procedure Act, 5 USC § 706 (2)(A), which provides that a reviewing court must set aside an agency decision if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." [5

—the Second Circuit perceived the meaning of "significantly" as presenting both a question of law for the court, and a question of fact committed to agency discretion,

—the General Services Administration issued a 25-page "Assessment of the Environmental Impact" to justify its conclusion that a proposed downtown jail facility would have no significant effect on the quality of the environment.

—an agency must consider "in deciding whether a major federal action will `significantly'affect the quality of the human environment... the absolute quantitative adverse environmental effects of the action itself. "

Before an agency decides whether an agency action requires an EIS, "the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold decision."

[PDF] Minnesota Public Interest Research Group v. Butz, 498 F. 2d 1314 (8th Cir …