Full opinion text
MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. Two claims remain in the instant action, found in Claim I and Claim III of Plaintiffs’ Amended Complaint. In Claim III, Plaintiffs allege that, “by creating a fee-for-service ante-mortem horse slaughter inspection system without first conducting any environmental review under the National Environmental Policy Act [(NEPA)], 42 U.S.C. § 4321, et seq., [United States Department of Agriculture (USDA)] has violated NEPA and the [Council on Environmental Quality’s (CEQ’s)] implementing regulations, abused its discretion, and acted arbitrarily and capriciously in violation of the Administrative Procedure Act [ (APA)], 5 U.S.C. § 706(2).” Am. Compl. ¶98. The Parties, including Defendants Intervenors, filed cross-dispositive motions as to Claim III after the Court, on March 14, 2006, denied [4] Plaintiffs’ Motion for a Temporary Restraining Order and for a Preliminary Injunction. Presently before the Court with respect to Claim III are [37] Defendants’ Motion to Dismiss, or Alternatively, for Summary Judgment; [38, 40] Defendant-Intervenors’ Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs’ First Amended Complaint; and [39] Plaintiffs’ Motion for Summary Judgment. All three Motions have been fully briefed. In Claim I of Plaintiffs’ Amended Complaint, Plaintiffs allege that “[b]y creating a fee-for-service ante-mortem horse slaughter inspection system without providing advance public notice and an advance opportunity to comment, USDA has violated the Administrative Procedure Act, 5 U.S.C. § 553.” Am. Compl. ¶ 94. The Parties filed cross-dispositive motions with respect to this claim after the Court issued its Order and Memorandum Opinion on August 28, 2006, which reinstated Claim One. Presently before the Court with respect to Claim One are [55] Plaintiffs’ Motion for Summary Judgment on Claim One; [58] Defendant-Intervenors’ Cross-Motion for Summary Judgment on Claim One of Plaintiffs’ First Amended Complaint; and Defendants’ [60] Motion for Summary Judgment on Claim One and Defendants’ Motion to Dismiss, or Alternatively for Summary Judgment on this Claim. All three Motions have been fully briefed. Based on the aforementioned filings, the history of the case, the administrative record, and the relevant statutes and case law, the Court shall grant [39] Plaintiffs’ Motion for Summary Judgment, and shall deny both [37] Defendants’ Motion to Dismiss, or Alternatively, for Summary Judgment, and [38, 40] Defendant-Intervenors’ Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs’ First Amended Complaint. Based on the Court’s finding of a NEPA violation, the Court shall declare the Interim Final Rule to be in violation of the APA and NEPA, vacate the Interim Final Rule, and permanently enjoin the Food Safety and Inspection Service (FSIS) of the USDA from implementing the Interim Final Rule. Accordingly, the Court need not reach the issue of whether the Notice and Comment provisions of the APA were violated in the promulgation of the Interim Final Rule at issue such that the Court shall deny as moot [55] Plaintiffs’ Motion for Summary Judgment on Claim One; [58] Defendant-Intervenors’ Cross-Motion for Summary Judgment on Claim One of Plaintiffs’ First Amended Complaint; and Defendants’ [60] Motion for Summary Judgment on Claim One and Defendants’ Motion to Dismiss, or Alternatively for Summary Judgment on this Claim. I: BACKGROUND A. Factual History At the time Plaintiffs filed their Complaint, horses were slaughtered at three different foreign-owned facilities in the United States to provide horse meat for human consumption abroad and for use in zoos and research facilities domestically. The instant case pertains to the web of legislation and regulations pertaining to the inspection of such horses prior to slaughter. On November 10, 2005, Section 794 of the FY 2006 Agricultural Appropriations Act was signed into law. Introduced by members of Congress as an amendment to the FY 2006 Agricultural Appropriations Act, the Amendment provides: Effective 120 days after the date of enactment of this Act, none of the funds made available in this Act may be used to pay the salaries or expenses of personnel to inspect horses under section 3 of the Federal Meat Inspection Act (21 U.S.C. Sec. 603) or under the guidelines issued under section 903 of the Federal Agriculture Improvement and Reform Act of 1996. See Pub.L. 109-97, § 794, 119 Stat. 2120, 2164 (A.R.51). The provision of the Federal Meat Inspection Act (“FMIA”), 21 U.S.C. § 603, pertaining to the inspection of horses provides: “For the purpose of preventing the use in commerce of meat and meat food products which are adulterated, the Secretary shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all amenable species [including cattle, sheep, swine, goats, horses, mules, and other equines] before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered and the meat and meat food products thereof are to be used in commerce.... ” 21 U.S.C. § 603(a). See also 21 U.S.C. § 601(w)(l). The provision of section 903 of the Federal Agriculture Improvement and Reform (FAIR) Act of 1996 pertaining to the inspection of horses relates to inspections during the transport of horses, which is not at issue in the instant case. Plaintiffs understand the FY 2006 Amendment to in effect prohibit the slaughter of horses for human consumption. Pis.’ Mot. for Prelim. Inj. at 10. On November 23, 2005, Beltex Corporation, Dallas Crown, Inc., and Cavel International (collectively the “Slaughter Facility Operators”) filed a petition for “emergency rulemaking” with the USDA to create a “fee-for-service” inspection program with respect to ante-mortem horse inspections and transportation-related horse inspections. Pis.’ Mot. for Prelim. Inj., Ex. 10 (Petition) at 1. On February 8, 2006, FSIS published in the Federal Register an amendment to 9 C.F.R. Pt. 352, “amending the Federal meat inspection regulations to provide for a voluntary fee-for-service program under which official establishments that slaughter horses will be able to apply for and pay for ante-mortem inspection.” 71 Fed.Reg. 6337, 6337 (Feb. 8, 2006). The “interim final rule” was given an effective date of March 10, 2006; additionally, FSIS provided a shortened comment period “because it is issuing an interim final rule and finds that it is in the public interest for [FSIS] to receive comments on an expedited basis” before March 10, 2006, the date on which the 2006 Amendment to the Agricultural Appropriations Act would take effect. Id. at 6337, 6340. Elaborating on the need for immediate action, FSIS states: [w]ith the passage of the FY 2006 Appropriations Act, if FSIS does not establish a means for official establishments that slaughter horses to obtain anti-mortem inspection, these establishments will not be able to operate and presumably will be forced out of business. This interim final rule is necessary to avoid disruption of operations at official establishments that slaughter horses. Therefore, the Administrator has determined that prior notice and opportunity for public comment are impracticable and contrary to the public interest under 5 U.S.C. 553(b), and that there is good cause under 5 U.S.C. 553(d) for making the action effective as specified herein. Id. at 6340. FSIS further specified that it is “establishing this fee-for-service program under the Agricultural Marketing Act (AMA).” Id. at 6337. B. Procedural History In Plaintiffs’ [3] First Amended Complaint, filed on February 21, 2006, Plaintiffs made three claims for relief. First, Plaintiffs claimed that the fee-for-service inspection system was created in violation of the APA, 5 U.S.C. § 553, because advance public notice and opportunity to comment was not provided. Am. Compl. ¶¶ 94, 95. Second, Plaintiffs claimed that Defendants violated the APA, 5 U.S.C. § 706, principally by acting arbitrarily and capriciously in violation of both the 2006 Agricultural Appropriations Act Amendment and the FMIA. Am. Compl. ¶¶ 96, 97. Finally, Plaintiffs claimed that Defendants violated NEPA and its implementing regulations by acting arbitrarily and capriciously in violation of the APA, 5 U.S.C. § 706. Am. Compl. ¶¶ 98, 99. Shortly after filing their First Amended Complaint, Plaintiffs filed [4] Plaintiffs’ Motion for a Temporary Restraining Order and for a Preliminary Injunction, and Request for a Hearing (“Motion for Preliminary Injunction”) on February 22, 2006. In their Motion, Plaintiffs reiterated the grounds for relief stated in their First Amended Complaint and furthermore requested that the Court preliminarily enjoin and declare unlawful the fee-for-service ante-mortem inspection program that would become effective on March 10, 2006 on the grounds that Plaintiffs have demonstrated likelihood of success on the merits, irreparable harm, lack of harm to Defendants, and public interest factors necessary to obtain injunctive relief. Pis.’ Mot. for Prelim. Inj. at 1-2. On February 24, 2006, Beltex Corporation, Cavel International, Inc., and Dallas Crown, Inc. filed an unopposed [7] Motion to Intervene as of right as Defendants, which was granted by the Court on March 1, 2006. On March 14, 2006, the Court issued an [21] Order and [22] Memorandum Opinion denying Plaintiffs’ request for a preliminary injunction and dismissing Claims One and Two of Plaintiffs’ Amended Complaint. The Court also noted that unclear briefing and incomplete documentation by both sides with respect to Plaintiffs’ NEPA claim precluded the Court from making a determination on the merits based on the record before it. However, the Court held with respect to Plaintiffs’ NEPA claim that “while Defendants might well have accurately claimed that the ante-mortem Interim Final Rule at issue would have been categorically excluded from environmental analysis under 7 C.F.R. § lb.3(a)(2) because the Rule is apparently concerned only with discretionary financial decisions, such a claim cannot be asserted at this time because it is uncontested that Defendants did not consider such an exemption at the time the Interim Final Rule was promulgated.” [22] P.I. Mem. Op. at 23. Following the Court’s March 14, 2006 ruling, the Parties submitted Motions for Summary Judgment with respect to Claim Three of the Amended Complaint. On May 1, 2006, Defendants filed [37] Defendants’ Motion to Dismiss, or Alternatively, for Summary Judgment; Defendant-Intervenors filed [38, 40] Defendant-Intervenors’ Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs’ First Amended Complaint; and Plaintiffs filed [39] Plaintiffs’ Motion for Summary Judgment. All three motions are fully briefed. On March 24, 2006, Plaintiffs also filed [23] Plaintiffs’ Motion Under Fed.R.Civ.P. 54(b) for Reconsideration of the Court’s Sua Sponte Dismissal of Claims One and Two or, In the Alternative, for Certification of Those Claims for Immediate Appellate Review, and Request for an Expedited Hearing. Therein, Plaintiffs asked the Court to reconsider its dismissal of Claims One and Two, which had been made on the Court’s finding that Plaintiffs lacked prudential standing to pursue the claims set forth in these two claims. Pis.’ Mot. Reconsider at 1. Plaintiffs further requested that in the alternative, the Court certify Claims One and Two for immediate appellate review. Id. Finally, Plaintiffs requested a hearing related to their Motion to Reconsider. Id. On August 28, 2006, the Court issued an Order and Memorandum Opinion granting Plaintiffs’ [23] Motion to Reconsider with respect to the Court’s dismissal of Claim One of the Amended Complaint, but denied Plaintiffs’ Motion with respect to Claim Two of the Amended Complaint. Furthermore, the Court denied Plaintiffs’ request for certification for immediate appellate review with respect to Claim Two and denied Plaintiffs’ request for a hearing as unnecessary and counter to the interests of judicial economy. The Court also provided a briefing schedule with respect to Claim One, and indicated that the Court would address Plaintiffs’ NEPA claim (Claim Three) at the same time it addressed briefing with respect to Claim One. Following the Court’s August 28, 2006 ruling, the Parties (Plaintiffs, Defendants, and Defendant-Intervenors) submitted Motions for Summary Judgment with respect to Claim One, which are now fully briefed. II: LEGAL STANDARD A. Rule 12(b)(6) In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs favor, it “need not accept inferences drawn by the plaintiff [] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). B. Summary Judgment A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under the summary judgment standard, Defendant, as the moving party, “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Plaintiff, in response to Defendants’ motion, must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (internal citations omitted). “Mere allegations or denials of the adverse party’s pleading are not enough to prevent the issuance of summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). The adverse party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 587, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (citing Fed.R.Civ.P. 56(e)) (emphasis in original). C. National Environmental Policy Act NEPA, the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a), requires that federal agencies take a “hard look” at the environmental consequences of their projects before taking action. 42 U.S.C. § 4332(C); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 1859, 104 L.Ed.2d 377 (1989); Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). Pursuant to NEPA, an environmental impact statement (“EIS”) must be prepared for “major Federal actions significantly affecting the quality of the human environment____” 42 U.S.C. § 4332(C); Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 371 (D.C.Cir.1999). The EIS must include “a detailed statement” regarding: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(C)(i)-(v). In situations where an EIS is required, the agency is required to prepare “a concise public record of decision” that describes the factors it considered in making its- decision, and must identify “all alternatives considered by the agency in reaching its decision, specifying the alternative or alternatives which were considered.... ” 40 C.F.R. § 1505.2; Corridor H, 166 F.3d at 371. The agency must “identify and discuss all such factors including any essential considerations of national policy which were balanced by the agency in making its decision ----” Id. However, an EIS may not be required under certain circumstances. First, “[a]n EIS is not required if the agency makes a determination based on a more limited document, an ‘environmental assessment’ (“EA”) that the proposed action would not have a significant impact on the environment.” Sierra Club v. Mainella, 459 F.Supp.2d 76, 81 (D.D.C.2006) (citing 40 C.F.R. §§ 1501.4, 1508.13). “The EA is to be a ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ ” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 2210, 159 L.Ed.2d 60 (2004) (quoting 40 C.F.R. § 1508.9(a)). “If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a ‘finding of no significant impact’ (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment.” Id. at 757-58, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (citing 40 C.F.R. §§ 1501.4(e), 1508.13). Second, a “categorical exclusion” may exempt certain agency actions from NEPA review. A “categorical exclusion” is defined by CEQ regulations as follows: a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.... Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect. 40 C.F.R. § 1508.4. The USDA has issued NEPA regulations that “supplemen[t],” “incorporare],” and “adop[t]” the CEQ regulations described herein. 7 C.F.R. § 1b.l(a). Pursuant to 7 C.F.R. § 1b.4, certain USDA agencies and agency units, including FSIS, have been deemed to “conduct programs and activities that have been found to have no individual or cumulative effect on the human environment,” and therefore “are excluded from the requirements of preparing procedures to implement NEPA. Actions of USDA agencies and agency units listed in paragraph (b) of this section are categorically excluded from the preparation of an EA or EIS unless the agency head determines that an action may have a significant environmental effect.” 7 C.F.R. § lb.4(a). However, “[notwithstanding the exclusions listed in ... § lb.4, or identified in agency procedures, agency heads may determine that circumstances dictate the need for preparation of an EA or EIS for a particular action. Agencies shall continue to scrutinize their activities to determine continued eligibility for categorical exclusion.” 7 C.F.R. § lb.3(c). NEPA “requires that agencies assess the environmental consequences of federal projects by following certain procedures during the decision-making process.” City of Alexandria, Va. v. Slater, 198 F.3d 862, 866 (D.C.Cir.1999). Ultimately, NEPA has twin aims. “First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.” Baltimore Gas & Elec. Co., 462 U.S. at 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (internal quotation omitted). “Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Id. Accordingly, NEPA’s “mandate is essentially procedural.” City of Alexandria, 198 F.3d at 866 (internal quotation omitted); North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C.Cir.1980) (NEPA requirements are essentially procedural and a court should not substitute its own policy judgment for that of the agency). “NEPA merely prohibits uninformed — rather than unwise — agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989). Compliance with the procedural requirements themselves, however, is not discretionary and a court may review the decision to forego production of an EIS. Kleppe v. Sierra Club, 427 U.S. 390, 406, 96 S.Ct. 2718, 2728, 49 L.Ed.2d 576 (1976). Because NEPA provides no private right of action, Plaintiffs’ claims have been brought under the APA. See 5 U.S.C. § 706(2)(A); Pub. Citizen, 541 U.S. at 763, 124 S.Ct. 2204, 159 L.Ed.2d 60; Tulare Co. v. Bush, 306 F.3d 1138, 1143 (D.C.Cir. 2002). As such, “[t]he Court’s role in reviewing a challenge to an agency’s compliance with NEPA is limited to ensuring ‘that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.’ ” Valley Ctmy. Pres. Comm’n v. Mineta, 231 F.Supp.2d 23, 39 (D.D.C.2002) (quoting Baltimore Gas & Elec. Co., 462 U.S. at 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437). “While deferential, a court must thoroughly review an agency’s decision and may not ‘rubber stamp’ decisions that are inconsistent with statutory mandate or congressional policy.” Gov’t of the Province of Manitoba v. Norton, 398 F.Supp.2d 41, 54 (D.D.C. 2005). III. DISCUSSION While the Parties have appropriately filed Statements of Material Facts Not in Dispute, it is clear to the Court that at issue is whether Defendants were legally required to undertake some type of environmental review pursuant to NEPA prior to issuing the Interim Final Rule and that the underlying facts related thereto are not in dispute. Plaintiffs, in their Motion for Summary Judgment, argue specifically that Defendants have violated NEPA by promulgating an ‘Interim Final Rule’ creating new regulations that establish a ‘fee-for-serviee’ inspection system ... without preparing either an Environmental Impact Statement or an Environmental Assessment, as required by NEPA. Plaintiffs also move for summary judgment on the grounds that defendants unlawfully invoked a ‘categorical exclusion’ under NEPA without explaining their decision to do so in the administrative record. Pis.’ Mot. for Summ. J. at 1. As stated in the Court’s March 14, 2006 Memorandum Opinion, Plaintiffs claim— and Defendants do not contest — that Defendants did not undertake any review pursuant to NEPA, nor did they prepare any NEPA document addressing the environmental impact associated with their issuance of the Interim Final Rule. See Pis.’ Mot. for Prelim. Inj. at 33-34; Defs.’ Opp’n to Pis.’ Mot. for Prelim. Inj. at 26-27 & n. 10; Pls.’ Reply to Pis.’ Mot. for Prelim. Inj. at 21-24. Rather, Defendants (and Defendant-Intervenors) argue that Defendants were not required to subject the Interim Final Rule to review pursuant to NEPA because 1) the Interim Final rule did not constitute a “major Federal action” triggering NEPA requirements, and 2) the FSIS was “categorically exempt” from NEPA review requirements such that it was not required to subject the Interim Final Rule to such review. See Defs.’ Opp’n at 3. The Court shall address these arguments in turn, as well as Defendants’ claim that even assuming arguendo that the Interim Final Rule was subject to review pursuant to NEPA, conflict between NEPA and another federal statute — specifically, the FMIA — precluded NEPA review. See Defs.’ Opp’n at 3. A. Issuance of the Interim Final Rule is a “Major Federal Action” that requires review pursuant to NEPA NEPA applies to “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). Pursuant to 40 C.F.R. § 1508.18, a “major Federal action” includes “actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (§ 1508.27).” 40 C.F.R. § 1508.18. Accordingly, actions are deemed “major” if they “significantly” affect the environment as defined pursuant to 40 C.F.R. § 1508.27. Whether an action “significantly” affects the environment involves considerations of both “context” and “intensity.” Id. A consideration of context “means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality.” Id. § 1508.27(a). An evaluation of “intensity,” which refers to “the severity of the impact,” includes an assessment of the following: (2) The degree to which the proposed action affects public health or safety.... (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.... (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. Id. § 1508.27(b). “Effects,” or impacts, include direct and indirect effects, and include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. 40 C.F.R. § 1508.8. Pursuant to 40 C.F.R. § 1508.18, actions include: new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals (§§ 1506.8, 1508.17). Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no Federal agency control over the subsequent use of such funds. Actions do not include bringing judicial or administrative civil or criminal enforcement actions. 40 C.F.R. § 1508.18(a). Federal actions include the “[ajdoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency’s policies which will result in or substantially alter agency programs”; and “[a]doption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.” 40 C.F.R. § 1508.18(b)(1) & (3). Neither Defendants nor Defendant-Intervenors refute Plaintiffs’ argument that horse slaughter operations have “significantly” impacted the environment within the meaning of NEPA as set forth in 40 C.F.R. § 1508.27. See Fund for Animals v. Norton, 281 F.Supp.2d 209, 218 (D.D.C. 2003) (“courts have found that ‘[t]he presence of one or more of [the CEQ significance] factors should result in an agency-decision to prepare an EIS.’ ” (quoting Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1023 (9th Cir.2003)). However, whether Plaintiffs’ assessment of the “significance” of such impacts is correct is not presently subject to review, as it is clear that the related-NEPA analysis was never conducted by the agency in the first instance. Rather, both Defendants and DefendaniAlntervenors claim that the Interim Final Rule does not constitute a major Federal action subject to review pursuant to NEPA because 1) Federal control is not implicated, and 2) the Interim Final Rule allegedly perpetuates the status quo. The Court will address these arguments in turn, as well as the key question of whether the impacts of the horse slaughter facilities themselves are sufficiently causally related to the Interim Final Rule such that they can be considered “effects” of the Rule itself. 1. The Interim Final Rule is a Major Federal Action Defendants and Defendant-Intervenors argue that the Interim Final Rule is not a major Federal action subject to NEPA review because the Rule does not implicate Defendants’ control over the horse slaughter operations themselves. See Defs.’ Opp’n at 10 (“In the present case, neither USDA’s action in allowing ante-mortem inspection of horses at horse slaughter plants to be funded via a fee-for-service program, nor the ante-mortem inspections themselves, constitute ‘a “proposal for major [F]ederal action” subject [to] an environmental document’ because neither activity demonstrates ‘any significant federal involvement’ in the approval and operation of the plants. Save Barton Creek Association, 950 F.2d 1129, 1133-34 (5th Cir.1992).”); Def-Intervs.’ Opp’n at 1 (“The FSIS does not control and is not responsible for the operation of these establishments, and the Interim Final Rule does not otherwise change any regulatory requirements applicable to the operations of these establishments.”). Furthermore, Defendanb-Intervenors claim that “Plaintiffs do not set forth any facts to suggest that the inspection-related activities conducted by the FSIS at the establishments — whether carried out pursuant to federal funding or the voluntary payment of fees — in and of themselves significantly affect the human environment, which clearly they do not. Instead, the crux of Plaintiffs’ summary judgment argument is that the precursor slaughter operations conducted at Defendant-Intervenors’ privately owned and operated establishments allegedly affect the human environment, and ‘but for’ the Interim Final Rule, those establishments would be forced to cease operating.” Def-Intervs.’ Opp’n at 6. Defendants and Defendant-Intervenors mistakenly focus on “federal control” over non-federal actions in their filings. See Def-Intervs’ Opp’n at 6 (“Actions undertaken by private, commercial entities are not subject to NEPA.”). However, unlike the numerous cases cited by Defendants and Defendant-Intervenors, the federal “action” at issue in this case is not a non-federal program subject to federal funding and/or approval, but rather the agency’s promulgation of the Interim Final Rule itself. Defendants and Defendant-Intervenors cannot (and do not) seriously argue that FSIS did not have control over the issuance of its own Rule. Notably, one of the cases cited by Defendants makes light of the distinction between a federal action (such as the Interim Final Rule itself) and the non-federal undertaking (in this case, the horse slaughter facilities) to which it relates: “NEPA review, however, is triggered only by a major Federal action. Therefore, unless the construction itself is pursuant to federal financial assistance, NEPA review may only be conducted with regard to the issuance of a discharge permit, which constitutes, of course, the major Federal action.” Natural Res. Def. Council, Inc. v. U.S. Environ. Prot. Agency, 822 F.2d 104, 128 (D.C.Cir.1987). In the instant case, the Interim Final Rule has already been issued such that this is the “federal action” undertaken. This Court’s holding that an FDA statement of policy did not constitute a major Federal action in Alliance of Bio-Integrity v. Shalala is not to the contrary. Alliance of Bio-Integrity v. Shalala, 116 F.Supp.2d 166 (D.D.C.2000). In Bio-Integrity, the Court did not consider an FDA' policy statement creating a rebuttable presumption that foods produced through rDNA technology be declared generally recognized as safe to be a major federal action because 1) this declaration of “presumption” was not a final determination with respect to any particular food; 2) the FDA did not undertake an “overt action” (“In certain cases, agencies may take action by authorizing private action, but in such cases the government still must undertake some overt act, such as issuing a permit or affirming a substance____”); and 3) the Statement of Policy did not affect the “regulatory status quo.” Id. at 174-75. While the Court will address the “regulatory status quo” component of the Court’s reasoning in the next section of this Opinion, the Court finds that application of the reasoning in Bio-Integrity distinguishes the major Federal action at issue in the instant case. In the instant case, the FSIS’s promulgation of the Interim Final Rule was not a simple statement of policy but rather the creation of a required, fee-for-inspection program applicable to all horse slaughter facilities, and is thus both an overt action and has been proven to be a final (rather than a proposed) determination with respect to the manner in which ante-mortem inspections will be conducted by FSIS. The Court notes that neither Defendants nor Defendant-Intervenors ever contest that the Interim Final Rule was not a “final” agency action such that it would be premature to subject it to APA review. While the promulgation of the Interim Final Rule itself unquestionably constitutes a major Federal action, some environmental effect must be caused by the Interim Final Rule for it to come within the rubric of NEPA. There is a major Federal action subject to NEPA review “whenever an agency makes a decision which permits action by other parties which will affect the quality of the environment.” Scientists’ Inst, for Pub. Info. v. Atomic Energy Comm’n, 481 F.2d 1079, 1088-89 (D.C.Cir.1973). See also NAACP v. Med. Ctr., Inc., 584 F.2d 619, 629 n. 15 (3d Cir.1978) (“In each instance cited by Judge Wright in Scientists’ Institute, the agency action was one which was an absolute legal condition precedent to the action which would affect the environment.”). Pursuant to CEQ regulations themselves, NEPA review is implicated by both foreseeable direct and indirect impacts: Indirect effects [ ] are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. 40 C.F.R. § 1508.8(b). “Indirect impacts need only to be ‘reasonably foreseeable’ to require an assessment of the environmental impact.” Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs, 109 F.Supp.2d 30, 41 (D.D.C.2000). Plaintiffs argue that if reasonably foreseeable environmental impacts would not occur but for the action at issue, the action constitutes a “major Federal action” subject to NEPA. See Western Land Exch. Project v. U.S. Bureau of Land Mgmt., 315 F.Supp.2d 1068, 1089 (D.Nev.2004) (“The impacts here are ‘caused by the action,’ in the most straightforward sense, insofar as they would not occur but for [the action.]”). However, the Supreme Court, in a key 2004 case cited in the Parties’ cumulative filings only once (in Plaintiffs Reply brief for an entirely different proposition), held that the appropriate test in determining whether a particular effect was caused by a federal action was not a “but for” inquiry, but rather whether the federal action was the “legally relevant cause” of the effect. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 769, 124 S.Ct. 2204, 2216, 159 L.Ed.2d 60 (2004). Considering the import of this case to the Court’s determination of whether the environmental effects of the horse slaughter operations are effects of the Interim Final Rule for purposes of NEPA review, the Court shall set forth the contours of Public Citizen and how it applies to the case presently before the Court. In Public Citizen, the Court held that “the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by Mexican trucks” was not an effect as defined by NEPA of “[Federal Motor Carrier Safety Administration’s (FMSCA’s)] issuance of the Application and Safety Monitoring Rules.” Id. at 764, 124 S.Ct. 2204, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. Prior to 1982, motor carriers domiciled in Mexico could operate in the United States upon obtaining certification. Id. at 759, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. In 1982, Congress enacted a two-year moratorium on new grants of operating authority to Mexican motor carriers. Id., 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. The President was authorized to extend the two-year period and did so with respect to Mexican motor carriers until November 2002. Id. at 759-62, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. Prior to lifting the moratorium in November of 2002, the President had “made clear his intention to lift the moratorium on Mexican motor carrier certification following the preparation of new regulations governing grants of operating authority to Mexican motor carriers.” Id. at 760, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. Meanwhile, in May 2001, FMSCA proposed rules which were published concerning safety regulation of Mexican motor carriers. Id. In December 2001, Congress enacted an Appropriations Act that provided “that no funds appropriated under the Act could be obligated or expended to review or to process any application by a Mexican motor carrier for authority to operate in the interior of the United States until FMCSA implemented specific application and safety-monitoring requirements for Mexican carriers.” Id. Congress extended these conditions via appropriations for Fiscal Years 2003 and 2004. Id. at 761, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. After issuing a programmatic EA, the FMCSA issued the proposed rules as interim rules on March 19, 2002, with an effective date of May 3, 2002. Id. at 762, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. Plaintiffs in Public Citizen filed suit before the President lifted the moratorium on qualified Mexican motor carriers in November 2002. Id. In rejecting Plaintiffs’ view that the increase in cross-border operations of Mexican motor carriers and corresponding increased vehicle emissions was an “effect” subject to NEPA review of the safety regulations promulgated by the FMSCA, the Court determined that “a ‘but for’ causal relationship is insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations. As this Court held in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983), NEPA requires ‘a reasonably close causal relationship’ between the environmental effect and the alleged cause.” Id. at 767, 103 S.Ct. 1556, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. Finding that “FMCSA has no ability to countermand the President’s lifting of the moratorium or otherwise categorically to exclude Mexican motor carriers from operating within the United States,” id. at 766, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60, the Court further noted that despite Congress’ restriction on FMSCA’s spending any funds to process or review applications by Mexican motor carriers before it implemented safety-monitoring regulations, the FMSCA also had a statutory duty pursuant to 49 U.S.C. § 13902(a)(1) to register persons to provide transportation as a motor carrier upon finding that a person is willing and able to comply with the requisite safety and financial responsibility requirements. Id. We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant “cause” of the effect. Hence, under NEPA and the implementing CEQ regulations, the agency need not consider these effects in its EA when determining whether its action is a “major Federal action.” Because the President, not FMCSA, could authorize (or not authorize) cross-border operations from Mexican motor carriers, and because FMCSA has no discretion to prevent the entry of Mexican trucks, its EA did not need to consider the environmental effects arising from the entry. Id. at 770, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. Public Citizen relies in part on Metropolitan Edison Co., wherein the Court held that the Nuclear Regulatory Commission did not violate NEPA when it did not consider the “potential psychological health damage” flowing from the risk of a nuclear accident in its environmental assessment accompanying its decision to permit resumed operation of a nuclear power plant: Some effects that are “caused by” a change in the physical environment in the sense of “but for” causation, will nonetheless not fall within [NEPA] because the causal chain is too attenuated.... Our understanding of the congressional concerns that led to the enactment of NEPA suggests that the terms “environmental effect” and “environmental impact” in § 102 be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. This requirement is like the familiar doctrine of proximate cause from tort law. Metro. Edison Co., 460 U.S. at 774, 103 S.Ct. 1556, 75 L.Ed.2d 534. However, the Court was quick to clarify that [i]n drawing this analogy, we do not mean to suggest that any cause-effect relation too attenuated to merit damages in a tort suit would also be too attenuated to merit notice in an EIS; nor do we mean to suggest the converse. In the context of both tort law and NEPA, courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not. Id. at 774 n. 7, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d 534. In its holding, the Court noted that “the element of risk lengthens the causal chain beyond the reach of NEPA.” Id. at 775, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d 534. “If contentions of psychological health damage caused by risk were cognizable under NEPA, agencies would, at the very least, be obliged to expend considerable resources developing psychiatric expertise that is not otherwise relevant to their congressionally assigned functions.” Id. at 776, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d 534. One court has explained that when an agency serves effectively as a “gatekeeper” for private action, that agency can no longer be said to have “no ability to prevent a certain effect.” See Wyo. Outdoor Council Powder River Basin Resources Council v. U.S. Army Corps of Eng’rs, 351 F.Supp.2d 1232, 1242 (D.Wyo.2005) (“When a particular oil and gas developer, however, proposes to discharge dredge and fill material into the waters of the United States in conjunction with a project, [the relevant agency] becomes the gatekeeper for approval of the project. The project becomes ‘so interdependent that it would be unwise or irrational to complete [the development] without [a permit to discharge dredge and fill material].’ ” (citation omitted)). However, the most pertinent analysis and application of Public Citizen in a case to date was conducted by Judge John D. Bates in Sierra Club v. Mainella. Sierra Club v. Mainella, 459 F.Supp.2d 76 (D.D.C.2006). In Sierra Club, the court concluded that the National Park Service’s decision to permit directional drilling operations under a National Preserve violated NEPA because the NPS did not evaluate impacts from the surface activities of the directional drilling that occurred outside of the park. Id. at 105. NPS had argued that it had “no authority to regulate surface operations outside of park boundaries or otherwise prevent their impacts,” and pursuant to Public Citizen, that NEPA accordingly would not require an EA to cover those impacts. Id. at 103-104. Plaintiffs had argued that because NPS had the ability “to prevent the activities causing the environmental impact by denying access to the Preserve,” such extra-Preserve activities and their impacts necessarily required consideration pursuant to NEPA. Id. at 104. Judge Bates, characterizing Public Citizen as involving] circumstances where the agency clearly had ‘no ability’ to take actions that could lessen the environmental impacts of concern to the plaintiffs, id., summarized the factors on which the Supreme Court’s holding hinged in that case as follows: In determining that there was no causal link, the Court stressed that “a critical feature” to its decision was that the agency had “no ability to countermand the President’s lifting of the moratorium or otherwise categorically to exclude Mexican motor carriers from operating within the ' United States.” Id. at 766, 124 S.Ct. 2204 (emphasis added). The Court also noted that “NEPA requires ‘a reasonably close causal relationship’ between the environmental effect and the alleged cause,” and thus but-for causation is insufficient. Id. at 767, 124 S.Ct. 2204. Id. at 104-105. Judge Bates accordingly distinguished the facts in Public Citizen as follows: it is readily apparent that, to determine whether NPS action on an application to drill beneath the Preserve pursuant to a section 9.32(e) exemption is a major federal action under NEPA, one must evaluate impacts from the surface activities of the directional drilling. The holding in Public Citizen extends only to those situations where an agency has “no ability” because of lack of “statutory authority” to address the impact. NPS, in contrast, is only constrained by its own regulation from considering impacts on the Preserve from adjacent surface activities. ... it makes sense for NPS to assess the impacts from surface activities because there is a reasonably close causal relationship between such impacts and NPS’s decision to grant an operator access to oil and gas beneath the Preserve pursuant to an exemption from the 9B regulations. The surface drilling activities are functionally inseparable from the downhole drilling activities, which may not take place until NPS grants the operator access through the Preserve ____ Id. at 105. Turning to the issue pending before this Court, both the legal framework surrounding ante-mortem inspections of horses to be slaughtered for consumption, and the intent of FSIS as expressed in the notice issued prior to the promulgation of the Interim Final Rule, reveal that the Rule is appropriately the “legally relevant cause” of the environmental effects of horse slaughter operations after the FY 2006 Amendment went into effect. First of all, unlike in Public Citizen, there is no intervening link between the Interim Final Rule and the horse slaughter operations and their environmental effects. While in Public Citizen the President’s lifting of the moratorium was determined to be the legally relevant cause to increased cross-border operation of Mexican motor carriers, no such action enabled the horse slaughter operations to continue functioning aside from the Interim Final Rule. Pursuant to the FMIA, 21 U.S.C. § 603(a), “an [FSIS] examination and inspection of all amenable species” is required “before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered and the meat and meat food products thereof are to be used in commerce.” Since ante-mortem inspections of horses must be conducted pursuant to 21 U.S.C. § 603(a), and Congress eliminated federal funding for such inspections pursuant to the relevant FY 2006 Amendment, upon passage of the Amendment, no further inspections could take place under the FMIA, which requires that such inspections be undertaken by federally-compensated inspectors. See 21 U.S.C. § 695 (“The cost of inspection rendered on and after July 1, 1948, under the requirements of laws relating to Federal inspection of meat and meat food products shall be borne by the United States.... ”). According to the text of the FSIS’s Federal Register publication, “if FSIS does not establish a means for official establishments that slaughter horses to obtain ante-mortem inspection, these establishments will not be able to operate,” such that the interim final rule “is necessary to ... operations at official establishments that slaughter horses.” 71 Fed.Reg. 26 6340 (quoted in Pis.’ Mem. for Summ. J. at 9). Defendants likewise admit that without the Interim Final Rule, the horse slaughter facilities would not continue to function as such. See Defs’ Opp’n to Prelim J. Mot. at 33 (“[b]ecause all livestock, including horses, intended for human consumption, must be inspected by the FSIS prior to slaughter, withholding such services will force the companies to cease their operations unless the fee-for-service inspection program is implemented as intended by the USDA and provided for in the Interim Final Rule.”). Second, while the FMCSA “ha[d] no discretion to prevent the entry of Mexican trucks,” Public Citizen, 541 U.S. at 770, 124 S.Ct. 2204, 159 L.Ed.2d 60, promulgation of the Interim Final Rule was within Defendants’ discretion, despite Defendants protestations to the contrary. In Public Citizen, Congress enacted an Appropriations Act that provided “that no funds appropriated under the Act could be obligated or expended to review or to process any application by a Mexican motor carrier for authority to operate in the interior of the United States until FMCSA implemented specific application and safety-monitoring requirements for Mexican carriers.” Id. at 760, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (emphasis added). Yet a different statute — 49 U.S.C. § 13902(a)(1) — mandated that the FMSCA register persons to provide transportation as a motor carrier upon finding that a person is willing and able to comply with the requisite safety and financial responsibility requirements. Id. at 766, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60. In the instant case, the FY 2006 Amendment eliminated funding for FSIS ante-mortem inspections entirely, as opposed to contingent on the USDA promulgating new regulations. Furthermore, Defendants cannot argue that Defendants were required to issue the Interim Final Rule — or any rule creating a mechanism for ante-mortem horse inspections — based on any statutory duty. While the FMIA states that “the Secretary shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all amenable species before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered and the meat and meat food products thereof are to be used in commerce,” 21 U.S.C. § 603, the FMIA also explicitly states that the costs of said inspections “shall be borne by the United States,” 21 U.S.C. § 695. As the Interim Final Rule was promulgated pursuant to the AMA specifically because the FMIA would explicitly prohibit the promulgation of a “fee-for-inspection” rule, Defendants cannot argue that they were required by the FMIA to promulgate a Rule contrary to the very same statute. Thus, the Interim Final Rule is the “legally relevant cause” of the environmental effects of the horse slaughter facilities after the FY 2006 Amendment went into effect. Judge Bates in Sierra Club v. Mainella considered the impacts of surface-drilling activities to be “functionally inseparable” from activities for which NPS granted applications because they “may not take place until NPS grants the operator access through the Preserve.” Mainella, 459 F.Supp.2d at 105. Similarly, the horse slaughter operations and their environmental impacts are “functionally inseparable” from the fee-for-service inspections authorized by the Interim Final Rule because horse slaughtering for human consumption “may not take place” pursuant to the FMIA until the FSIS has conducted ante-mortem inspections. Accordingly, the environmental effects of horse slaughter operations themselves should have been assessed pursuant to NEPA prior to promulgating the Interim Final Rule, as they are “reasonably causally related” to be considered effects of the Rule itself. 2. Issuance of the Interim Final Rule Does Not Simply Maintain the Status Quo In the Court’s Preliminary Injunction Memorandum Opinion, the Court explained that one of the reasons that Plaintiffs had not yet demonstrated a substantial likelihood of success on the merits was because of Plaintiffs’ failure to explain why the Interim Final Rule promulgated by FSIS did not simply perpetuate the status quo ante. See [22] P.I. Mem. Op. at 24-25. The Court noted that “for approximately thirty (30) years, facilities in this country have engaged in the slaughter of horses and the processing of horsemeat for consumption without the amendment or repeal of the underlying authorizing statute.” Id. at 26. Plaintiffs respond that the Interim Final Rule does not perpetuate the status quo because (1) “but for USDA’s discretionary decision to grant the petition for rulemaking, the horse slaughter operations■ — and hence all of the environmental impacts associated with them — would have ceased on March 10, 2006, by operation of the FY 2006 Amendment”; (2) “federal defendants have never previously analyzed the environmental effects associated with the horse slaughter facilities in any NEPA document”; and (3) “USDA has never previously adopted, or otherwise authorized, a fee-for-inspection funding system for the slaughter of animals covered by the FMIA.” Pis.’ Mem. for Summ. J. at 23-24; Pis.’ Stmt. Mat. Facts ¶¶ 17, 18. Defendants’ responses thereto do not reveal an actual factual dispute. See also Defs.’ Response to Pis.’ Stmt. Mat. Facts ¶ 17 (“This statement contains an opinion and not a statement of fact”), ¶ 18 (“Plaintiffs’ allegations that the Administrative Record contains no NEPA documents is controverted by the rulemaking and regulatory documents establishing the categorical exclusion for FSIS activities. See Administrative Record filed April 12, 2006. Plaintiffs’ allegation that the FSIS failed to conduct an EIS or EA is not material.”). Because the USDA “has never previously adopted ... a fee-for-inspection funding system for the slaughter of animals covered by the FMIA,” such that the FSIS has created an entirely new regulatory framework for its ante-mortem inspections, the Court agrees that the Interim Final Rule does not perpetuate the regulatory status quo and accordingly is not exempted from NEPA review on this basis. Defendants argue that: the Interim Final Rule merely provides for the horse slaughter plants themselves to pay for ante-mortem inspection of horses via a fee-for-service program and does not constitute federal approval of the plants’ operations, nor does it constitute significant federal involvement in or control over their operations except for the specific operations that must comply with federal meat inspection requirements. The action merely switches the funding of such inspections from a public source (i.e., federal appropriated funds) to a private source (i.e., the horse slaughter plants) to maintain a longstanding program.... Defs.’ Opp’n at 12-13. Defendants miss the point. While Defendants and Defendanb-Intervenors state that the Rule “merely adjusts the funding arrangement, from direct federal funding to a voluntary fee-for-service program,” Def-Intervs.’ Opp’n at 1, the fact is that the Interim Final Rule creates a new inspection mechanism under an entirely distinct statutory rubric. Pursuant to 40 C.F.R. § 1508.18, NEPA applies to actions which constitute “new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals (§§ 1506.8, 1508.17).” 40 C.F.R. § 1508.18. The Interim Final Rule is clearly a “new” activity, as it constitutes a new agency rule as described in 40 C.F.R. § 1508.18. See also supra § III(A)(2). However, pursuant to a line of cases, actions which simply perpetuate the “status