TRANSPORTATION RESEARCH BOARD COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (AL050) THE NATURAL LAWYER. Volume 18 April, 2011 Number 2

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1 TRANSPORTATION RESEARCH BOARD COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (AL050) THE NATURAL LAWYER Volume 18 April, 2011 Number 2 Richard A. Christopher, Editor HDR Engineering, Chicago richard.christopher@hdrinc.com This newsletter is available by free of charge. Anyone who wishes to be added to the circulation list or would like to change an address should send a message to the Editor at the address listed above. This newsletter is an unedited committee product that has not been subjected to peer review. The opinions and comments in these articles do not represent the views of the Transportation Research Board. NEW CEQ GUIDANCE ISSUED ON MITIGATION AND MONITORING IN EIS S AND EA S Submitted By George Mannina and Carollyn Lobell gmannina@nossaman.com; clobell@nossaman.com After decades of no new guidance or regulation, the Council on Environmental Quality ( CEQ ) continues its efforts to modernize and reinvigorate the National Environmental Policy Act ( NEPA ) in conjunction with NEPA s 40 th anniversary. On January 21, 2010, the CEQ published final guidance ( Guidance ) on establishing, implementing, and monitoring mitigation measures adopted in environmental assessments ( EAs ) and environmental impact statements ( EISs ) prepared pursuant to the NEPA. 76 Fed. Reg (Jan. 21, 2010). This Guidance was issued in response to concerns by environmental organizations and CEQ officials that environmental mitigation plans are often not implemented. Most, if not all, federal agencies have their own NEPA requirements relative to mitigation which often expand CEQ s regulations in this regard or at least formalize the agency s internal procedures relative to mitigation. Many federal agencies have good track records on implementing mitigation measures for their own projects, or overseeing implementation for projects they permit, approve or license. But, questions remained about the use of mitigation commitments to support a Finding of No Significant Impact. 1

2 Further, several NEPA task forces and roundtables identified enforcing agency mitigation commitments and accountability for mitigation as topics warranting attention, in part to maintain the integrity of the NEPA process. Although the Guidance is not a rule or regulation, its practical effect, considering the deference courts give to CEQ interpretations of NEPA, has the potential to change whether and how actions and permits subject to NEPA can go forward. Mitigation includes minimizing, rectifying, reducing, and compensating for the impacts of an action. Significantly, it also includes avoiding an impact by not taking the proposed action. 40 C.F.R. 1508(20). CEQ s regulations have long required that EISs analyze mitigation measures and that the final NEPA decision document identify the mitigation measures the agency is adopting. Id. at (f) and (c). CEQ s new Guidance states federal agencies should take steps to ensure mitigation commitments are implemented. The Guidance cites the U.S. Army Corps of Engineer s (Army s) NEPA policies as an appropriate model for other agencies. CEQ describes the Army s regulations as preventing the agency action from going forward unless all adopted mitigation is fully funded and will be implemented. CEQ s Guidance does not require other agencies to follow the Army s lead, but it does say CEQ views mitigation implementation and funding as critical. The Guidance goes on to say if an agency discloses the absence of full mitigation funding, the project could proceed unless mitigation is essential to a Finding of No Significant Impact issued as part of an EA. As to federally issued permits, the standards are the same. However, the Guidance specifically provides agencies can make funding and permitting decisions conditional on the performance of mitigation commitments by third parties. Presumably, any lack of such performance can lead to revocation of the permit or funding. CEQ s new Guidance states mitigation commitments should be carefully specified to include measurable performance standards or expected results. The Guidance calls monitoring fundamental and essential for ensuring the implementation of mitigation commitments citing 40 C.F.R (c) and If such monitoring shows the mitigation is not effective, the Guidance states the NEPA documents may need to be supplemented with new documents. CEQ s Guidance next provides that agencies should ensure their monitoring program tracks whether mitigation commitments are being performed. Toward that end, the Guidance states public involvement is key and agencies should provide for pubic access to mitigation monitoring information. Finally, the Guidance notes that monitoring the effectiveness of mitigation measures will provide agencies and the public with a baseline of data regarding what types of mitigation measures are effective. That information may become a guide for the agency and the public when considering future agency actions, permits, or funding. 2

3 This Guidance is the second NEPA guidance document published in the last sixty days by CEQ. The first document was the CEQ Guidance on Categorical Exclusions. CEQ has stated that the next guidance they intend to issue will address greenhouse gas emissions and climate change. 9TH CIRCUIT ABANDONS FEDERAL DEFENDANT RULE ON INTERVENTION AS OF RIGHT IN NEPA CASES Submitted by Paul S. Weiland In a decision issued January 14, 2011, in Wilderness Society v. U.S. Forest Service, an en banc panel of the United States Court of Appeals for the Ninth Circuit overturned a rule it instituted more than two decades ago precluding non-federal parties from intervening as of right in National Environmental Policy Act (NEPA) cases. The decision has substantial implications for parties that may have an interest in intervening in NEPA cases to defend the conduct and decisions of the federal government. Federal Rule of Civil Procedure 24 allows any party to seek to intervene in an ongoing civil action. A party can seek to intervene as of right provided its motion to intervene is timely, it claims an interest relating to the property or transaction that is the subject of the action, disposing of the action may as a practical matter impair or impede its ability to protect its interest, and no existing parties adequately represent that interest. In its prior precedent, the Ninth Circuit held that this rule does not provide a basis for wouldbe intervenors to defend the merits of a federal agency action under NEPA because NEPA is a procedural statute that binds only the federal government. Without dissent, the Ninth Circuit overruled its prior precedent concluding that the socalled Federal Defendant rule is inconsistent with the text of Rule 24 and that the application of the Federal Defendant rule in NEPA cases runs counter to the standards it applies in all other cases. At the same time it abandoned the Federal Defendant rule, the Ninth Circuit clarified that it would apply the body of precedent it developed respecting intervention as of right in non-nepa cases to NEPA cases going forward. The Court stated: To determine whether putative intervenors demonstrate the significantly protectable interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the interest is protectable under some law and whether there is a relationship between the legally protected interest and the claims at issue. Slip Op. at 804 (citation omitted). 3

4 This ruling will allow parties with a cognizable interest in an agency decision under NEPA, such as an Environmental Impact Statement and Record of Decision, to seek to intervene in both the merits and remedy stages of a lawsuit challenging that decision. Public and private parties alike that undertake projects that trigger the NEPA process (e.g., due to the need for a federal permit or the use of federal funding), such as construction of a new highway interchange or development of a piece of commercial real estate, now have the capability to defend such projects during NEPA litigation whereas before they were relegated to the sidelines. CANADIAN NATIONAL RAILWAY REQUIRED TO PAY FOR TWO GRADE SEPARATIONS DUE TO ACQUISITION OF CHICAGO AREA BYPASS RAILROAD Submitted by Richard A. Christopher Richard.christopher@hdrinc.com Canadian National Railway (CN) agreed to purchase the Elgin, Joliet and Eastern Railway (EJ&E) and applied to the Surface Transportation Board (STB) for approval. The EJ&E forms a loop around the Chicago area. CN bought the EJ&E and its three rail yards so that it could avoid the freight rail congestion in the Chicago Terminal. CN planned to avoid the congestion by diverting a significant portion of its freight traffic from its lines that run through the City to the loop that goes around. When the STB approved the transaction, it imposed a condition, among many others, that required CN to pay a high share of the cost for two grade separations (bridges) at two substantially affected rail/highway crossings that were expected to receive additional freight trains. At one crossing, CN was required to pay 67% of the construction cost. At the other crossing, CN was required to pay 78.5% of the construction cost. The two bridges are expected to cost CN approximately $68 million. CN challenged STB s authority to impose any mitigation conditions in this category of acquisition in the D.C. Circuit Court of Appeals. The Court reviewed the STB s interpretation of its statutory authority to impose mitigation conditions under the US Supreme Court s Chevron test. The Court upheld STB s interpretation and its reliance on NEPA s mandate to agencies to interpret and administer their organic statutes in accordance with NEPA s policies to the fullest extent possible. The Court noted that since railroad acquisitions frequently preempt local controls, the STB s reliance on NEPA may be the only way to address the impacts of these transactions. In the EIS prepared by the STB, the factors followed by FHWA were cited as guidance for the construction of grade separations; but the STB was not required to limit the railroad s contribution to 5% as required in FHWA funded projects. The Court rejected numerous other challenges to the findings in the EIS from a number of affected communities. 4

5 Village of Barrington, Illinois v. Surface Transportation Board, et al., D.C. Circuit No, , March 15, 2011 SOUTHERN CALIFORNIA MILESTONE YEAR MOTOR VEHICLE EMISSIONS BUDGET ADEQUACY FINDING UPHELD Submitted by Richard A. Christopher After EPA determined that Southern California did not meet the air quality standard for very small particulate matter (PM 2.5), the South Coast Air Quality Management District submitted a SIP showing how it intended to comply with the standard by Since the District wanted to be able to approve transportation plans and projects which required a finding of conformity with the SIP while the SIP was being reviewed, EPA needed to determine whether the motor vehicle emissions budgets in the SIP for the milestone years 2009 and 2012 and for 2015 were adequate. EPA determined that the budgets for the milestone years were adequate but that the budget for 2015 was not adequate. The basis for the distinction was that the 2009 and 2012 budgets were based on enforceable regulations that were already in place while the 2015 budget was based on regulations that had not yet been implemented. A group of petitioners objected to the finding of adequacy. The petitioners contended that without a 2015 budget that showed attainment of the air quality standard, EPA could not approve the budgets for the milestone years. The Court focused on the conformity rules. The rules say that EPA can calculate the total target emissions for 2015 and then do a linear calculation of the emissions for the milestone years. Since that is what EPA did, the adequacy determination was upheld. Natural Resources Defense Council v. USEPA, 9 th Circuit No , March 30, NOTES FROM THE CHAIR Submitted by Peggy Strand MStrand@Venable.com As we welcome Spring after a long winter, I hope that you are thinking about the 50 th Annual Legal Workshops, scheduled for July 17 to 20, A great program is in the works: more information will be available at very soon. We will hold a Committee meeting during the workshops. As always, your ideas and suggestions are welcome. 5

6 In Seattle, there will be three programs of special interest to our committee. There will be a retrospective presentation on the Overton Park litigation and Section 4(f), with folks who participated in that seminal transportation and environmental case. The Committee will present two break out sessions. One is "NEPA and Other Hot Topics", to cover new Council on Environmental Quality guidance and other topics. The second is "Superfund Rises Again: Commencement Bay Litigation and State Liability", to cover the recent decision holding a state transportation department liable under Superfund for discharges from stormwater systems. Great news for our Committee and The Natural Lawyer! At the January 2011 TRB Annual Meeting, Rich Christopher was presented with the Vance Award. The following information was cited in the presentation and certificate: The John C. Vance Award may be given annually to recognize the author(s) of an outstanding paper published by TRB, or a presentation made at any TRB forum, or the person(s) responsible for a continuing, exceptional publication sponsored by the Legal Resources Group that advances the study, understanding and implementation of transportation law. The award is named in honor of John C. Vance, who served with distinction as the Board's Counsel for Legal Research from 1968 until his retirement in Richard Christopher is being recognized as the person responsible for The Natural Lawyer, a continuing, exceptional publication sponsored by the Environmental Issues in Transportation Law Committee Mr. Christopher has long served as Editor and guiding spirit for The Natural Lawyer, a quarterly publication summarizing cases, regulations and other matters of importance to environmental lawyers in transportation. He conducts the research to identify topics, coordinates work of other writers and regularly writes articles himself. The Natural Lawyer is available through TRB releases to the community of TRB professionals interested in environmental law and policy. All of us know how much Rich's hard work in environmental law benefits the TRB community. I am thrilled that the TRB community recognized his outstanding efforts with the Vance Award. Please join me in congratulating our fine Editor. The Award also reflects well on all of Committee members and friends who contribute to continue the good work of The Natural Lawyer. Please stay in touch with our Editor Rich Christopher with ideas and articles in the future. 6

7 NEXT DEADLINE IS JUNE 15, 2011 Anyone who wishes to submit an article for the July, 2011 edition of this newsletter should send the article to the Editor at by June 15, Please use Microsoft Word. 7