February 23-24, 2009 Robert D. Thornton, Partner

Transcription

1 National Environmental Policy Act: A Primer February 23-24, 2009 Robert D. Thornton, Partner

2 NEPA Fundamentals What is NEPA? Statement of Environmental Policy Environmental Review Process Institutional Oversight What NEPA is Not Regulation of Wholly Non-Federal Activity Local or State Regulation Regulation of Private Activity Substantive Regulation 2

3 NEPA Purposes Require federal agencies to take a hard look at the environmental impacts of their actions Disclose to the public information concerning the impacts of federal actions and alternatives 3

4 NEPA History Signed into law January 1, 1970 Purposes: Encourage productive and enjoyable harmony between man and his environment; Promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; Enrich the understanding of the ecological systems and natural resources important to the Nation; and Establish Council on Environmental Quality. 4

5 Council on Environmental Quality Created to administer NEPA Regulations promulgated in 1978 Counterpart regulations by other federal agencies Stabilize NEPA interpretation Reduce delays, minimize paperwork Courts give CEQ regulations deference Practice Tip: Review CEQ and agency regulations and guidance applicable to particular proposed action 5

6 What the NEPA Regs Promised 6

7 What They Delivered 7

8 EIS Requirement: The Action Forcing Mechanism All federal agencies must include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement on: the environmental impact of the proposed action any adverse environmental effects which cannot be avoided, alternatives to the proposed action the relationship between local short-term uses of man s environment and the maintenance and enhancement of longterm productivity any irreversible commitments of resources which would be involved in the proposed action 8

9 One Step at a Time: The NEPA Process in a Nutshell Does NEPA Apply? Is there a federal action? Is there a categorical exclusion? Is there a statutory or case law exemption? NEPA Applies Prior NEPA compliance? Need for supplemental compliance? Prepare Environmental Assessment Finding of No Significant Impact or Environmental Impact Statement 9

10 Federal Action: What is Federal? Applies to federal actions Federal programs Federal projects Federal regulations Federal land and resource management plans Federal grants and loans Permits and approvals 10

11 NEPA Applicability to Non-Federal Parties Non-federal actions may be federalized Action requires: Federal permit Federal regulatory decision Federal Funding or other assistance The non-federal project is federal because the federal agency has enabled the nonfederal entity to act 11

12 Small Federal Handle Non-federal activity may not be federalized where there is only minor federal control of activity Small portion of gas pipeline requires federal permit to cross river Multi-phased residential project requires federal permit for only one, independent phase Scope of NEPA review is narrowed but not eliminated 12

13 Practice Tips Consider extent of cumulative federal involvement or control over project Determine whether portion of project can proceed without federal approval Consider defining and timing project to minimize federal control 13

14 Agency Action Applies to discretionary actions See State of South Dakota v. Andrus, 614 F.2d 1190 (8th Cir. 1980) Inaction is not action Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980) 14

15 Agency Action Impacts include larger project/subsequent activities related to federal approval Highway interchange -- requires evaluation of connecting highway and development induced by the highway Approval of oil and gas lease requires evaluation of oil and gas exploration and production Approval of marine terminal requires evaluation of associated terminal facilities Approval of wetlands permit requires evaluation of upland development that can only occur as a result of the wetland permit 15

16 Agency Action Proposals as Action NEPA requires evaluation of proposals for actions Timing Question - When does an idea or concept become a proposal? NEPA applies to precise proposal for action and not when an action is planned or contemplated 16

17 What s the Difference? EA, FONSI vs. EIS Environmental Assessment Evaluate whether the proposed action will have significant impact Check the specific agency s NEPA procedures U.S. Army Corps of Engineers, 33 C.F.R. parts 230, 325 Federal Highway Administration, 23 C.F.R. part 771 Department of the Interior, Department Manual Part

18 Environmental Assessment Required Content Each agency may have specific regulations identifying the format and content requirements for an EA The CEQ NEPA regulations require concise public document including: Need for the proposed action Proposed action and alternatives Environmental impacts of the proposed action and alternatives Agencies and persons consulted during preparation of the EA. 40 C.F.R (b) 18

19 Everything s Cool: The FONSI Finding Of No Significant Impact ( FONSI ) documents finding that a proposed action would not have a significant effect The federal agency preparing the EA issues the FONSI if it decides an EIS is not required FONSI need not be detailed But must state reasons supporting FONSI summarize or attach the EA 19

20 Everything s Cool: The FONSI Available for review by the public Each agency has its own public notice requirements Close Calls Borderline cases Unusual case, new kind of action, or sets a precedent Scientifically or publicly controversial, or Similar to one that normally requires an EIS Can t piecemeal project to justify FONSI 20

21 Practice Tips FONSI entails inherent litigation risks Appropriate where strong factual record is available If an EA/FONSI is lengthy and complex, an EIS may be prudent Evaluate the potential opposition Consider administrative and litigation delay risks 21

22 The EIS Action Has the Potential to Significantly Affect the Quality of the Human Environment Lead Agency and Cooperating Agencies NEPA regulations encourage streamlining NEPA process through identification of lead and cooperating agencies Lead agency Cooperating agency Agencies often refuse to be cooperating agency Does not prohibit preparation of separate environmental document 22

23 Practice Tips Seek to have all non-lead agencies agree to be cooperating agency Seek agreement among agencies on scope of analysis, technical studies, alternatives Evaluate streamlining tools on complex projects 23

24 Notice of Intent Lead agency publishes notice of intent ( NOI ) in the Federal Register NOI includes: Description of the proposed action Description of the possible alternatives Description of the scoping process, time and place of scoping meetings Name and address of the lead agency contact for the proposed action and EIS Practice Tip: Check additional agency notice requirements 24

25 Scoping Process Invite participation of affected federal, state, and local agencies, the proponent of the action, and other interested persons Determine the scope and significant issues to be analyzed in the EIS Identify and eliminate the issues which are not significant or covered by prior environmental review Allocate assignments for preparation of the EIS among the lead and cooperative agencies 25

26 Draft EIS EIS prepared by the lead agency or a contractor selected and supervised by the lead agency Non-delegation rule NEPA amendment authorizes delegation to state transportation agencies Joint document exception The EIS contractor must be selected and retained by lead agency Joint federal/state environmental document 26

27 Draft EIS Applicants may provide information to the lead agency But the lead agency is required to exercise independent judgment and control Practice Tips: Extent of involvement of project applicant in EIS processes varies considerably No prohibition on applicant generation of information for use in the EIS Important to create record of lead agency control and exercise of independent judgment 27

28 Agency/Public Review and Comment Public notice of DEIS availability to interested persons and agencies Draft EIS filed with EPA EPA rates Draft EIS 28

29 Agency/Public Review and Comment Lead agency must also request the comments of: Appropriate state and local agencies which are authorized to develop and enforce environmental standards Indian tribes, when the effects may be on a reservation Any agency that has requested it receives statements on actions of the kind proposed The Applicant The Public (affirmatively soliciting comments from persons or organizations who may be interested or affected) 29

30 Agency/Public Review and Comment The lead agency must hold a public hearing on the Draft EIS when: Required by statute or Substantial environmental controversy over the proposed action Substantial interest in holding a public hearing Another federal agency with jurisdiction over the proposed action requests a public hearing The comment period must generally be at least 45 days, although the lead agency may extend the period 30

31 Final EIS Must include the agency s responses to all received comments Discuss opposing views on issues raised in the comments Cooling Off Period. Final EIS available for at least 30 days before making a decision on the proposed action 31

32 Record of Decision ROD includes: Agency s decision Alternatives considered Documents compliance with other laws National Historic Preservation Act Endangered Species Act Commitments to mitigation, monitoring and enforcement programs Practice Tip: Tell the Story 32

33 Key Elements: Direct and Indirect Effects Direct effects Caused by the action and occur at the same time and place Indirect effects Caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable Growth inducing effects Must analyze effects that are reasonably foreseeable Causal relationship between the proposed action and the indirect effect 33

34 Key Elements: Cumulative Impacts Impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions Different tests to determine the scope of cumulative impacts must be included in an EIS Ninth Circuit has applied a reasonably foreseeable test Tenth Circuit uses independent utility test Practice Tip: Check the law of the applicable court of appeals 34

35 Key Elements: Cumulative Impacts Rule of reason Discussion -- reasonably thorough to allow informed decision General statements about possible effects and risk are not sufficient Must include some quantified or detailed information 35

36 Key Elements: Mitigation Requirements NEPA implicitly requires the discussion of mitigation measures since it requires the discussion of any adverse environmental effects which cannot be avoided CEQ regulations also require the discussion of mitigation measures in EISs NEPA does not include a duty to mitigate NEPA does not require final mitigation plan 36

37 Practice Tips Mitigation plans -- sufficiently specific to inform public of extent and adequacy of mitigation Should retain flexibility for project modifications and more precise permit conditions Should reflect substantive regulatory standards whenever available Difficult to modify a mitigation commitment once made 37

38 Alternatives Analysis: Heart of the EIS Rigorously explore and objectively evaluate all reasonable alternatives Explain why any alternatives were eliminated Consider reasonable alternatives not within the jurisdiction of the lead agency No-action alternative 38

39 Rule of Reason Rule of reason in the consideration of alternatives Remote and speculative alternatives not required Bounded by notions of feasibility Evaluation may reflect evaluation of alternatives in state environmental documents What is a reasonable range depends on particular facts and circumstances of the action 39

40 Alternatives Alternatives driven by purpose and need Narrow definition of the project will limit alternatives Alternatives may be required to consider: Secondary alternative the project carried out in a different manner (more environmental way) Primary alternative an alternative that would make the proposed action unnecessary 40

41 Practice Tips Range of alternatives should satisfy other regulatory requirements Section 404 (least environmentally damaging, practicable alternative) Alternatives should be feasible Alternatives should address major environmental issues Avoid straw man alternatives Seek apples to apples comparisons 41

42 NEPA Flow Chart Phase 1 Proposed Action Phase II Exclusion Categorical Exclusion or Other Exemption No Exclusion Phase III No Environmental Assessment Yes EIS Notice of Intent Scoping Process Draft EIS Agency Action FONSI Agency Action Agency/Public Review and Comment Final EIS Record of Decision Agency Action 42

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44 Contact Us Robert D. Thornton, Esq. Nossaman LLP Von Karman Ave, Suite 1800 Irvine, CA Phone: Fax: nossaman.com 44