Ron Bass, J.D., AICP, Senior Regulatory Specialist Jones & Stokes

1. Oregon Department of Transportation Common NEPA Mistakes and How to Avoid Them January 17, 2008 • Ron Bass, J.D., AICP, • Senior Regulatory Specialist • Jones & Stokes

2. Workshop Objectives • Review some of the most common mistakes that federal agencies make in implementing NEPA • Discuss how federal agencies can avoid such mistakes • Review how the courts have interpreted NEPA relating to these areas of practice

3. Common NEPA MistakesForgetting NEPA’s Fundamental Purpose Why NEPA was necessary NEPA’s objectives NEPA’s policy language How NEPA differs from other laws

4. Why Was NEPA Necessary? Environmental factors rarely considered Little public notification about projects Public comments fell on deaf ears No interagency coordination Decisions made "behind closed doors" with no explanations Limited opportunity for judicial enforcement

5. NEPA’s Objectives • Provides agencies with supplemental legal authority to address environmental issues • Introduces procedural reforms • Requires disclosure of environmental information • Leads to resolution of environmental problems • Fosters intergovernmental coordination and cooperation • Enhances public participation in government planning and decision making

6. NEPA’s Statutory Purposes • Declare national policy encouraging productive, enjoyable harmony between people and environment • Promote efforts that prevent, eliminate damage to environment and biosphere and stimulate health, welfare • Enrich understanding of ecological system, important natural resources • Establish CEQ 42 U.S.C. 4341

7. NEPA Section 101:Congressional Declaration of National Environmental Policy • fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; • assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; • attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; • preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice; • achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and • enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

8. NEPA Section 102: Requirement to prepare an “EIS” • All agencies of the federal government shall 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 by the responsible official on • (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.

9. How Is NEPA Different fromOther Environmental Laws? • Interdisciplinary • Emphasizes disclosure of information • Assumes that good information will lead to better decisions • Limited substantive effect; does not mandate a specific result • Requires coordination with other laws

10. Common NEPA MistakesMisunderstanding the Roles that Agencies Play in the NEPA Process • Also “Participating • Agencies” under • (SAFETEA-LU)

11. Lead Agency • Definition • The agency with primary responsibility for complying with the environmental document under NEPA • Factors to consider • Magnitude of involvement • Approval/disapproval authority over proposed action • Expertise with regard to environmental effects • Duration of involvement • Sequence of involvement

12. Cooperating Agency • Federal agency with “jurisdiction by law” • Federal agency with “special expertise” • State or local agencies with either of the above • Native American Tribes

13. Common NEPA MistakesFailure to Understand and Adhere to NEPA’s Procedural Process

14. Three Phases of NEPA • Phase 1: Determine whether NEPA applies to proposed action • Is the proposal for an action? • Is the proposed action federal? • Has Congress exempted action from NEPA? • Does categorical exclusion apply? • Phase 2: Prepare EA and determine whether EIS is required • Will proposed action have effect on quality of the human environment? • Are effects significant? • Phase 3: Prepare EIS or FONSI

15. Common NEPA MistakesImproperly Defining the “Proposed Action” “Segmenting” a proposed action into parts to avoid or minimize NEPA review and evaluation Failure to account for “related,” and “connected” actions

16. When Must Related or Connected Actions Be Evaluated in the Same NEPA Document? • Action A and Action B are interrelated segments • Action A is commitment to Action B • Action B is foreseeable future phase of Action A • Action A without B would be irrational or unwise

17. When May Related or Connected Actions Be Evaluated in Separate NEPA Documents? • Action A and Action B have independentutility • Action A and Action B are independently justified • Action B is a tiered activity under Program A • Action A is federal, Action B only subject to limited federal control or jurisdiction (e.g., small federal handle)

19. Common NEPA MistakesMisuse of Categorical Exclusions Use of so-called “mitigated” categorical exclusions Stretching categorical exclusions beyond what was intended Failure to consider “extraordinary circumstances” Failure to document the CATEX Failure to complete consultations under other laws

20. What Are Categorical Exclusions? • Activities normally causing no significant environmental effects • Specified in agency NEPA regulations • Documentation required by some federal agencies • Exceptions for extraordinary circumstances

21. FHWA Categorical Exclusions Three sources: • DOT Categorical Exclusions 23 CFR 771.117 [c] - “C List” • USDOT Categorical Exclusions23 CFR 771.117 [d] - “D List” • Programmatic CE Agreement between FHWA and ODOT (May 3, 1999)

22. Exceptions to Categorical Exclusions Extraordinary circumstances which would cause an otherwise excluded action to have the potential to significantly affect the quality of the human environment; for example • Wetlands • Endangered species • Historic resources • Cumulative effects

23. Common NEPA MistakesPre-determining That an EIS Will Not be Necessary, Then Trying to Justify Such Conclusion After-the-Fact FONSI “No way we need an EIS for this project….!”

24. Common NEPA MistakeImproper Use of Environmental Assessments • Forgetting the purposes of an EA • Provide sufficient evidence to determine whether or not an EIS required • Supporting the decision to prepare a FONSI • Facilitate preparation of EIS when required • Using the EA as a “surrogate” for an EIS

25. Environmental Assessments: Theory and Reality • Theory—EA is an interim tool to help an agency decide whether or not to prepare an EIS • Reality—EA has become a surrogate for the EIS • Most agencies have no intention of preparing EISs on most proposed actions • Most agencies have developed “mini-EIS” processes for the preparation and review of environmental assessments • EAs outnumber EISs by about 50,000 to 500 per year

26. Common NEPA Mistakes Failure to Explain and Support Conclusions in an EA Failure to use and/or explain the “context” and “intensity” criteria that define “significance” Failure to rely on established thresholds to determine “significance” or “non-significance” Failure to take a “HARD LOOK” at the environmental impacts of a proposed action

27. Definition of “Significantly” in the CEQ NEPA Regulations (40 CFR 1508.27) “Significantly” as used in NEPA requires consideration of both context and intensity • 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. “Significance” varies with the setting of the proposed action. For Instance,, in the case of a site-specific action, significance would usually depend upon the effects in the locales rather than the world as a whole, Both short-and long-term effects are relevant

28. Determining the Context of an Action

29. CEQ NEPA Regulations40 CFR 1508.27(Cont.) • Intensity refers to the severity of the impact. Responsible officials must bear in mind that more than one agency make made decision about partial aspects of a major action. The following (10 criteria) should be considered in evaluating intensity:

30. Intensity of an Impact: (1) Impact May be Both Beneficial and Adverse A significant environmental effect may exist if the Federal Agency believes that on balance the effect (of the action) will be beneficial

31. Intensity of an Impact: (2) Public Health The degree to which the proposed action affects public health or safety

32. Intensity of an Impact: (3) Unique Characteristics Unique characteristics of the geographical area, such as proximity to historical or cultural resources, parklands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas

33. Intensity of an Impact: (4) Degree of Controversy The degree to which the effect on the quality of the human environment are likely to be highly controversial

34. Intensity of an Impact: (5) Unique or Unknown Risks The degree to which the possible effects on the human environment are likely to be highly uncertain or involve unique or unknown risks

35. Intensity of an Impact: (6) Precedent-Setting The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration

36. Intensity of an Impact: (7) Cumulative Effects Whether the action is related to other actions with individually insignificant, but cumulatively significant, impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts

37. Intensity of an Impact: (8) Historic, Cultural, or Scientific Resources The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in, or eligible for listing in, the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historic resources

38. Intensity of an Impact: (9) Special-Status Species 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

39. Intensity of an Impact: (10) Violations of Federal, State, or Local Environmental Law Whether the action threatens a violation of federal, state, or local law, or a requirements imposed for the protection of the environment

40. The Fundamental Question—Are Impacts Expected to Be “Significant” or Not and Why?

41. National Parks and Conservation Association v. Babbitt • EA prepared by NPS for permits to allow increase of cruise ship traffic in Glacier Bay, Alaska • Context—Glacier Bay National Park and Preserve is a place of "unrivaled scenic and geological values associated with natural landscapes" and "wildlife species of inestimable value to the citizens." The Bay was proclaimed a national monument in 1925 and a national park in 1980. UNESCO designated Glacier Bay an international biosphere reserve in 1986 and a world heritage site in 1992. [(9th Cir. 2001) 241 F. 3d 722 Cert. Denied 534 U.S. 1104]

42. National Parks and Conservation Association v. Babbitt(Cont.) [(9th Cir. 2001) 241 F. 3d 722 Cert. Denied 534 U.S. 1104] • Intensity • Unknown risks to marine mammals • Potential violations of state air quality standards • Highly controversial • NPS deferred essential studies to the future as mitigation and prepared a FONSI • Court held: NPS violated NEPA; EIS required

43. Anderson v. Evans (9th Cir. 2002) 314 F 3d 1006 • NOAA prepared an EA for resumption of ancestral whale hunting by the Makah tribe in the Pacific Northwest • Context • Local whale population • Straight of Juan de Fuca • Regional whale populations (west coast migration route) • Intensity • Highly Controversial • Uncertainty as to size, nature and extent of impacts • Precedent-Setting cumulative effect on whale hunting in view of IWC treaties

44. Anderson v. Evans(Cont.) (9th Cir. 2002) 314 F 3d 1006 NOAA concluded that the whale hunt would not “significantly affect the quality of the human environment” and prepared a FONSI Court Held: NOAA violated NEPA; EIS should have been prepared Quoting Melville: While in life the great whale's body may have been a real terror to his foes, in his death his ghost [became] a powerless panic to [the] world." Herman Melville,  [*2]  Moby Dick 262 (W.W. Norton & Co. 1967) (1851).

45. Ocean Advocates v. U.S. Army Corps of Engineers (9th Cir. 2004) 402 F. 3d 846 • Corps prepared an EA on an a proposed oil company marine terminal in the Puget Sound, adopted a FONSI • Context—sensitive marine environment of the Puget Sound • Intensity • Cumulative effects of oil and other pollution from this and other projects • Uncertainty and unknown risks related to these cumulative effects • Court held: • Corps failed to provide any reasons for its conclusions of no significant impact, let alone a “convincing statement of reasons” as required by NEPA • Conclusions of no significant impact were based only on the self-serving claims of project applicant • EIS required due to presence of two “Intensity” criteria

46. Cumulative Impacts as a Trigger for an EIS • Hall v. Norton (9th Circuit 2001) 266 F. 3d 969 • BLM EA on a land exchange failed to account for cumulative air quality effects of induced growth and other exchanges • Kern v. BLM (9th Cir. 2002) 284 F 3d 1062 • BLM EA on RMP and timber sales failed to consider cumulative effects to tree fungus • Native Ecosystems v. Dombeck (9th Cir. 2002) 304 F.3d 886 • USFS EA failed to consider cumulative effects of amending a Habitat Effectiveness index in a Forest Plan • Klamath-Siskiyou Wildland Center v. BLM (9th Cir. 2004) 387 F.3d 989 • BLM EA on timbers sales failed to consider cumulative effects on water quality

47. Cold Mountain v. Garber (9th Cir. 2004) 375 F. 3d 884 • USFS prepared an EA/FONSI for the issuance • of a permit to Montana Department of Livestock for “hazing” of Bison herds to keep them within Yellowstone National Park • Context: Yellowstone bison herd has been brought back from near extinction by careful management • Cold Mountain challenged based on the following intensity factors: • Controversy due to opposition to project • Uncertainty due to failure of USFS to assess direct and cumulative impacts on the herd • Court held: EA/FONSI was adequate • Existence of opposition does not automatically render a project “controversial” • Direct and cumulative impacts were adequately evaluated and were not significant, thereby supporting the FONSI

48. Common NEPA MistakesInadequate Scoping Insufficient public involvement Failure to listen to people’s suggestions

49. Common NEPA MistakesInadequate Agency Consultation Failure to consult with “cooperating” and other agencies Failure to heed the advice and comments of “cooperating” and other agencies Failure to properly document the consultation

50. Common NEPA MistakesFailure to Build the “Administrative Law Pyramid” • FONSI does not provide reasons • FONSI not supported by EA • EA lacks data, analysis, explanations