§ 7.2 - Generally Applicable Statutes

• Jurisdiction: Washington

§7.2 GENERALLY APPLICABLE STATUTES

Almost any energy development in this state, whether renewable or fossil fuel, will have to take into consideration one or more federal or state statutes in the course of the project. The generally applicable statutes and ordinances, discussed briefly below as they particularly pertain to energy projects in Washington state, are the federal National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321-4347; the federal National Historic Preservation Act, 16 U.S.C. §§ 470-470x-6; the federal Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544; the Washington State Environmental Policy Act (SEPA), Chapter 43.21C RCW; and the state Growth Management Act, Chapter 36.70A RCW.

(1) National Environmental Policy Act

A project on federal land within the state of Washington must be reviewed under the federal National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, and applicable regulations. See 40 C.F.R. §§ 1500.1-1508.28 for the NEPA procedural regulations generally applicable to all federal agencies; see also 7 WASHINGTON REAL PROPERTY DESKBOOK Ch. 1 (Wash. St. Bar Assoc. forthcoming 2010). The primary agencies likely to be involved in decisions concerning an energy project on federal lands are the Bureau of Land Management (BLM), the U.S. Forest Service (USFS), and the Department of Interior (DOI). BLM's NEPA guidelines are contained in a handbook, Bureau of Land Mgmt., NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK H-1790-1 (2008), available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_handbook.Par.24487.File.dat/h1790-1-2008-1.pdf. The USFS has codified its NEPA guidelines previously contained in FOREST SERVICE MANUAL 1950 and FOREST SERVICE HANDBOOK 1909.15 in 36 C.F.R. pt. 220.

NEPA does not apply to decisions by Indian tribes because of their sovereign immunity, but because federal law requires the Secretary of the Interior to approve any lease of tribal trust lands, such a decision would constitute a major federal action subject to NEPA. Compare Village of Hotvela Traditional Elders v. Indian Health Services, 1 F.Supp.2d 1022, 1027-28 (D. Ariz. 1997) (no language in NEPA requiring tribes to engage in NEPA review), aff'd, 141 F.3d 1182 (9th Cir. 1998), cert. denied, 525 U.S. 1107 (1999), with Cady v. Morton, 527 F.2d 786, 793 (9th Cir. 1975) (Interior Secretary approval of coal leases on Crow Reservation in Montana was major federal action under NEPA); see also 25 U.S.C. §§ 177a, 415, & 2103 (requiring Secretary of Interior approval of agreements or contracts with Indian tribes).

The NEPA process for an energy project typically is the same as for other federal projects. The final step in the federal decision-making process is issuance of a Record of Decision (ROD). Before bringing any legal challenges to the decision, some agencies, such as BLM and USFS, have an administrative appeal process that must be exhausted. 36 C.F.R. pt. 220 (USFS); 43 C.F.R. pt. 4 (Interior Board of Land Appeals).

NEPA is described as a "process" statute, not a substantive statute. See Robertson v. Methow Valley Citizens' Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). That is, it describes a review process, but does not in itself impose any standards. Id. Thus, even where significant impacts are found, if the review procedures are followed, NEPA by itself will not prevent an agency from issuing a permit. Id. at 350 ("if the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs")

There is no private right of action under NEPA; enforcement of its procedures occurs only through the federal Administrative Procedure Act, 5 U.S.C. §§ 701-706, following final agency action, whether that action is issuing a Finding of No Significant Impact, issuing a Record of Decision after an Environmental Impact Statement (EIS), or taking action without preparing an environmental assessment or EIS. N. Idaho Cmty. Action Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1152 (9th Cir. 2008); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988).

(2) National Historic Preservation Act

The National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470-470x-6, consists of "a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance." San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1093-94 (9th Cir. 2005). NHPA is described as working in parallel with NEPA; whereas NEPA requires consideration of the environment, NHPA addresses historic sites. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 787 (9th Cir. 2006) (quoting United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993)). NHPA would be the primary vehicle for addressing issues concerning historic sites because NEPA has no independent requirement that an agency examine, separate and apart from any environmental impacts, the impact that a federal action will have on historic properties. See, e.g., North Id. Cmty. Action Network, 545 F.3d at 1156-57 (NEPA only requires discussions of historic and cultural resources).

Section 106 of NHPA, codified at 16 U.S.C. § 470f, often is referred to as a "stop, look, and listen" provision that requires each federal agency to consider the effect of its actions on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register of Historic Places (National Register). Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999); 16 U.S.C. § 407f. The NHPA consultation applies to any "undertaking," which is defined as any "project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval." 16 U.S.C. §470w(7); 36 C.F.R. § 800.16(y).

Energy projects are among the undertakings that may come within the scope of NHPA. See Pit River Tribe, 469 F.3d 768 (geothermal); Mont. Wilderness Ass'n v. Fry, 310 F.Supp.2d 1127...