§1.5 - NEPA Process

• Jurisdiction: Washington

§1.5 NEPA PROCESS

The process for agency actions under NEPA is discussed below.

(1) Timing

The CEQ regulations state that [a]gencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts. 40 C.F.R. §1501.2. The regulations also provide additional guidance on the timing of specific agency actions pursuant to NEPA. For an EIS, the agency shall

commence preparation ... as close as possible to the time the agency is developing or is presented with a proposal so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.

40 C.F.R. §1502.5 (citations omitted); Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (an EIS should generally be prepared at the earliest time prior to implementation of the proposed action, so that alternative courses of action with less severe environmental consequences can be considered). For projects directly undertaken by a federal agency, the EIS must be prepared at the feasibility analysis (go-no go) stage. 40 C.F.R. §1502.5(a). For applications submitted to federal agencies, the EIS or environmental assessment (EA) must be commenced no later than immediately after the application is received, and agencies are encouraged to begin preparation of the relevant NEPA documentation even earlier in conjunction with the applicant. 40 C.F.R. §1502.5(b). For adjudications, the EIS must precede the final staff recommendation and that portion of the public hearing related to the impact study. 40 C.F.R. §1502.5(c). Finally, for rule making, the draft EIS must accompany the proposed rule. 40 C.F.R. §1502.5(d).

Once the NEPA process has been initiated, the CEQ regulations state that no action concerning the proposal shall be taken which would: (1) [h]ave an adverse environmental impact; or (2) [l]imit the choice of reasonable alternatives. 40 C.F.R. §1506.1(a); see also40 C.F.R. §1502.2(f) ([a]gencies shall not commit resources prejudicing selection of alternatives before making a final decision). The courts have stated that an agency must conduct the appropriate NEPA review prior to making any irreversible and irretrievable commitment of resources. Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000) (agreement to support Makah whaling quota prior to considering the potential environmental impacts of proposed action); Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (unless lease precludes all surface-disturbing activities, the sale of federal oil and gas leases constitutes an irretrievable commitment of resources requiring EIS), cert. denied sub nom. Sun Explor. & Prod. Co. v. Lujan, 489 U.S. 1012 (1989); Save the Yaak Comm. v. Block, 840 F.2d 714 (9th Cir. 1988) (preparation of EA after award of road reconstruction contracts was untimely). But see Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002) (no irreversible and irretrievable commitment when Forest Service made final decision on amendment of forest management plan after preparation of EA); Friends of Southeasts Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998) (upholding decision not to prepare EIS because Forest Services tentative harvest schedule did not constitute an irretrievable commitment of resources); Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclam., 655 F.3d 1000 (9th Cir. 2011) (procuring water use permits prior to EA completion was not irreversible commitment because water not committed to project until after EA and finding of no significance (FONSI) publication).

(2) Lead agency

In some cases, more than one federal agency will be involved in the proposed action. The CEQ regulations allow for the designation of a lead agency to supervise the preparation of an EIS when more than one agency either (1) [p]roposes or is involved in the same action; or (2) [i]s involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity. 40 C.F.R. §1501.5(a). When determining which agency shall be designated the lead agency, the following factors are to be considered, in descending order of importance: (1) magnitude of involvement; (2) authority to approve or disapprove the project; (3) expertise regarding the environmental effects; (4) duration of involvement; and (5) sequence of involvement. 40 C.F.R. §1501.5(c). If the agencies cannot reach an agreement, the CEQ may, upon request, designate a lead agency. 40 C.F.R. §1501.5(e). The CEQ regulations also provide a role for cooperating federal agencies in the NEPA process. 40 C.F.R. §1501.6; 40 C.F.R. §1508.5 (cooperating agency is defined as any Federal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal).

Practice Tip: It is now well settled that preparation of an EIS can be delegated to state officials or even to private parties, as long as the responsible federal official retains critical and supervisory control over the EIS process and does not rubber stamp the document submitted. Brandon v. Pierce, 725 F.2d 555 (10th Cir 1984), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992), cert denied, 506 U.S. 817 (1992). The federal agency is required to independently review any information submitted and is responsible for its accuracy. 40 C.F.R. §1506.5(a). Similarly, for an EIS or EA, the agency must provide guidance, undertake its own evaluation of the environmental issues involved, and take responsibility for the scope and content of the document. 40 C.F.R. §1506.5(b), (c).

(3) Determining significance

NEPA requires all federal agencies to prepare an EIS for major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. §4332(2)(C). Early NEPA cases adopted a two-pronged analysis, considering whether the action was both major and significantly affecting the quality of the environment. E.g., Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972). The CEQ has since adopted in the regulations a unitary standard, stating that [m]ajor reinforces but does not have a meaning independent of significantly. 40 C.F.R. §1508.18. As a result, the requirement to prepare an EIS will be triggered by actions that may have a significant effect. E.g., Ocean Advocates v. U.S. Army Corps of Engrs, 402 F.3d 846, 864-65 (9th Cir. 2005).

The CEQ regulations define significantly to include considerations of both context and intensity[.] 40 C.F.R. §1508.27. By referring to context, the regulations require the actions significance to be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. 40 C.F.R. §1508.27(a). The CEQ recognizes that significance can vary depending upon the setting of the proposed action. For example, the significance of a site-specific action will depend upon the effects in that locale and not in the world as a whole. Id. In addition, both the short-term and long-term effects must be considered when examining significance. Id.

The CEQ regulations define intensity as the severity of impact. 40 C.F.R. §1508.27(b). The regulations provide a series of factors that should be considered when evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(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.

(6) 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.

(7) 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.

(8) 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 historical resources.

(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.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

Id. Because of the fact-specific nature of the determination, there are few general rules that are applicable to a finding of significant effect. Depending upon the circumstances, the presence of one of these factors may be sufficient to require the preparation of an EIS. See Natl Parks & Conserv. Assn v. Babbitt, 241 F.3d 722 (9th Cir. 2001), cert. denied sub nom. Holland-Am. Line-Westours, Inc. v. Natl Parks & Conserv. Assn, 534 U.S. 1104 (2002). An agency is required to take...