CHAPTER 1 NEPA BASICS AND INTERRELATIONSHIP WITH OTHER ENVIRONMENTAL LAWS
| Jurisdiction | United States |
(Apr 2012)
NEPA BASICS AND INTERRELATIONSHIP WITH OTHER ENVIRONMENTAL LAWS
Office of the Regional Solicitor
U.S. Department of the Interior
Portland, Oregon
BRIAN PERRON is an attorney in the Office of the Regional Solicitor, U.S. Department of the Interior, Portland, Oregon, and is the primary attorney assigned to counsel BLM Oregon on all matters related to forest management, including FLPMA, NEPA, ESA, MBTA, and Clean Water Act issues, as well as contract claim, reciprocal rights-of-way, and timber trespass matters. In addition, Mr. Perron has handled a number of mineral contest hearings as lead and co-lead attorney.
Brian Perron
Attorney
U.S. Department of the Interior
Office of the Solicitor
Pacific Northwest Region
* Views expressed do not necessarily represent the views of DOI or the United States Government.
NEPA Overview
What is NEPA?
• Passed in 1969, Signed into law January 1, 1970
Why?
• 1969 Santa Barbara Oil Spill
• Rachel Carson's "Silent Spring"
• Expansion of interstate highways
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How is NEPA Structured?
Statute
• National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970), codified as amended 42 U.S.C. § 4321 et seq.
• §101 declaration of envt. policy
• § 102 creates action-forcing procedures §202 Creates the CEQ
Regulations
• Council on Environmental Quality, 40 C.F.R. Part 1500
• Department-specific NEPA regs (e.g., DOI 43 C.F.R. Part 46)
Case law
• Federal judicial decisions
• Agency decisions (e.g., IBLA)
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CEO Guidance
• Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18,026, 18,035 (Mar. 17, 1981)
• CEQ Guidance Memoranda
Agency Guidance
• Department Manuals, Handbooks
What is NEPA's purpose regarding agency decision-making?
• 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;
• to enrich the understanding of the ecological systems and natural resources important to the Nation.
42 U.S.C. § 4321
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What policies does NEPA advance?
• Environment in trust to future generations;
• Safe & healthy environment
• beneficial uses without degradation, risk to health or safety, or other unintended consequences;
• Preserve historic, cultural, and natural heritage
• achieve a balance between population and resource use
• enhance the quality of renewable resources
• to enrich the understanding of the ecological systems and natural resources of national importance
42 U.S.C. § 4321
| Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). | Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 (1989) |
| • "It is to insure a fully informed and well-considered decision, not necessarily a decision that judges ...would have reached." | "'NEPA itself does not mandate particular results.' Instead, NEPA imposes only procedural requirements to 'ensur[e] that the agency...carefully consider[ed], detailed information concerning significant environmental impacts.'" |
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NEPA's "Action Forcing" Measure
include in ...report on proposals for... major Federal actions significantly affecting the quality of the human environment, a detailed statement... on
the environmental impact of the proposed action...
alternatives to the proposed action;
42 U.S.C. § 4332(C).
What is a Major Federal Action?
• Projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies
• Adoption of official policy, such as rules, regulations
• Adoption of formal plans which guide or prescribe alternative uses of federal resources
• Approval of specific projects or permits
42 U.S.C. § 4332(C); 40 C.F.R. §§ 1508.23 (proposal), 1508.14 (human environment), 1508.18 (major federal action)
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Environmental Impact Statement (EIS)
An EIS should contain-•
• a statement of the purpose and need for the action,
• a description of the affected environment,
• an analysis of alternatives to the proposed action,
• and the direct, indirect and cumulative effects of the proposed action and alternatives
• mitigation measures
40 C.F.R. 1502 .
Purpose and Need Statement
"The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action."
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Purpose and Need & Range of Alternatives
"The first thing an agency must define is the project's purpose. The broader the purpose, the wider the range of alternatives; and vice-versa."
"One obvious way for an agency to slip past the strictures of NEPA is to contrive a purpose so slender as to define competing reasonable alternatives out of existence."
Simmons v. U.S. Army Corps of Eng'rs, 120 F.3d 664, 666 (7th Cir. 1997).
Purpose and Need: Third Party Proposals
• The purpose and need statement considers public purposes against the background of the private need.
• BLM may not adopt "private interests to draft a narrow purpose and need statement that excludes alternatives that fail to meet specific private objectives..."
National Parks and Conservation Assoc. v. BLM, 606 F.3d 1058 (9th Cir. 2009).
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"While the [agency] had the obligation to explore alternative [rail] routes [for hauling Powder River Basin coal to power plants], we do not think that it was required to explore alternatives that... would not have fulfilled the project goals as defined by the [applicant]."
Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 546 (8th Cir. 2003).
Alternatives
• "This section is the heart of the environmental impact statement."
• The EIS shall "rigorously explore and objectively evaluate all reasonable alternatives" and "present the environmental impacts of the proposal and the alternatives in comparative form..."
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A reasonable range is "bounded by some notion of feasibility"; a "detailed statement of alternatives cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man."
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 551 (1978).
An agency need not consider alternatives that are infeasible, ineffective, or inconsistent with basic policy objectives, nor alternatives that are not significantly distinguishable from those actually considered or that have substantially similar consequences.
Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1180-81 (9th Cir. 1990).
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Alternatives: Third Party Proposals
• Emphasis is on what is "reasonable" rather than on whether the proponent likes or is itself capable of carrying out a particular alternative.
• Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.
CEQ Forty Most Asked Questions Concerning NEPA Regulations (#2a).
Alternatives Considered But Eliminated From Detailed Analysis
• CEQ regulations require brief discussion of the reasons for eliminating alternatives from detailed study.
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Alternatives
"The existence of a viable but unexamined alternative renders an environmental impact statement inadequate."
Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th Cir. 2005).
No Action
Agencies must consider a no action alternative.
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• Land use plan: "no action" = "no change" from the current management direction or level of management intensity.
• Two "no action" alternatives to account for uncertainty in status quo may not be possible
• Permit renewal; "no action" = allowing lease to expire. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006).
• Continued Action: "no action" for hydro dam relicensing = continued operation. Am. Rivers v....
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