CHAPTER 11 MITIGATION & NEPA: HOW DOES A PROCEDURAL REQUIREMENT IMPACT AGENCY DECISIONS?

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 11
MITIGATION & NEPA: HOW DOES A PROCEDURAL REQUIREMENT IMPACT AGENCY DECISIONS?
Kathleen C. Schroder
Timothy R. Canon II
Davis Graham & Stubbs LLP
Denver, Colorado

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Katie Schroder is a partner at Davis Graham & Stubbs LLP in Denver where her practice focuses on all aspects of energy development on federal lands. Ms. Schroder counsels clients on oil and gas leasing and development on federal lands and agency compliance with the National Environmental Policy Act and the National Historic Preservation Act. She has extensive experience with the Endangered Species Act, including the process for listing species as threatened or endangered, the process for obtaining permits under section 10 of the Act, and the development of conservation agreements for candidate species. Ms. Schroder is active with the Rocky Mountain Mineral Law Foundation, serving as a trustee to this organization and authoring several papers. She sits on the board of directors of Western Energy Alliance and is a former chair of the Public Land and Resources Committee within the ABA's Section of Environment, Energy, and Resources. Ms. Schroder began her career as an attorney-advisor in the U.S. Department of the Interior's Office of the Solicitor as part of the Solicitor's Honors Program, where she advised the multiple bureaus within Interior. She then spent 10 years with a boutique law firm in Denver. She holds a B. A. from Rice University and a J.D. from the University of Colorado School of Law. Following law school, she clerked for Justice Alex J. Martinez of the Colorado Supreme Court.

TIM CANON is an associate in the Natural Resources Department of Davis Graham & Stubbs LLP where he works with clients in the areas of oil and gas, public lands, and natural resources law. Mr. Canon's practice includes advising clients on all aspects of federal oil and gas leasing and development, including land use planning, leasing, unitization and communitization, and day-to-day operational issues. He has assisted clients with participation in the processes for development, review, and challenge of federal decisions at the land use planning and project levels and has experience assisting clients with the preparation and review of associated National Environmental Policy Act analyses. Mr. Canon's practice also includes conducting oil and gas title examinations and preparation of title opinions, as well as operational issues affecting oil and gas operations on state and private lands throughout the west. Mr. Canon is an active member of the Rocky Mountain Mineral Law Foundation, and has co-authored and presented several papers at the Foundation's special and annual institutes.

I. Introduction

The National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations implementing NEPA require agencies to consider mitigation when preparing environmental impact statements (EIS). The United States Supreme Court has made clear that this requirement, like NEPA's other requirements, is procedural and not substantive. But just as NEPA substantively influences agency decisionmaking notwithstanding its procedural mandates, the procedural obligation to consider mitigation necessarily affects the mitigation that agencies adopt in their decisions. The degree to which the obligation to consider mitigation influences agency decisions, however, is difficult to discern because mitigation is often incorporated into agencies' proposed actions and alternatives thereto, which are, at least on their face, developed and analyzed under separate regulatory requirements and standards.

This paper outlines the role of mitigation in agency decisionmaking and distinguishes the role of mitigation in EISs and environmental assessments (EAs). It describes agencies' obligations to consider mitigation when preparing EISs, including the elements of such mitigation and the detail agencies must provide. This paper also describes how agencies can streamline their decisionmaking by relying on mitigation to reach findings of no significant impact (FONSIs). Furthermore, the paper details agencies' obligation to monitor the effectiveness of mitigation and address ineffective mitigation. Finally, the paper assesses the effect of agencies' obligation to consider mitigation on NEPA decisions. The degree to which the obligation to consider mitigation affects the mitigation agencies actually adopt is difficult to assess, in part because arguably the requirement that agencies consider mitigation distorts project applicants' incentives when proposing projects. Additionally, recent policies from federal agencies reinforce the role of the public and cooperative agencies in championing mitigation measures.

II. What is Mitigation?

NEPA itself does not expressly refer to mitigation, although the statute implicitly captures this concept. NEPA requires that "an agency prepare a detailed statement on 'any adverse environmental effects which cannot be avoided should the proposal be implemented.'"¹ This statement, particularly the emphasized language, reflects "an understanding that the EIS will discuss the extent to which adverse effects can be avoided."²

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While NEPA only implicitly addresses mitigation, the CEQ regulations implementing NEPA both define "mitigation" and expressly direct agencies to consider mitigation in EISs.³ The CEQ regulations direct that EISs analyze mitigation measures as part of alternatives to a proposed action⁴ and also include "appropriate mitigation measures not already included in the proposed action or alternatives."⁵ "Mitigation" in EISs can take one or more of five forms:

? Avoidance of impacts "by not taking a certain action or parts of an action." ⁶ Avoidance generally consists of relocating parts of a project away from sensitive resources or refraining from implementing some or all of a project entirely. For example, if a proposed oil and gas project includes wells located within the habitat of a sensitive species, impacts to the species will be avoided by modifying the action to relocate these wells so they are outside of the species' habitat. Avoidance can also include seasonal and timing limitations that avoid impacts to resources that only exist during certain seasons or at certain times.

? Minimization of impacts "by limiting the degree or magnitude of the action and its implementation." ⁷ Mitigation can consist of project modifications to reduce impacts, such as aesthetic modifications to a project, technological changes, and noise controls. For example, an oil and gas project may be modified to use certain engines in drilling rigs to lower emissions of air pollutants. Similarly, structures may be painted in colors that blend in with surrounding landscapes to minimize visual impacts.

? Rectification of impacts "by repairing, rehabilitating, or restoring the affected environment." ⁸ For example, surface areas disturbed during construction of a project may be reclaimed and revegetated after construction activities are complete or the disturbance is no longer needed. ⁹

? Reduction or elimination of impacts "over time by preservation and maintenance operations during the life of the action." ¹⁰ For example, invasive plant species can be continually removed and managed while surface disturbance exists. ¹¹

? Compensation for impacts "by replacing or providing substitute resources or environments." ¹² For example, a project proponent can offset surface disturbance in sensitive species habitat by securing conservation easements within other habitat.

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Often, these components are collectively referred to as the "mitigation hierarchy."¹³ Although other agencies have adopted the mitigation hierarchy in their policies,¹⁴ the CEQ regulations were the first authority to outline and adopt the mitigation hierarchy.¹⁵

III. Mitigation in Environmental Impact Statements

Although NEPA lacks an express reference to mitigation, the CEQ regulations and case law make clear the requirement to discuss mitigation is essential to the preparation of EISs. Unlike EAs and FONSIs, in which no discussion of mitigation is required,¹⁶ the CEQ regulations direct that agencies incorporate mitigation throughout EISs and Records of Decision (RODs).

The CEQ regulations contain at least four separate directives that agencies consider and discuss mitigation measures in an EIS. The alternatives in an EIS must include mitigation measures not identified in the proposed action.¹⁷ Agencies must also consider mitigation measures not otherwise included in the proposed action or alternatives.¹⁸ Additionally, the description of environmental consequences in an EIS must discuss "[m]eans to mitigate adverse environmental impacts" if not included in the discussion of alternatives.¹⁹ Finally, a ROD must address "whether all practicable means to avoid or minimize environmental harm . . . have been adopted."²⁰ These directives reflect the importance of the requirement to discuss mitigation to the NEPA process as interpreted by the CEQ.

The United States Supreme Court has also stressed the importance of the mitigation discussion to NEPA. In Robertson v. Methow Valley Citizens Council,²¹ the Supreme Court reasoned that a discussion of how adverse effects can be mitigated is essential to informed decisionmaking under NEPA, stating that "[a]n adverse effect that can be fully remedied by, for example, an inconsequential public expenditure is certainly not as serious as a similar effect that can only be modestly ameliorated through the commitment of vast public and private resources."²² Although the Court found the requirement to discuss mitigation is essential to the NEPA process, the Court clarified that this obligation was procedural and not substantive, consistent with NEPA's "hard look" mandate.²³ The Court expressly rejected a lower court holding that NEPA obligated agencies...