CHAPTER 14 A SURVEY OF STATE ENVIRONMENTAL POLICY ACTS
| Jurisdiction | United States |
(Oct 2010)
A SURVEY OF STATE ENVIRONMENTAL POLICY ACTS
Sonnenschein Nath & Rosenthal LLP
San Francisco, California
MATTHEW ADAMS is an environmental lawyer practicing in the San Francisco office of Sonnenschein Nath & Rosenthal LLP. He received B.A. from Northwestern University in Political Science and Urban Studies, then attended graduate school at the University of California, Berkeley, where he received an M.A. in Political Science, an M.C.P. in City and Regional Planning, and a J.D. Mr. Adams' practice focuses on counseling and litigation involving the National Environmental Policy Act, the California Environmental Quality Act, and other state and federal environmental impact assessment statutes. He has particular expertise with infrastructure and economic development projects on tribal lands.
Matthew G. Adams
SNR Denton
525 Market Street, 25th Floor
San Francisco, CA 94105
(415) 882-0351
matthew.adams@snrdenton.com
Introduction
The National Environmental Policy Act (NEPA)1 is best known for requiring federal agencies to identify, evaluate, and disclose the environmental effects of their proposed actions.2 But NEPA's impact is not limited to the federal context. It has also served (and, in some cases, continues to serve) as a model for a number of state environmental impact assessment statutes.
All in all, 15 states have adopted some form of environmental impact assessment statute modeled on NEPA.3 Like NEPA, the fundamental purpose of these "State Environmental Policy Acts" (SEPAs) or "Mini-NEPAs" is to force public agencies to integrate environmental considerations into their decision-making processes.4 However, many SEPAs differ from NEPA -- and from each other -- in important ways.
A detailed, encyclopedic description of each of the 15 SEPAs (let alone their respective implementing regulations, legislative histories, and bodies of case law) is beyond the scope of this -- or, indeed, any -- single conference paper.5 By surveying the different ways in which
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SEPAs have addressed certain issues basic to all environmental impact assessment statutes, however, it is possible to understand the most important ways in which the state acts differ from NEPA and from each other.
With that goal in mind, this paper surveys the ways in which SEPAs address (1) the types of government action subject to environmental review, (2) the significance of environmental impacts, (3) alternatives to proposed actions, (4) mitigation, (5) the extent to which environmental impact assessment requirements also impose substantive limits on environmental impacts, (6) public participation in environmental impact assessment, (7) methods of streamlining the environmental review process, and (8) judicial review.
Analysis
A. Applicability
NEPA requires some form of environmental impact assessment for the vast majority of proposed federal actions,6 including rules and plans to be implemented by federal agencies,7 private projects requiring permits from those agencies,8 and agency "proposals for legislation."9
Some states have taken a similarly inclusive approach. For example, the California SEPA applies to virtually all discretionary actions by state and local agencies, including (1) any activity undertaken directly by an agency, (2) any activity supported by a grant or loan from an agency, and (3) any activity involving a permit or lease approved by an agency.10 The Washington11 and New York12 SEPAs also apply quite broadly.13
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In other states, SEPAs apply to a more limited range of government actions. Some SEPAs are limited by virtue of statutory conflicts with other significant state laws.14 Others apply to decisions by state agencies, but not to decisions made by local officials.15 Still others limit environmental review to projects impacting specific types of resources.16 And a few SEPAs allow administrative agencies to determine which actions are subject to environmental review and which are not.17
It is also worth noting that there is some variation among SEPAs regarding proposals for legislation. Unlike NEPA, most SEPAs are silent on the question of whether such proposals should be subject to environmental review.18 And, for the most part, that silence has been interpreted as precluding environmental review.19 But a few SEPAs contain provisions authorizing assessment of the environmental impacts of legislative funding decisions.20 And in California, where important land-use decisions are often made on the basis of voter initiatives and referenda, the SEPA provides that (1) actions of the State Legislature are not subject to environmental review,21 but (2) the decision to submit a legislative proposal to the electorate may, under certain circumstances, require an environmental impact assessment.22
B. Significance Thresholds
Under NEPA, one of the most basic questions to be answered is whether a proposed action will have a "significant" impact on the environment.23 If so, the agency must prepare a comprehensive Environmental Impact Statement ("EIS").24 If not, the agency may proceed on
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the basis of a more limited environmental review.25 NEPA itself does not define "significant."26 But CEQ's NEPA regulations provide a certain amount of guidance.27 Among other things, the regulations provide that the significance of an environmental impact should be evaluated on the basis of both the "context" and the "intensity" (or severity) of the impact, and specifically identify ten different considerations relevant to the latter inquiry.28 The CEQ regulations do not provide any bright-line numerical thresholds for evaluating significance.29
Identifying significant environmental impacts is critically important under SEPAs as well.30 But some state acts differ from NEPA in their approach to this inquiry. For example, the New York SEPA applies a system of "presumptions" designed to simplify and regularize decisions about whether a full environmental impact assessment must be prepared.31 Under this system, proposed actions identified as "Type I" carry a presumption that a full assessment is required; other proposed actions do not. Some -- but not all -- of the criteria for defining "Type I" actions are based on quantitative information.32
Other SEPAs provide interpretive materials designed to facilitate an in-depth, project-by-project significance determination for each one of a proposed project's potential impacts. For example, the regulations implementing the California SEPA contain a detailed, 87-part "Environmental Checklist" designed to help public agencies determine whether a proposed action will significantly affect the environment.33 Although none of the Checklist criteria sets a quantitative threshold of significance, several refer to quantitative pollution limits identified in other statutory schemes.34
Some SEPAs also provide a lower threshold for the preparation of a full environmental analysis than does NEPA. Once again, California provides a good example. Whereas NEPA requires an EIS for actions that will significantly affect the environment, the California SEPA
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mandates a full environmental analysis wherever there is "substantial evidence supporting a fair argument that the project may have a significant effect on the environment."35 The New York SEPA also establishes a relatively low threshold for preparing a full environmental analysis.36 It is also worth noting that some state courts have suggested such a threshold might be justified even in the absence of explicit statutory language.37
C. Alternatives Analysis
NEPA mandates that agencies consider a "range" of reasonable alternatives to proposed federal actions.38 CEQ's NEPA regulations require that agencies "[r]igorously explore . . . all reasonable alternatives," including those "not within the jurisdiction of the lead agency."39 As a practical matter, however, most federal agencies (and, perhaps more importantly, most federal courts) recognize that the scope of an alternatives analysis is somewhat circumscribed by the purpose of the agency's proposed action.40
In general, SEPAs are fairly similar to NEPA with respect to the nature and scope of an alternatives analysis. Although some SEPAs contain more detail than others, virtually all of them (1) require agencies to consider a range of alternatives to a proposed action41 and (2) define that range according to some combination of the purpose for the proposed project and the rule of reason.42 To the extent that SEPAs differ from NEPA, it is usually by more explicitly addressing the situations in which alternative sites (or off-site alternatives) must be considered.43
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D. Mitigation
Like alternatives, mitigation measures provide agencies with a way to limit environmental impacts.44 Mitigation can become an issue in several different NEPA contexts. First, EISs must contain a "reasonably thorough" discussion of mitigation -- essentially, the discussion of mitigation must contain "sufficient detail to ensure that environmental consequences have been fairly evaluated."45 NEPA does not require federal agencies to actually adopt or enforce the mitigation measures discussed in an EIS, however.46 Second, federal agencies may rely on mitigation measures to reduce the impacts of a proposed action to a less-than-significant level, thereby allowing the action to proceed on the basis of a Finding of No Significant Impact ("FONSI") (and eliminating the need for a full EIS).47 Third, federal agencies may impose mitigation measures in order to comply with permitting requirements imposed by other environmental statutes.48
Although mitigation arises in a variety of NEPA contexts, neither the statute nor CEQ's implementing regulations contains much in the way of meaningful mitigation requirements. Most importantly, neither explicitly mandates that the mitigation measures...
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