Chapter 16 Top Ten Tips for Navigating the National Environmental Policy Act Review Process

• Jurisdiction: United States

Chapter 16 Top Ten Tips for Navigating the National Environmental Policy Act Review Process
Michael Drysdale Dorsey & Whitney Minneapolis, MN
Timothy Hagerty Frost Brown Todd Louisville, KY
Ann Navaro Bracewell LLP Washington, D.C.
Michelle-Ann Williams Hunton Andrews Kurth Washington, D.C.

MICHAEL R. DRYSDALE is Of Counsel at Dorsey & Whitney LLP in Minneapolis, where he has represented industry clients for over 25 years. Mike's practice includes broad-based environmental permitting, litigation, and compliance work, with significant focus on natural resource development, agriculture, and infrastructure projects. As relevant to NEPA, Mike has worked on NEPA analyses and litigation for coal, copper-nickel, flood control, and industrial projects involving the Bureau of Land Management, Office of Surface Mining, US Forest Service, Fish & Wildlife Service, Army Corps of Engineers, and FERC.

TIMOTHY J. HAGERTY has broad experience assisting both private and public clients in negotiating the requirements of the National Environmental Policy Act (NEPA) and related resource review and permitting requirements, including the Clean Water Act, the National Historic Preservation Act, and the Endangered Species Act. For over 28 years, Tim has provided legal counsel on a wide variety of infrastructure and development projects, including some of the largest projects in the Midwest. He served as lead environmental counsel for the Kentucky Transportation Cabinet on the $2.3 billion Louisville-Southern Indiana Ohio River Bridges Project (which completed construction in 2016) and served as legal counsel to the Illinois Department of Transportation on the proposed $1.1 billion Illiana Corridor Project in the Chicago metropolitan area. Tim previously advised major stakeholders participating in the NEPA reviews for the Woodrow Wilson Bridge Project in the D.C. area and the expansion of BART to the San Francisco airport. Tim has also worked with numerous private companies to satisfy the requirements of NEPA for private projects built on federal land or requiring federal approvals, including: a coal-fired power plant, multiple gas-fired electric generating units, and numerous electric transmission lines; a $300 million hotel and conference center complex located on Corps of Engineers land in Texas; several riverboat casinos on the Ohio and Mississippi Rivers; and a 5,600-acre master-planned community in Arizona (receiving water through the Bureau of Reclamation's Central Arizona Project). Tim also assisted a local governmental authority in South Central Kentucky in successfully obtaining environmental approvals for a multimodal industrial park, which included initial environmental studies and coordination with the FAA in anticipation of future construction of an airport at the site. Tim has also assisted clients in obtaining wetland permits and related approvals under the Clean Water Act for major infrastructure, commercial, residential, and industrial developments across the country. Tim is a 1994 graduate of Yale Law School. He currently practices at Frost Brown Todd LLP in Louisville, Kentucky, and previously practiced at Beveridge & Diamond, P.C., in Washington, D.C.

MICHELLE-ANN WILLIAMS is a Senior Attorney at Hunton Andrews Kurth within the Administrative Law Practice Group. Michelle-Ann advises clients, including state agencies, electric utilities, and other energy companies, on environmental permitting and siting matters, regulatory compliance, and litigation under the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Clean Water Act (CWA), and other federal environmental statutes and regulations. She provides counsel on litigation risk and changing precedents, and devises litigation strategies to include consideration of novel issues, such as environmental justice. Prior to joining private practice, Michelle-Ann served as a Trial Attorney in the US Department of Justice, defending challenges to the Department of the Interior's oil, gas, and coal programs. Michelle-Ann provided compliance and litigation guidance to agencies including the Bureau of Land Management, Office of Surface Management, Reclamation and Enforcement, and the Office of Natural Resources and Revenue, on statutes including NEPA, Surface Mining Control and Reclamation Act (SMCRA), Federal Land Policy Management Act (FLPMA), Federal Oil and Gas Royalty Management Act (FOGRMA), the Mineral Leasing Act (MLA), and the General Mining Law of 1872. Michelle-Ann previously clerked at EPA's Office of Enforcement and Compliance Assurance in the Waste and Chemicals Enforcement Division, where she provided guidance on matters involving the Resource Conservation and Recovery Act. Michelle-Ann also has experience working at the international level. Through her work as a Legal Specialist in the Organization of American States, she worked with Latin American and Caribbean countries on environmental law and policy issues, including energy, disaster risk management, climate change, and the implementation of multilateral environmental agreements.

The National Environmental Policy Act (NEPA) - a law that has been referred to as the "Magna Carta" of the nation's environmental laws - turned 53 years old on January 1, 2023. Those 53 years have provided a superabundance of NEPA activity and NEPA resources:

• The promulgation of and revisions to implementing regulations by the Council on Environmental Quality (CEQ) and federal agencies,
• issuance of countless guidance documents by nearly all federal agencies,
• numerous efforts to streamline, modernize, reform, or otherwise make the NEPA process more efficient and effective,
• tens of thousands of pages of government and private sector analysis on NEPA, its implementation, and its implications,
• thousands of hours of conference and instruction time,
• development of an industry focused on writing NEPA documents, and
• a library of judicial decisions interpreting the Act and the federal government's compliance with its requirements.¹

Notably, NEPA is a procedural statute and does not tell the decision-maker what course of action to take.² That is why the Court's role is limited to insuring only that the agency has adequately considered and disclosed the environmental consequences of its actions.³ Id. Also, because NEPA does not provide a private right of action, courts determine NEPA compliance under the Administrative Procedure Act.⁴

While the process can be complex and sometimes goes in unpredictable directions, certain practical approaches encourage an effective agency review with the goal of a durable decision

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and completed project. This paper reflects the authors' collective experience and presents what they consider to be some of the key practice points for successfully navigating NEPA.

1. Understand the purpose and role of NEPA.

NEPA compliance is a federal responsibility triggered by a proposed federal action to be taken under an agency's substantive statute - like a proposal by the U.S. Department of the Interior (DOI) to issue onshore oil and gas leases under the Mineral Leasing Act, or a proposal to DOI by the private lessee that permits to drill be approved for wells on those same leases. Thus, NEPA applies to many, even almost all, actions that a nonfederal actor may seek from the federal government - from permits to rights-of-way to loans and grants.⁵ Therefore, the efficient and compliant conduct of the NEPA process is critical for a successful project. In a worst-case scenario, a project may find itself without critical federal permissions or money if a court finds the federal agency failed to comply with NEPA and, as a result, stays or vacates the needed agency decision. Short of that worst case scenario, miscommunications and misunderstandings can result in significant project delays or a denial of the proposed action. A practitioner who understands NEPA's requirements and their purposes, including agency-specific approaches and relevant case law, will better support both the client and the government agency in obtaining to a durable outcome.

The purpose of NEPA is to inform both the decision-maker and the public and foster excellent decision-making to carry out a national policy to "create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."⁶ The statute's fundamental goal could not be broader - triggered by increasing concern over environmental impacts and controversy over large projects planned without regard to the environmental consequences, Congress intended for the statute to improve government decision-making by changing the culture of the federal government to integrate environmental values into federal actions. In the most recent NEPA rulemaking, the Council on Environmental Quality (CEQ), stated that "NEPA requires federal agencies to interpret and administer federal policies, regulations, and laws in accordance with NEPA's policies and to give appropriate consideration to environmental values in their decision making."⁷ Providing opportunities for public participation is central to this concept.⁸

That NEPA imposes procedural requirements to achieve its goals, but does not mandate agencies to make particular decisions, is a maxim repeated time and again.⁹ Agencies comply

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with NEPA and the regulations by (i) developing Environmental Impact Statements (EIS) for major federal actions significantly affecting the quality of the environment, (ii) preparing an Environmental Assessment (EA) to determine whether an EIS is required or to document the agency's determination that an EIS is not required, or (iii) identifying an applicable categorical exclusion for actions that do not individually or cumulatively have a significant effect on the environment. Mitigation must be considered separately or as part of the proposed action, where relevant...