CHAPTER 17 THE NEPA PROCESS: WHAT DO WE NEED TO DO AND WHEN?
| Jurisdiction | United States |
(Apr 2012)
THE NEPA PROCESS: WHAT DO WE NEED TO DO AND WHEN?
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico
JOAN DRAKE is an attorney with Modrall Sperling in Albuquerque. Prior to her legal career, Joan was a regulatory and environmental specialist for fourteen years with the US Army Corps of Engineers in the Los Angeles District and New England Division. Joan now advises clients on NEPA and Clean Water Act compliance and related federal permitting matters. Joan also advises clients on public utility and transmission issues.
By
Joan E. Drake
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
P.O. Box 2168
Albuquerque, NM 87103-2168
(505) 848-1850
jdrake@modrall.com
This paper was originally presented at the Rocky Mountain Mineral Law Foundation Special Institute entitled "NEPA and Federal Land Development" and appeared in the Institute Manual as Paper 3 (Rocky Mt Min L Fdn 2006). The article was subsequently published in the Rocky Mountain Mineral Law Foundation Journal, 43 Rocky Mt Min L Fdn J 117 (2006).
This paper reviews the basic nuts and bolts of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"). The paper describes the types of proposed actions that trigger NEPA, various NEPA documents and the process and timing of procedures to ensure compliance. Where possible, citations to U.S. Supreme Court and Tenth Circuit case law, applicable in the Rocky Mountain region, are included to round out statutory and regulatory requirements.
I. The NEPA Trigger: "Major Federal Action Significantly Affecting the Human Environment"
NEPA requires the inclusion of a detailed statement "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment."1 The statute does not further define the terms "proposal" or "major Federal action significantly affecting the quality of the human environment," or what the "detailed statement" is to consist of, but the Council on Environmental Quality's ("CEQ") regulations, and the specific agency regulations, have attempted to fill in the gaps.
A. What is a "Proposal" that Triggers NEPA?
What constitutes a proposal that triggers the provisions of NEPA is often a question of timing. Agencies may consider many proposals and projects in various stages of formulation and planning. While Federal agencies are encouraged to apply NEPA early in the project planning process, it is practical to initiate the formal NEPA process only at a stage where a proposal is developed to a point where it can be meaningfully evaluated. The CEQ regulations define a "proposal" subject to the provisions of NEPA to exist at the point where an agency has a goal and is actively preparing to make a decision
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on one or more alternative means of accomplishing the goal and the effects of those alternatives and implementing the goal can be meaningfully evaluated.2
B. What is a "Major Federal Action?"
The CEQ regulations define "major Federal action" to include actions with effects that may be major and which are potentially subject to Federal control and responsibility."3 A major Federal action can include failure by officials to act. Actions can include new and continuing activities, including those entirely or partly funded, assisted, conducted, regulated or approved by an agency, and new or revised agency rules, regulations, plans, policies or procedures, as well as legislative proposals.4 Initiation of judicial or administrative enforcement actions does not trigger NEPA. Further, the Federal agency must have some discretion with respect to the action proposed. Nondiscretionary actions do not trigger NEPA.
1. What is a "Federal" Action?
A "Federal" action is an action taken (or not taken) by a Federal agency or arm of the Federal government. The CEQ describes Federal actions as tending to fall into one of four categories:5
1. Adoption of official policy, rules and regulations, and international agreements.
2. Adoption of formal plans upon which future agency actions will be based.
3. Adoption of programs to implement policies, or allocation of agency resources to implement programs or directives.
4. Approval of specific projects, such as construction and management activities located in a defined geographic area, including projects approved by permit or other regulatory decision as well as federal activities and federally assisted activities.
Non-federal projects become "Federal actions" when the project "cannot begin or continue without prior approval of a Federal agency."6 The key determinant is the Federal government's ability to "exercise discretion over the outcome."7
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2. "Small Handles" Issues
"Small handles" issues arise under NEPA when an agency has statutory authority to approve only a small part of a larger project. The issue then focuses on the proper scope of the NEPA document -- should it include only the part of the project over which the agency has approval authority or should it cover the entire project?
The Tenth Circuit concluded the key factor in this analysis is the Federal agency's authority to influence the non-federal activity.8 In Hodel, BLM limited its impact assessment of a right-of-way improvement project to those areas within the right-of-way, and did not address impacts to a nearly wilderness study area.9 The court held that the agency should have addressed impacts to the wilderness study area because of its control of the area under the Federal Land Policy and Management Act.10 In order to include the private action within the scope of the federal action, the federal agency must possess actual power to control the non-federal activity. This includes control over the outcome of the private project.11
Hodel follows the "control and responsibility" line of reasoning established by the Eighth and Fifth Circuits in two 1980 cases.12 In Winnebago Tribe, the Eighth Circuit concluded the Corps did not have either legal control or "but for" control over an entire transmission line because it only permitted a river crossing. The court set out three factors to assess whether "but for" control exists: (1) the degree of discretion over the non-federal project; (2) whether there is federal funding of the private project; and (3) the overall extent of federal involvement in the private project.13 The court found that none of these factors applied in the case, where the agency's approval authority covered a relatively small portion of the overall project, and there was no federal funding.14 NEPA does not enlarge the authority of an agency and the agency's statutorily circumscribed discretion did not dictate project-wide review.15 The agency only had the authority to permit the river crossing and this degree of involvement was insufficient to turn the private project into a federal action.16
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3. What is a "Major" Action?
The CEQ regulations state that the term "major" reinforces, but does not have a meaning independent of, the definition of "significantly," discussed in Section I.D below.17 Courts have considered whether there is a dual standard or a unitary standard for these two terms.18 While courts have taken different approaches, the CEQ regulations merged the two terms; thus, the primary factors in the consideration of whether an action is "major" are similar to those for determination of whether the action is likely to have significant effects on the human environment: the size of the project contemplated, and the intensity and context of the potential impacts.19
C. What is the "Human Environment?"
The "human environment," impacts to which trigger the NEPA process, is a broad term that is "interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment."20 While economic or social effects will not, by themselves, trigger NEPA, they must be considered once NEPA is triggered by impacts to the natural or physical environment and the relationship of people with that environment.21
Included within the ambit of the "human environment" are physical, cultural and aesthetic values.22 Agencies have provided guidance to their offices regarding what impacts and resources should be considered in NEPA analyses. For example, the Bureau of Land Management specifies in its NEPA Handbook the following critical elements to be considered: air quality, areas of critical environmental concern, cultural resources, farmlands, floodplains, Native American religious concerns, threatened and endangered species, hazardous and solid wastes, water quality, wetlands and riparian zones, wild and scenic rivers, and wilderness.23
D. What does "Significantly Affecting" Mean?
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"Significantly" requires consideration of both context and intensity. With respect to context, the significance of an action must be analyzed in several contexts such as society as a whole, the affected region, the affected interests, and the locality.24 Intensity refers to the severity of the impact.25 Both short-term and long-term impacts must be considered.
Factors to be considered in assessing the intensity of effects include:26
1. Beneficial as well as adverse impacts.
2. Degree of effect on public health and 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 effects are likely to be highly controversial.
5. The degree to which possible effects are highly uncertain or involve unique or unknown risks.
...6. The degree to which the action may establish precedent for future actions with significant effects or
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