CHAPTER 2 ANATOMY OF AN ENVIRONMENTAL IMPACT STATEMENT--WHAT GOES INTO A NEPA DOCUMENT?

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 2
ANATOMY OF AN ENVIRONMENTAL IMPACT STATEMENT--WHAT GOES INTO A NEPA DOCUMENT?
Brad Grenham ¹
Attorney
U.S. Department of the Interior, Office of the Solicitor
Portland, OR

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BRAD GRENHAM is an assistant regional solicitor with the Pacific Northwest Region of the Solicitor's Office, United States Department of the Interior. He supervises regional Bureau of Land Management natural resource matters. Brad works on land use planning, grazing, recreation, mining, energy, wilderness management, National Environmental Policy Act, Wild & Scenic Rivers Act, and natural resource damages. Brad also assists the Bureau of Indian Affairs with asserting tribal reserved water rights in the Northern Idaho Adjudication. In 1995, Brad received his J.D. from Lewis & Clark Law School, where he currently teaches a natural resource seminar. Brad also enjoys coaching high school students in the We the People constitutional law debate competition. Brad received his B. A. from Dartmouth College and grew up in Massachusetts.

Are you ready to write, review, or otherwise work with an environmental impact statement (EIS) prepared under the National Environmental Policy Act (NEPA)?² While it may appear daunting, the task is more manageable with an understanding of the purpose of NEPA, the key components of an EIS, and the guidelines for designing each component. An agency prepares an EIS to consider alternatives and environmental impacts in proposing major federal actions significantly affecting the environment. The challenge lies in the many judgment calls involved in designing each EIS component. We know the EIS needs alternatives, but how many alternatives? The EIS must consider cumulative effects, but how far must this analysis extend? The Environmental Assessment (EA), although more concise, requires similar analysis and judgment calls.³ This paper seeks to assist with the basics by describing the components of an EIS and providing some key regulatory and case law guidance on each component.

I. THE PURPOSE OF AN EIS

A. Informed Decisionmaking

In developing each component of the EIS, the guiding principle is that the purpose of the document is "to insure a fully informed and well-considered decision."⁴ "NEPA's purpose is not to generate paperwork . . . but to foster excellent action" and "help public officials make decisions that are based on understanding of environmental consequences."⁵

The EIS "ensures that the agency . . . will have available, and will carefully consider, detailed information concerning significant environmental impacts" and "it guarantees that the relevant information will be made available to the larger audience."⁶ NEPA procedures "insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken."⁷ Publication of an EIS "serves a larger informational role," as it "provides a springboard for public comment."⁸ The "touchstone" is whether an EIS analysis "fosters informed decision-making and informed public participation."⁹

NEPA's "mandate to the agencies is essentially procedural."¹⁰ A "rule of reason" governs EIS contents based on the usefulness of potential information to the decision-making process.¹¹

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B. Informed Decisionmaking Should Avoid Needless Paperwork or Delay

NEPA documents should "concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail."¹² NEPA procedures should "reduce paperwork and the accumulation of extraneous background data" and "emphasize real environmental issues and alternatives."¹³ "Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses."¹⁴ Agencies can reduce "excessive paperwork" by, among other things, setting appropriate page limits; "discussing only briefly issues other than significant ones"; using the scoping process "not only to identify significant environmental issues deserving of study, but also to deemphasize insignificant issues"; tiering to other EISs; incorporating by reference; "requiring comments to be as specific as possible"; and using categorical exclusions and environmental assessments.¹⁵ "Impacts shall be discussed in proportion to their significance. There shall be only brief discussion of other than significant issues."¹⁶ Regulations contemplate that the text of a final EIS "shall normally be less than 150 pages and for proposals of unusual scope or complexity shall normally be less than 300 pages."¹⁷

Agencies can reduce delay by, among other things, integrating NEPA into early planning; emphasizing interagency cooperation before an EIS is prepared; using scoping "for an early identification of what are and what are not the real issues"; establishing time limits; and using categorical exclusions and environmental assessments.¹⁸

However, courts still expect sufficient documentation that the agency complied with the relevant NEPA procedure, such as a categorical exclusion or finding of no significant impact.¹⁹ Further, as illustrated in the discussion of alternatives, effects, and mitigation below, courts have found EISs and EAs to be insufficient where lacking a reasonable range of alternatives or sufficient details on environmental effects or mitigation.

C. NEPA Focuses on Informing Federal Agency Decisionmaking

"Major federal action" triggering NEPA requirements includes "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"; and "approval of specific projects."²⁰

How much federal involvement is enough to constitute a major federal action? Since NEPA's purpose is to inform federal agency decision-making, courts look to the degree of federal agency discretion or control over the action. If there is no federal agency discretion to inform, then there is typically no need for NEPA analysis. Major federal action includes "actions with effects that may be major and which are potentially subject to Federal control and responsibility."²¹ "There are no clear standards for defining the point at which federal participation transforms a state or local project into a major federal action . . . . The matter is simply one of degree."²² "Marginal federal action will not render otherwise local action federal" and courts "look to the nature of the federal funds used and the extent of federal involvement."²³ "This determination admits of no simple litmus test."²⁴ Federal decisionmakers must retain "power, authority, or control over" the project, rather than just providing nonbinding advice.²⁵ If a project is only partially funded by the federal agency, courts have looked to the proportion of federal funding to non-

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federal funding. If the amount of federal funding is insignificant or only covers a small segment of the project, the involvement of the federal agency typically will not constitute major federal action.²⁶

"Federal Action" Examples

• Federal funding of an EIS and study for a bridge project did not federalize action where there was "no evidence that the federal government had the actual power to control" the project and the agency's role was to give advice. ²⁷

• Federal agency review of highway interchanges as part of a state highway project was a federal action, but the federal agency did not have jurisdiction to oversee the construction of the highway corridor between the interchanges and thus the corridor was not part of the federal action. ²⁸

• Federal control and responsibility was limited to permitting about 15 miles of an oil pipeline, thus "these minor pieces of federal involvement in a nearly 600-mile pipeline" did not constitute federal control and responsibility over the pipeline as a whole. ²⁹

• Wetland construction-permitting cases present several examples. For instance, the Army Corps of Engineers needed to consider, in its NEPA analysis, an entire property because "sixty-six permit sites are scattered throughout the entire property" and "the jurisdictional waters run throughout the property like capillaries through tissue." ³⁰ Accordingly, "any development the Corps permits would have an effect on the whole property" ³¹ By contrast, where "the jurisdictional waters are concentrated in certain areas, making it easy to build around them, so that substantial development can go forward" without federal permitting, the "Corps' analysis may be limited to the effect on the waters." ³²

• Funding cases focus on proportion of federal funding and role of the federal agency. For example, federal contributions of 1.6% to 10% of a project have been insufficient to federalize the project. ³³ Federal contribution of $531 million toward a subatomic particle accelerator project in Europe did not constitute a major federal action because the funding represented less than 10% of the $5.84 billion project cost. ³⁴ In another instance, the project was not federalized because the federal contribution of $1.3 million was less than two percent of the estimated total project cost of $80 million and the agency played an advisory but not decision-making role. ³⁵ By contrast, where there was an "overwhelming percentage [75%] of federal dollars involved," the federal funding contribution was sufficient to federalize the project. ³⁶

II. THE COMPONENTS OF AN EIS

A. Statutory Requirements

NEPA requires that federal agencies:

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include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

(i) the environmental impact of

...