Chapter 2 Federal Public Land Agency NEPA Authorities: The Current State of Affairs

• Jurisdiction: United States

Chapter 2 Federal Public Land Agency NEPA Authorities: The Current State of Affairs
Temple Stoellinger¹ University of Wyoming College of Law Laramie, WY

TEMPLE STOELLINGER is an assistant professor and Wyoming Excellence Chair at the University of Wyoming with a dual appointment in the Haub School of Environment and Natural Resources and the College of Law. Professor Stoellinger coordinates the Haub School's JD/MA program in Environment and Natural Resources and teaches environmental and natural resources law and policy, wildlife law, and approaches to environmental problem solving. Her scholarship integrates thinking from the fields of law, energy, economics, policy, and more to explore relevant approaches for decision-making around land, energy, and other valued natural resources. Before joining the University of Wyoming, Professor Stoellinger served as a natural resource advisor to Wyoming Governor Dave Freudenthal, worked as legal counsel for Shell International B.V., and served as natural resource counsel for the Wyoming County Commissioners Association.

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Perhaps no other federal statute has had a greater reach across our federal public lands than the National Environmental Policy Act (NEPA). Signed by President Nixon on January 1, 1970, NEPA requires all federal agencies to take a hard look when analyzing a proposed federal action that may significantly affect the quality of the human environment.² The intent of requiring agencies to take a hard look is to foster better decisions through environmental accountability.³ As Brigham Daniels et al. recently noted, through NEPA's "requirements of transparency and public involvement, it has provided citizens and public interest groups an "unprecedented foothold in administrative decision-making."⁴

The unprecedented foothold into administrative decision-making that NEPA has provided has been particularly impactful in the federal public lands context, where strong public opinions about how public lands should be managed abound. The NEPA process allows those viewpoints to be expressed through public involvement, and ultimately in the courtroom.

Part of the debate about federal public land management includes NEPA's role in agency decision-making. Some want to see federal public land agencies engage in more robust NEPA reviews, including detailed analysis of projected climate change impacts. Others want federal agencies to streamline and expedite NEPA reviews to reduce permitting and project delays. NEPA and federal land public decision-making are currently caught in the middle of these opposing viewpoints, oscillating between the agendas of different presidential administrations. During the Trump administration, NEPA regulations were revised to streamline and expedite reviews, but now, during the Biden administrations there are attempts to reverse those changes and expand NEPA analysis to focus on climate change and environmental justice.

During this period of oscillation, this paper seeks to provide insight into the evolving NEPA process that federal public land agencies must comply with. Several Foundation papers have already provided big picture overviews of NEPA, detailing the statute, regulatory requirements, and associated case law.⁵ Instead of duplicating those efforts, this paper focuses on federal public land agency NEPA regulations and guidance documents. Section 1 of this paper provides an overview of the NEPA itself, intended to orient the reader to the major requirements of the statute. Section II details the Council of Environmental Quality (CEQ) NEPA regulations,

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discussing the promulgation of the original NEPA regulations in 1978, the major revisions contained within the Trump Administration's 2020 regulations, and the Biden administrations current regulatory revision effort. Section III focuses on the NEPA authorities of the federal public land management agencies: the Bureau of Land Management (BLM), the U.S. Forest Service (Forest Service), the National Park Service (NPS) and the U.S. Fish and Wildlife Service (FWS).⁶ The paper concludes with some final thoughts on the era of NEPA that might be coming next, particularly as federal land management agencies embark on an unpreceded effort to address America's infrastructure.

I. The National Environmental Policy Act

At the beginning of NEPA, in Section 101, Congress included a lofty "declaration of national environmental policy" that states "that it is the continuing policy of the federal government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, 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."⁷ To contribute toward accomplishing this national policy, the heart of NEPA in Section 102, requires federal agencies assess the environmental effects of their proposed actions before making a decision.⁸ It is this language in Section 102 that has made NEPA the environmental law giant it is today.

Under Section 102, federal agencies must assess the environmental impact of proposed decisions and prepare an environmental impact statement (EIS) for "every recommendation or report on proposals for legislation... and other major federal actions significantly affecting the quality of the human environment."⁹ In the federal public lands context, NEPA is triggered when federal land management agencies engage in land management planning, rule-making or at the project level, for example when they consider approving activities such as the development of an oil and gas field or the creation of a new recreational hiking path. If the action contemplated by the federal agency does not reach the threshold of a "major federal action significantly affecting the quality of the human environment" the agency may prepare an environmental assessment (EA) which concludes with a finding of no significant impact,¹⁰ or employ a categorical exclusion (CE) for activities known to not have a significant impact on the environment (either individually or cumulatively).¹¹

Through NEPA, Congress also created the CEQ.¹² In 1970, President Nixon issued Executive Order (E.O.) 11514, Protection and Enhancement of Environmental Quality, which directed the CEQ to issue guidance to the federal agencies on the implementation of section 102

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of NEPA.¹³ In 1977, President Carter issued E.O. 11991, Relating to Protection and Enhancement of Environmental Quality, amending E.O. 11514 and directing the CEQ to promulgate NEPA regulations to govern the implementation of NEPA and requiring federal agencies to comply with those regulations.¹⁴

While Congress, through its policy declaration in Section 101, may have initially intended NEPA to be a "remaking of American into a sustainable civilization," through the action forcing mechanism in Section 102, and later through the detailed CEQ NEPA regulations, NEPA has been interpreted as a procedural statute.¹⁵ As a procedural statute, NEPA does not mandate a particular results or substantive outcomes. Instead, NEPA requires federal agencies to look before they leap by considering the environmental impacts of proposed actions as part of their decision-making process. As a procedural statute, the Supreme Court has held that NEPA's two aims including ensuring that agencies consider the most significant environmental consequences of their proposed actions and inform the public about those decisions.¹⁶

When taking a hard look, NEPA requires that federal agencies include in an EIS: "(i) the environmental impact of the proposed action, (ii) any adverse effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, (v) and any irreversible or irretrievable commitments of resources which would be involved in the proposed action should it be implemented."¹⁷

II. CEQ NEPA Regulations

President Carter's 1977 E.O. directing the CEQ to promulgate NEPA regulations made CEQ the "de facto parent" of NEPA.¹⁸ Prior to this point, federal agencies were provided little clarity on how to implement NEPA because while NEPA created the CEQ, and the agency issued some early NEPA guidance, CEQ did not initially have authority to steer the course of the law.¹⁹ Without detailed agency regulations, NEPA was "a foundling bouncing from court to court seeking its guidance source," resulting in inconsistency from case to case.²⁰

Under the authority of the 1977 E.O., CEQ promulgated its first NEPA regulations in 1978.²¹ Sections of the regulations attempted to resolve some of the problems that had emerged in the prior eight years implementing the statute, while other sections simply restated NEPA rulings

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from the courts.²² Federal agencies were required to comply with the new NEPA regulations and were also directed to adopt their own NEPA procedures, focused on NEPA implementation.²³

Perhaps because they were written with the benefit of eight years of prior NEPA experience, the 1978 regulations demonstrated remarkable longevity and were not substantively amended for forty years.²⁴ This regulatory stability has resulted in the development of extensive experience by both the CEQ and the federal agencies in implementing the 1978 NEPA regulations, and for better or worse, the development of a large body of case law on the regulations as well.

The longevity of the regulations should not suggest that there was not opposition to NEPA and the 1978 CEQ regulations; in fact, opposition to NEPA emerged soon after it was passed and over the years there have been various efforts reform or streamline...