CHAPTER 3 CONCEPTS AND STRATEGIES FOR A COMPLETE AND EFFICIENT NEPA PROCESS

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 3
CONCEPTS AND STRATEGIES FOR A COMPLETE AND EFFICIENT NEPA PROCESS
Constance L. Rogers
Brian Annes
Davis Graham & Stubbs LLP
Denver, Colorado

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CONNIE L. ROGERS is a partner with the law firm of Davis Graham & Stubbs, LLP, in Denver. She advises companies in project development, litigation, and transactions, primarily on federal public lands and Indian lands, with particular emphasis on compliance with federal land management statutes, the National Environmental Policy Act, species protection statutes, federal Indian law and cultural resource and religious freedom concerns, and state and local permits. Prior to resuming her practice at Davis Graham & Stubbs, LLP in the fall of 2010, Ms. Rogers served as Deputy Solicitor for Energy and Mineral Resources at the U.S. Department of the Interior, where she was the lead Interior lawyer on all manner of issues relating to the development of renewable and conventional energy and mineral resources on Interior-managed lands. Ms. Rogers' project development experience includes renewable/conventional energy and mineral and infrastructure projects on public and Indian lands; environmental and cultural resources compliance in federal permitting; financing, due diligence, land acquisition, and leasing for wind, solar, transmission, and biomass projects; special use authorizations for educational and research facilities on federal lands; working with stakeholder groups; and defense of legal challenges to project approvals. Ms. Rogers is a trustee of the Rocky Mountain Mineral Law Foundation and is vice-chair of the Public Lands Committee and a former co-chair of the Native American Resources Committee of the American Bar Association's Section on Environment, Energy and Resources. She also serves on the Board of Directors of the Center of the American West. Ms. Rogers has been selected for inclusion in The Best Lawyers in America© in the field of Native American Law and Who's Who Legal: Mining 2015. She was named to the Denver Business Journal's 2014 list of Top Women in Energy. She received her JD in 2000 from Georgetown University Law Center, J.D., magna cum laude, Order of the Coif.

Introduction

As discussed in previous papers, the purpose of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, is to promote better federal decisions (40 CFR 1500.1) by taking a "hard look" at the environmental consequences of federal actions prior to a decision is made that would constitute an "irretrievable commitment of resources." The purpose of this paper is to identify regulatory and process efficiencies that meet both of the dual goals of informed federal decision-making and avoiding unnecessary or duplicative analysis. Specifically, this paper will focus on (1) programmatic review, (2) tiering and incorporation by reference, (3) contractor preparation of NEPA documents, (4) the use of agency guidance, and (5) combining NEPA review with other statutory requirements.

The dual goals of informed decision-making and avoiding duplicative analysis have been present since NEPA's enactment and the adoption of the NEPA regulations. The NEPA regulations at 40 CFR 1500-1508 were established in 1978 by the Council on Environmental Quality (CEQ). In addition to prescribing the NEPA process and documentation thereof, these regulations established requirements and guidelines to reduce paperwork and establish efficiencies. For example, 40 C.F.R. § 1502.7 states that "the text of final environmental impact statements [EIS] shall normally be less than 150 pages and for proposals of unusual scope or complexity shall normally be less than 300 pages." It does not take long for a new NEPA practitioner to realize that we have not had a "normal" EIS since the early 1980s.

Similarly, the NEPA regulations provide that federal agencies "shall" reduce delay by such measures as: better coordination (40 C.F.R. § 1500.5(a)-(d); combining the NEPA process with other federal review processes (40 C.F.R. §§ 1500.4(k) and 1500.5(g); establishing time limits for the NEPA process (40 C.F.R. §§ 1500.5(E), 1500.7(b)(2) and 1501.8); use of categorical exclusions (40 C.F.R. §§ 1500.5(k), 1500.4(p) and 1508.4); and use of findings of no significant impact when appropriate which exempts the action from the requirement to prepare and environmental impact statement (40 C.F.R. §§ 1500.5(l), 1500.4(q) and 1508.13).

The NEPA regulations also provide for the adoption of other agencies' NEPA document (40 C.F.R. §§ 1500.5(h) and 1506.3); preparing programmatic NEPA documents (40 C.F.R. §§ 1500.4(i), 1502.4(b) and 1502.20); incorporation of other NEPA documents by reference (40 C.F.R. §§ 1500.4(j) and 1502.21); tiering the environmental analyses to previous NEPA documents (40 C.F.R. §§ 1502.20); and in certain circumstances providing for supplementation of an existing NEPA document instead of starting over (40 C.F.R. § 1502.9). The NEPA regulations also provides for federal agencies to review and revise their policies to ensure that they comport with NEPA standards (40 C.F.R. § 1500.6). In response to this direction, agencies have adopted myriad policies, manuals and guidance documents that are followed in addition to (and sometimes instead of) the NEPA regulations.

From the perspective of the project proponent, inefficiencies related to lack of agency capacity are routinely an issue and such concerns are only increasing with agency staff retirements, hiring freezes

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and policy transitions. With agency personnel capacity stretched thin, while some agencies still prepare their own NEPA documents, most allow for outside contractors to perform this work. The NEPA regulations also address this practice.

Each of the five topics addressed by this paper are worthy of a full exploration. Given they are addressed here together under the rubric of efficiencies in the NEPA process, a full discussion of the nuances is not possible. Where relevant, this overview identifies other articles or presentations that are helpful for further exploration of each topic.

1. Programmatic Review

The NEPA regulations provide that "[e]nvironmental impact statements may be prepared, and are sometimes required, for broad Federal actions such as the adoption of new agency programs or regulations (40 C.F.R. § 1508.18). Agencies shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking." 40 C.F.R. § 1502.4(b). Note that the regulations say that a programmatic EIS (PEIS) may be prepared. While site-specific EISs are required for all major federal actions significantly impacted the environment (discussed in previous sessions), the decision whether to prepare a PEIS is committed to agency discretion. Nat'l Wildlife Fed. v. Appalachian Regional Comm'n, 677 F.2d 883, 888 (D.C. Cir. 1981)(citing Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976). The detail required by NEPA in an EIS "depends on the nature and scope of the proposed action" and is related to the federal decision(s) to be made. California v. Block, 690 F.2d 753, 761 (9^th Cir. 1982). Because a PEIS covers either a large planning area, a federal program, or phased approval process, the standard requirements for site-specific analysis may not apply. Id.

Because of increased use of PEISs for landscape scale analyses, in 2014 CEQ issued guidance for the "Effective Use of Programmatic NEPA Reviews." Memorandum for Heads of Federal Departments and Agencies dated December 18, 2014 regarding "Effective Use of Programmatic NEPA Reviews" (CEQ Programmatic Guidance).¹ The point of a programmatic NEPA review is to facilitate decisions on matters that precede project-specific or site-specific implementation, and facilitate more efficient subsequent site-specific review and decisions. 79 Fed. Reg. 50578, 50582; CEQ Programmatic Guidance at 7.

The CEQ regulations identify 3 scenarios where programmatic review may be useful. First, agencies may organize reviews geographically. 40 C.F.R. § 1502.4(c)(1). This type of programmatic review is often utilized by BLM or the USFS in regional or local land planning efforts, such as the West-wide Energy Corridor Section 368 reviews.² Second, agencies may organize reviews generically, such as actions that have relevant similarities in terms of timing, impacts, implementation or subject matter. 40 C.F.R. § 1502.4(c)(2). This type of programmatic review is often utilized for a particular program, such as the PEISs that are prepared by BOEM for each five-year Outer Continental Shelf Oil and Gas Leasing Program,³ the Solar Energy Development FPEIS prepared jointly by BLM and DOE to evaluate the impacts of solar energy development for six southwestern states, identifying areas where solar energy

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development would be encouraged,⁴ the Draft PEIS developed by the FWS for the Eagle Take Rule Revision,⁵ and the BLM's Programmatic Vegetation Treatments EIS.⁶ Third, a PEIS or PEA may be organized by stage of technology, or demonstration projects for new technologies. 40 C.F.R. § 1502.4.

What benefits does a programmatic NEPA document provide? The CEQ notes that "[p]rogrammatic NEPA review may help an agency look at a large or multi-faceted action without becoming immersed in all of the details of future site- or project-specific proposals. . . . Using programmatic and subsequent tiered NEPA reviews effectively will allow for focused review at the proper level." CEQ Programmatic Guidance at 13.⁷ The key to whether a programmatic approach provides efficiencies is essentially a cost-benefit analysis. Would the programmatic analysis require an effort that is substantially greater than the time and effort saved in analyzing subsequent proposals or is the lifespan of the programmatic analysis limited? Id. at 16.

Two other issues were addressed in National Wildlife...