Chapter 3 Piecing It Together: A Newcomer's Guide to Finding NEPA Resources

• Jurisdiction: United States

Chapter 3 Piecing It Together: A Newcomer's Guide to Finding NEPA Resources
Danielle DiMauro U.S. Department of the Interior, Office of the Solicitor Lakewood, CO
Deana M. Bennett Modrall Sperling Albuquerque, NM

DANIELLE DIMAURO is an attorney in the Rocky Mountain Region of the Office of the Solicitor for the U.S. Department of the Interior. She advises and represents the Bureau of Land Management in matters involving land-use planning, oil and gas leasing and development, mining, wild horses, rights-of-way, travel management, renewable energy, and grazing. For the last year, she has been the Acting Field Solicitor for the Billings Field Office, and she co-supervises the Denver office's law student intern program. Danielle received her J.D. from the University of Colorado School of Law, her M.S. in Wildlife Ecology from the University of Maine, and her undergraduate degree in biology from Smith College. She practiced in the Denver offices of two national law firms before joining the Office of the Solicitor.

DEANA M. BENNETT's practice is focused on natural resource development on public and tribal lands. Deana's experience includes permitting and environmental compliance efforts under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and other related federal statutes. She has worked on a number of utility matters, and her experience includes working with renewable resource developers with siting issues on public, tribal, state, and local land. Her work also includes representing wind and solar projects, focusing on state and federal environmental law, permitting, due diligence, and opinion letters. Deana has represented lenders and borrowers in a number of renewable energy projects in New Mexico. Prior to joining Modrall Sperling, Deana served as a judicial law clerk for the Honorable Richard Bosson of the New Mexico Supreme Court. Deana is recognized in Native American Law at the state and national levels by Chambers USA. She is also recognized by Best Lawyers in America® for her work in Energy Law and Native American Law, and by Southwest Super Lawyers®. It is not surprising that Deana's practice areas focus primarily on natural resource development and public lands. Deana calls the West home, from New Mexico to Alaska. Deana's early childhood was spent travelling in a Volkswagen bus from Yellowstone National Park to Everglades National Park, where her father was a Park Ranger. After leaving the Park Service, her father worked for the Bureau of Land Management until he retired. Deana is a true coal miner's daughter; her mother worked in an underground coal mine in Wyoming for several years, while her father attended the University of Wyoming. Before attending law school, Deana retraced some of her childhood adventures. Deana worked in Yellowstone National Park, spent a winter working at a ski area in Utah, and spent two summers working on a luxury passenger train in Alaska, where she bought her own 1979 Volkswagen bus. Deana has driven the ALCAN twice in her bus.

I. INTRODUCTION¹

You are representing a client in NEPA regarding a proposed project that will under agency NEPA review. What resources should you review? You have been assigned to write a memo on a NEPA litigation question. Now what? You have been asked by a client to provide comments on a proposed federal action. Where do you start? The goal of this paper is to assist in answering those and other question by identifying and discussing NEPA resources. Of course, federal case law analyzing the adequacy of NEPA documents is extremely important, but is not be the only resource available.

Part II of this paper discusses NEPA and related statutes (Part II.A) and NEPA regulations (Part II.B) promulgated by the Council on Environmental Quality ("CEQ") and individual agencies. Part III of this paper outlines select agency guidance documents regarding NEPA implementation. Part IV of this paper discusses other helpful resources, including: Notices of Proposed and Final Rulemakings (Part IV.A); Resource Management Plan documents/E-planning resources (Part IV.B); administrative agency decisions (Part IV.C), and the Foundation's digital library (Part IV.D).

II. NEPA, RELATED STATUTES, AND IMPLEMENTING REGULATIONS

A. The Administrative Procedure Act, Clean Air Act, Endangered Species Act, and National Historic Preservation Act.

NEPA, as the statute at issue, is of course of primary importance when addressing a NEPA question. This paper does not discuss NEPA, given the numerous papers on this topic both at this Special Institute and many others. In the next section, this paper explores the regulations promulgated by the CEQ, which was established by Congress when it enacted NEPA.³ The CEQ is within the Executive Office of the President.

Before turning to a discussion of NEPA regulations, this paper briefly addresses two statutes that have a direct role in NEPA's operation, and two statutes that often bear on proposed actions subject to NEPA review may be additional resources for NEPA: the Administrative Procedure Act ("APA"), Clean Air Act ("CAA"), Endangered Species Act ("ESA"), and National Historic Preservation Act ("NHPA").

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NEPA does not provide a private cause of action, and thus NEPA claims must be brought pursuant to the APA.⁴ Under the APA, a court "will not overturn an agency's decision unless it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'"⁵ The APA and case law and agency decisions interpreting it are key to understanding judicial review of NEPA decisions and agency requirements.

Section 309 of the Clean Air Act, 42 U.S.C. § 7609, requires the U.S. Environmental Protection Agency ("EPA") to review and comment on environmental impact statements ("EIS") prepared by federal agencies pursuant to NEPA. EPA's comments are publicly available on its website.⁶

Many federal actions triggering NEPA also require some level of ESA⁷ and NHPA⁸ review. Section 7 of the ESA requires federal agencies to consult with the Fish and Wildlife Service (or NOAA) about proposed actions that may affected listed species or adversely modify designated critical habitats.⁹ NHPA Section 106 requires federal agencies to consider the effects on historic properties that may result from proposed federal actions.¹⁰ Agencies have adopted guidance to address the relationships among these statutory schemes.¹¹

B. NEPA Regulations

This section of the paper discusses CEQ's NEPA regulations. It also discusses, as examples, the NEPA regulations of the U.S. Department of the Interior, U.S Department of Agriculture, U.S. Forest Service, and Federal Energy Regulatory Commission ("FERC").¹² CEQ promulgates NEPA's implementing regulations and reviews and approves other federal agencies' NEPA procedures.¹³ Federal agencies must review their own NEPA regulations periodically to

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"ensure full compliance with the purposes and provisions of [NEPA]."¹⁴ The CEQ website lists federal agencies that have NEPA adopted NEPA regulations (or guidance), with links to the agency-specific information.¹⁵

1. CEQ's NEPA Regulations

CEQ originally issued guidelines for NEPA compliance in 1971.¹⁶ In 1977, President Carter directed CEQ to promulgate binding regulations to implement NEPA.¹⁷ CEQ published its regulations implementing NEPA in November 1978.¹⁸ "CEQ regulations implementing NEPA . . . are binding on all federal agencies."¹⁹ CEQ's NEPA implementing regulations are found at 40 C.F.R. Part 1500. The Supreme Court has held that "CEQ's interpretation of NEPA is entitled to substantial deference."²⁰

In July 2020, CEQ overhauled its NEPA regulations and issued a new final rule (the "Rule"),²¹ which became effective September 14, 2020. On his first day in office, President Biden directed CEQ to review the new NEPA regulations, and on October 7, 2021, CEQ published a notice of a phased approach proposing to reverse certain provisions of the Rule.²² In April 2022, CEQ issued Phase I of the Final Rule.²³ Of particular note, the April 2022 Final Rule revised the definition of effects "to include direct, indirect, and cumulative effects."²⁴ CEQ stated that it was "making these changes in order to better align the provisions with CEQ's extensive experience implementing NEPA and unique perspective on how NEPA can best inform agency decision making, as well as longstanding Federal agency experience and practice, NEPA's statutory text and purpose to protect and enhance the quality of the human environment, including making decisions informed by science, and case law interpreting NEPA's requirements."²⁵

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"In reviewing challenges to NEPA compliance, [courts] give 'substantial deference' to the regulations promulgated by the . . . [CEQ], the federal agency established to fill in the gaps of NEPA's regulatory scheme."²⁶ Courts have held, not surprisingly, that other agencies' interpretation of NEPA or the CEQ regulations is entitled to no deference "because NEPA is addressed to all federal agencies and Congress did not entrust administration of NEPA to the [other agencies] alone.'"²⁷

2. U.S. Department of the Interior NEPA Regulations

The U.S. Department of the Interior has promulgated NEPA regulations at 43 C.F.R. Part 46. The department originally articulated its NEPA procedures in its Departmental Manual, but codified its procedures in the Code of Federal Regulations in 2008.²⁸ The regulations apply to the department "and its constituent bureaus" and establish procedures for compliance with NEPA and CEQ's regulations.²⁹ As discussed in more detail below, the Department of the Interior and its agencies continue to utilize department manuals ("DM") and other guidance documents for NEPA compliance.³⁰

When the Department of the Interior transitioned its NEPA procedures from the DM to regulations, it made certain "key" changes to the NEPA procedures, including:

• Clarifying] which actions are subject to NEPA

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