CHAPTER 4 EXPEDITING LEASE OR PERMIT PROCESSING AND ISSUANCE
| Jurisdiction | United States |
(Mar 1981)
EXPEDITING LEASE OR PERMIT PROCESSING AND ISSUANCE
Holland & Hart
Denver, Colorado
The two papers which have preceded this one put the permitting process in historical perspective and deal with organizing the management of permitting projects. This paper will deal with several ideas for expediting environmental permitting in unison with Environmental Impact Statement ("EIS") preparation which I have found to work very well in practice. The genesis of these ideas is, primarily, the painful experience of defending poorly planned permitting of major projects in federal court. Like good tax planning, there are some clear, common-sense opportunities which can reduce delays and do much to assure legal adequacy.
Discharging water pollutants or emiting air pollutants or storing, treating or disposing of "hazardous" waste without the required permits, notices and approvals is a matter of no small consequence. In extreme cases, fines ranging up to $50,000 a day and/or imprisonment can result from knowing or negligent violations. Civil penalties of up to $25,000 a day may also be imposed. But, as important as civil and criminal penalties are, by far the greatest economic penalty is delay. With tens of millions invested in exploration, preliminary engineering and metallurgy, each day of delay can be worth millions, without even considering lost profits.
Preventing delay is what this paper is about. It is focused particularly on the legal problems which often result in delay, and how those delays can and should be avoided. Those directing this program have asked that this paper not be technical and filled with citations of cases and authorities. I have complied with alacrity, and have tried to highlight the most practical suggestions for avoiding legal inadequacy in permitting and EIS preparation.
I. Delay in Permitting: The General Principles and Truisms.
How do you prevent delay in environmental permitting? Don't miss a permit requirement. Don't miss a federal or state site-specific, regional or programmatic EIS requirement.
[Page 4-2]
Get the right lead agency early. Be sure that there is adequate coordination and communication between the company, all agencies involved and the public. Collect all the data required for all the permits and the EIS or EIS's. Satisfy the EIS regulations and data requirements of not only the lead agency, but each "cooperating agency" with independent EIS requirements. Be sure that the scope of the environmental studies is legally adequate before they are undertaken. Be sure that those performing the environmental studies are not only legally qualified to render expert opinions in court, but are persuasive and authoritative witnesses. Review the draft EIS for legal adequacy and remedy any deficiencies with comments which become part of the final EIS. Be sure that all notices, public hearings, public participation and procedural requirements are followed. Design an environmentally sound project, incorporating measures to mitigate adverse impacts and to adopt environmentally preferable alternatives where practical. Document compliance, and prepare for the contingency of litigation. That's all there is to it. We all know these fundamentals of the permitting process. Right. So how are they typically carried into practice?
What I would like to put forward in this paper is, first, a description of the way in which environmental permitting work on most major new projects is often, even usually, done. Second, I will identify the legal problems I see with proceeding in that fashion, and, third, I would like to put forward one method of environmental compliance planning which I believe serves the goal of expedition and is legally sound.
II. Environmental Permitting and Environmental Impact Statement Preparation: Existing Practice.
A brief summary of the pattern of Environmental Impact Statement preparation and permitting which I have often encountered, and which represents, I believe, much of existing practice, is as follows: Company X has a major new project to mine a promising new mineral, "Environmentalite," in the semi-arid reaches of the southwestern United States. The project is located on public land. Exploration is a bit skimpy, but promising, and the company has decided to pursue it. The economics of the project are still entirely in question, as are the outlines of the ore body, and the feasibility of the project in general. Nevertheless, the prospect of three to five years of delay for environmental work, if begun too late, is acknowledged to have a potential for killing the project.
The company's resident environmental expert, Dr. Daedalus, has been inundated in the past few years with thousands of pages of federal regulations governing permit programs, from air to water to solid and hazardous waste, and endangered species and historic preservation requirements. Dr. Daedalus
[Page 4-3]
is asked by corporate management to define environmental permits and approvals, critical environmental concerns, and compliance actions required to put the project on line. Numerous environmental consulting organizations have gotten wind of the project. They have offered to identify all permits and approvals. They have also outlined their experience and knowledge in working with regulatory agencies. They promise to prepare the Environmental Impact Statement, to prepare the permit applications, to see them through the agencies, and to deliver a "turn-key" environmental permitting project. Many of them have done it before.
Dr. Daedalus hasn't had time to read the deluge of new regulations, and his staff is busy with problems at existing plants. His staff simply doesn't have all of the areas of expertise needed. He also knows that the government agency which he thinks must prepare the EIS has its EIS interdisciplinary team doing wilderness and land use planning EIS's as well as EIS's on several other projects. The agency says it will need the services of an environmental consultant to prepare the EIS in a timely fashion. Company X decides to hire an environmental consultant. The company draws up RFP's for the work, gets bids, and asks the government agency what it thinks of certain prospective consultants. It then selects Consultant Y.
The consultant solicits the views of various officials in every agency it can think of in the state and federal governments with respect to what permits and approvals they believe are required of the project, and reports those requirements to its client. The consultant advises Company X to pick Lead Agency Z, since it is known to be more development-oriented than other possible lead agencies, by filing its first permit application...
To continue reading
Request your trial