CHAPTER 4 TAKING A HARDER LOOK AT DIRECT, INDIRECT, AND CUMULATIVE IMPACTS

• Jurisdiction: United States

National Environmental Policy Act
(Oct 2010)
CHAPTER 4
TAKING A HARDER LOOK AT DIRECT, INDIRECT, AND CUMULATIVE IMPACTS^*
Murray D. Feldman
Holland & Hart LLP
Boise, Idaho

MURRAY D. FELDMAN is the administrative partner of the Boise, Idaho, office of Holland & Hart LLP, where he practices with the firm's Environment, Energy, and Natural Resources group. He has represented regulated community interests, state and local governments, landowners, and others in litigation, administrative proceedings, and counseling on NEPA, endangered species, water quality, environmental cleanup, environmental permitting, and related issues in the Pacific Northwest, Alabama, Colorado, Michigan, Nevada, New Mexico, Texas, and Washington, D.C. Murray is listed in the Best Lawyers in America, Chambers USA America's Leading Lawyers for Business, and Mountain States Super Lawyers. He co-authored "NEPA's Scientific Analysis Requirements" for the 53d Institute and "Considering Climate Change in NEPA and ESA Processes" for the 2008 RMMLF Journal.

I. Introduction

The National Environmental Policy Act (NEPA) directs federal agencies to identify, consider and disclose the environmental impacts of, and alternatives to, major federal actions significantly affecting the quality of the human environment.¹ NEPA further requires those agencies to take a "hard look" at the environmental consequences of their proposed actions and to provide a reasonably thorough discussion of the significant aspects of the probable environmental consequences in environmental assessments or environmental impact statements.² An adequate understanding of environmental impacts often demands the analysis of available scientific information, collection and analysis of additional data, or the use or application of models or other predictive technologies (such as groundwater hydrology, streamflow, sediment yield, noise propagation, and wildlife population and habitat analyses) to describe likely environmental effects.³

This paper consists of two parts. Part One describes the basic Council on Environmental Quality (CEQ) requirements for analyzing, evaluating, and disclosing the environmental consequences of proposed federal actions--i.e., the environmental impacts--in a NEPA document, i.e. an environmental impact statement (EIS) or environmental assessment (EA).⁴ Part One addresses the basic CEQ requirements for the evaluation of direct, indirect, and cumulative effects, ascertaining the possible significance of these effects, and addresses several practical "as applied" issues that arise in the impact assessment methodology.

Part Two turns to the standard of review applied by the federal courts in reviewing challenges to the impact assessment analyses and disclosure of impacts contained in NEPA

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document. Part Two explains that in recent years--since at least 1998 if not earlier--the federal courts have begun to dig even deeper and review more closely whether agencies have met the CEQ requirements for impact analyses and disclosures, resulting in the current framework of "harder-look" judicial review, the history of which is traced and the current status explored further in Part Two.

Part One

II. Statutory and Regulatory Framework

A. NEPA's Twin Goals.

NEPA's twin goals are: (1) to foster informed decision-making by "ensur[ing] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts," and (2) to promote informed public participation by requiring full disclosure of and opportunities for the public to participate in governmental decisions affecting environmental quality.⁵ To that end, agencies must disclose the scientific information and analyses on which they rely in their environment effects analyses and decisionmaking processes.

B. NEPA's Action-Forcing Provisions.

NEPA requires the preparation of an EIS for every "major Federal action significantly affecting the quality of the human environment."⁶ An EIS, among other things, details "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and "alternatives to the proposed action."⁷ An agency may first prepare an EA to aid in its implementation of NEPA and to determine whether the effects of the action will be significant, requiring analysis in an EIS.⁸ If the EA concludes with a finding of no significant impact (FONSI), then preparation of an EIS is not required.⁹ But the EA's FONSI determination must still be supported by the agency's record and any applicable scientific information and analysis. While NEPA does not require a particular substantive outcome, it does "mandate[] that the agency gather, study, and disseminate information concerning the project['s] environmental consequences."¹⁰

C. NEPA's Scientific Information and Data Requirements.

NEPA requires agencies to "[u]tilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in

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planning and in decision-making which may have an impact on man's environment."¹¹ "In the language of the caselaw, NEPA thus broadly requires that the [agency] take a 'hard look' at the environmental consequences of its actions."¹²

The CEQ's NEPA regulations, binding on all federal agencies,¹³ provide standards for an EIS's information requirements and preparation.¹⁴ An EIS must clearly present information and analysis of the environmental consequences that form the scientific and analytic basis for consideration of reasonable alternatives.¹⁵ In preparing an EIS, agencies must "insure the professional... and scientific integrity, of the discussions and analyses in environmental impact statements."¹⁶ In so doing, they must identify the methodologies used, and must explicitly refer to the scientific and other sources of information relied upon for conclusions set forth in the EIS. The information included in an EIS "must be of a high quality," and must allow for "accurate scientific analysis, expert agency comments, and public scrutiny."¹⁷ An EIS must identify any methodologies used and reference the scientific sources relied upon.¹⁸ The agency must also discuss responsible opposing views.¹⁹ At the same time, EISs should not be encyclopedic, but rather "concise, clear, and to the point, and . . . supported by evidence that agencies have made the necessary environmental analyses."²⁰ Impacts should be discussed in proportion to their significance, and "data and analyses in a statement shall be commensurate with the importance of the impact" of the proposed action or its alternatives.²¹

When information "relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives," the CEQ regulations require that the agency either: (1) determine that the cost of obtaining such information is "exorbitant or the means to obtain it are not known," or (2) obtain the information and include it in the EIS.²² NEPA's purpose, however, is not "the accumulation of extraneous background data."²³ If obtaining the information is too costly or infeasible, the agency can forego its collection, in which case the agency must include in the EIS: (1) A statement that the information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information; (3) a summary of relevant "existing credible scientific evidence;" and (4) the agency's evaluation of

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impacts based on "theoretical approaches or research methods generally accepted in the scientific community."²⁴ The underlying purpose of the CEQ regulations is to ensure that agencies, to the greatest extent possible, have access to and include in environmental analyses all available information necessary to assess impacts and make a reasoned choice between alternatives.²⁵

Overall, NEPA, its implementing regulations, and agency guidance all recognize that an effective impact analysis and an agency's choice among reasonable alternatives must be based on the review of relevant high-quality data and other information.

III. Evaluation of Environmental Effects

NEPA requires that an agency discuss the environmental effects of a proposed action in an EA or an EIS. 42 U.S.C.A. § 4332(2)(C); see also 40 C.F.R. § 1502.16; NRDC v. U.S. Forest Service, 421 F.3d 797, 811 (9th Cir. 2005). NEPA's implementing regulations define environmental effects to include both the direct and indirect effects of a proposed action, as well as cumulative effects. "Direct effects" of a proposed action are those "that are caused by the action and occur at the same time and place." 40 C.F.R. § 1508.8(a). "Indirect effects" are defined as those that are:

caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

Id. at (b) (emphasis added). The CEQ regulations go on to explain that "effects" include ecological, aesthetic, historic, cultural, economic, social, or health effects, whether those effects are direct, indirect, or cumulative. Id.; see Sierra Nevada Forest Protection Campaign v. U.S. Forest Service, 2006 WL 148966 (9th Cir. Jan. 19, 2006) (unpublished) (upholding EA's cumulative effects discussion).

A. Direct and Indirect Effects

The Supreme Court has indicated that the scope of an agency's authority may also play a role in determining whether indirect effects must be considered under NEPA. In U.S. Dep't of Transp. v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204 (2004), the DOT prepared an EA on proposed new safety regulations for...