CHAPTER 5 SO WHAT EXACTLY ARE WE DOING HERE?: DEFINING THE SCOPE OF NEPA REVIEW AND THE LIMITED UTILITY OF THE “CONNECTED ACTION” ANALYSIS
| Jurisdiction | United States |
(Oct 2010)
SO WHAT EXACTLY ARE WE DOING HERE?: DEFINING THE SCOPE OF NEPA REVIEW AND THE LIMITED UTILITY OF THE "CONNECTED ACTION" ANALYSIS
Sturm College of Law
University of Denver
Denver, Colorado
FEDERICO CHEEVER is a Professor of Law and Associate Dean for Academic Affairs at the Sturm College of Law. After graduating from Stanford University (B.A./M.A. 1981) and UCLA (J.D. 1986), and clerking for Judge Harry Pregerson of United States Court of Appeals for the 9th Circuit in Los Angeles (1986-1987), Fred came to Denver as an Associate Attorney for the Sierra Club Legal Defense Fund (1987-1989). Between 1990 and 1993, he was an associate at the law firm Faegre & Benson, in Denver, doing commercial and environmental litigation. He began teaching at the University of Denver College of Law in 1993 specializing in Environmental Law, Wildlife Law, Public Land Law, Land Conservation Transactions and Property. Cheever writes extensively about the Endangered Species Act, federal public land law and land conservation transactions. He has recently co-authored the second edition of a natural resources casebook, Natural Resources Law: A Place-Based Book of Problems and Cases, with Christine Klein and Bret Birdsong (2009).
By Federico Cheever, Professor of Law and Associate Dean of Academic Affairs, University of Denver Sturm College of Law
One of the essential functions in environmental impact analysis -- at any level, under any statutory or regulatory regime -- is the identification of the contours of the proposal being analyzed. This is not a paperwork function. Nor is it a distinct quality of environmental impact statements. It is just something one has to do to prepare an adequate analysis. You cannot paint a picture without knowing where the edges of the canvas are. You cannot play ball without knowing what is in bounds and what is out of bounds.
The language of the National Environmental Policy Act (NEPA) itself says nothing about the requirement to identify the contours of the proposal or the process of letting the public know about that identification. However, the Council on Environmental Quality regulations (CEQ Regulations) promulgated under that statute and the case law generated by 30 years of interpreting those regulations say a great deal.
One of the universal temptations in environmental analysis -- at any level, under any statutory or regulatory regime -- is to "segment" or "piecemeal" a project: to break it down into pieces which are easier to analyze and, often, subject to less stringent forms of environmental analysis. With every segmentation, however, connections are lost. With every segmentation, cumulative impacts become more difficult to identify and manage. With every segmentation, opportunities for mitigation are obscured. The CEQ Regulations' procedure for preventing unwarranted segmentation is the scoping process, embodied in all environmental impact statements and many environmental assessments. Within the scoping process, the most significant and contentious, concept for preventing segmentation is the definition of "connected action" within the CEQ Regulations' definition of "scope."
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While a variety of recent cases finding NEPA processes inadequate as a result of systemic, sometimes political flaws,1 suggest that courts are taking a more active role in reviewing agency NEPA decisions, a review of historical and recent "connected action" decisions suggest that the judiciary's new activism has real and important limits. When it comes to the hardest questions of how to define the scope of a project for environmental analysis, courts still defer to federal agencies in the vast majority of cases.
The Scoping Regulations
The core regulations in what we can now begin to call the "scoping process", are the regulations governing the official scoping process for environmental impact statements, 40 C.F.R. § 1501.7, and the regulation defining "scope." § 1508.25.
They require "and early and open process."2 They require participation by "Federal, state and local agencies",3 affected Indian tribes and "proponents of the action."4
They authorize the elimination from detailed study of "of issues which are not significant."5
Finally, in phasing that would make an oracle blush, they require the consideration of three types of actions, three types of alternatives and three types of impacts.6
Connected Actions, Cumulative Actions and Similar Actions7
No action alternatives, reasonable alternatives and mitigation measures8
Direct impacts, indirect impacts and cumulative impacts.9
The definition of "significantly", 40 C.F.R. § 1508.27 which governs so much of the process of determining whether to prepare an environmental impact statement is
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also effectively a scoping regulation, both in its often enigmatic "context" section (requiring analysis in the context of "human society as a whole"10 ) and in it endlessly troublesome requirement for the consideration of cumulative impacts, which, of course, echoes, but also illuminates, the "scope" definition.11 "Significance" the definition informs us, "exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts."12 This focus on segmenting projects over space and time, echoed in the "connected action" definition, will dominate the rest of our discussion of scope.
The definition of "environmental assessment", 40 C.F.R. § 1508.9, with its requirement for discussion of the environmental impact of the proposed action also embodies scoping. The definition of "major federal action" 40 C.F.R. § 1508.18 with its requirement for dividing those things within federal control and those things outside it requires scoping. The CEQ Regulations' definition of "categorical exclusion", 40 C.F.R. 1508.4, with its prohibition against categorically excluding actions which have cumulatively "significant effect" also embodies scoping.
In one of the nation's most famous examples of sub-regulatory guidance, NEPA's Forty Most Asked Questions, published in the Federal Register in 1981, 46 Fed. Reg. 18026 (1981), but now available on line from a variety of sources13 (question 13), CEQ specifically advertised the importance of scoping outside the context in which it is specifically required:
Can the scoping process be used in connection with preparation of an environmental assessment, i.e., before both the decision to proceed with an EIS and publication of a notice of intent?
A. Yes. Scoping can be a useful tool for discovering alternatives to a proposal, or significant impacts that may have been overlooked. In cases where an environmental assessment is being prepared to help an agency decide whether to prepare an EIS, useful information might result from early participation by other agencies and the public in a scoping process.
The regulations state that the scoping process is to be preceded by a Notice of Intent (NOI) to prepare an EIS. But that is only the minimum requirement. Scoping may be initiated earlier, as long as there is appropriate public notice and
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enough information available on the proposal so that the public and relevant agencies can participate effectively.
However, scoping that is done before the assessment, and in aid of its preparation, cannot substitute for the normal scoping process after publication of the NOI, unless the earlier public notice stated clearly that this possibility was under consideration, and the NOI expressly provides that written comments on the scope of alternatives and impacts will still be considered.
While agency regulations do not generally require scoping outside the EIS process (but see Environmental Assessments with Scoping14 ), an unscientific survey of recently prepared environmental assessment shows that some include something called "scoping" or "scope."15
Scoping isn't something you can avoid. So you might as well try to understand it.
Three Types of Action
Of all the aspects of scoping discussed in the NEPA CEQ regulations, no issue receives more attention in term of words used or prominence of place than the question of "connected actions." Connection actions" "are closely related and therefore should be discussed in the same impact statement." "Actions are connected if they:
(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.16
We will not talk much about the other two types of action described in the definition of scope. "Cumulative actions" fall within the realm of Mr. Feldman's discussion this morning.
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"Similar actions" are rendered generally outside the area of inquiry of the federal courts by the use of the fatal word "may" and the slightly more ambiguous word "should" in regulation § 1508.25(a)(3).17 While referenced in a variety of cases,18 the "similar actions" provision rarely if ever plays a part in finding agency action illegal, even when the factual case for similarity is overwhelming.19 The only recent use of the word "must" by a federal appellate court in connection with the similar action provision did not involve the language of the provision itself, but rather a more restrictive Forest Service handbook provision interpreting it.20
We law professors enjoy talking about "connected actions" and the subset of connected action problems we call "small handles" -- private projects for which a relatively small part require federal approval. We like talking about "small handle" problems largely for the same reason we like talking about the Rule Against Perpetuities: They are intellectually...
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