CHAPTER 5 THE EPA'S ROLE IN THE NEPA PROCESS

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 5
THE EPA'S ROLE IN THE NEPA PROCESS
Nicole M. Blevins
Bret A. Sumner
Beatty & Wozniak, P.C.
Denver, Colorado

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BRET A. SUMNER is a Shareholder with Beatty & Wozniak, P.C., in Denver, CO. Bret specializes in oil and gas and environmental matters. He handles oil and gas litigation and regularly defends permits and projects from challenges in federal and state courts, and before administrative regulatory and adjudicatory entities. He also works with clients confronted with state and federal investigation and enforcement proceedings. Bret counsels clients on front-end regulatory authorization and environmental compliance matters, with the twin goals of expediting project approvals from federal, state, and local agencies, and minimizing litigation risk. He counsels companies on the preparation of environmental documentation and permit applications, and works with federal and state agencies to facilitate efficient processing of permits. He regularly engages and advocates on behalf of clients and industry before Executive Branch Departments and federal agencies, including the Department of the Interior, Department of Agriculture, Bureau of Land Management, U.S. Fish and Wildlife Service, U.S. Forest Service, and the Environmental Protection Agency. Bret advises companies on compliance with federal statutes, such as the National Environmental Policy Act, Clean Air Act, Clean Water Act, Endangered Species Act, Federal Land Policy and Management Act, National Forest Management Act, and National Historic Preservation Act. Prior to joining Beatty & Wozniak, P.C. in 2009, Bret practiced in the Washington D.C. Office (1998 to 2006) and Denver Office (2007 to 2008) of the international law firm of Fulbright & Jaworski, L.L.P. He is admitted to practice law in Colorado, Utah, the District of Columbia, and Maryland, and before the U.S. Supreme Court, U.S. District Courts for the Districts of Colorado, Utah, and the District of Columbia, and the U.S. Courts of Appeals for the D.C. Circuit and the Tenth Circuit.

Over the past eight years, the Environmental Protection Agency (EPA) has increasingly leveraged its participation in the National Environmental Policy Act (NEPA) process to urge federal agencies to modify or even reject proposed projects or to compel the project proponent to accept mitigation measures that the action agency may lack the statutory authority to require and which affect a project's economics. The key resource issues that are the focal point of EPA's efforts include air quality, greenhouse gases, and water quality, along with the overarching issues of climate change and global warming. In parallel with these efforts, environmental non- governmental organizations (eNGOs) have escalated their efforts to use NEPA to slow or stop projects related to hydrocarbon leasing, exploration, development, production, transportation, and use. These trends underscore the need for project proponents to understand the role of the EPA in the NEPA process, as well as the legal contours and appropriate statutory limitations that are applicable to this process.

This paper provides an overview of the legal and regulatory frameworks that are pertinent to EPA's role in the NEPA process, including EPA's role as a cooperating agency, its separate statutory responsibilities under Section 309 of the Clean Air Act for reviewing Environmental Impact Statements (EISs), and EPA's rating system and criteria for draft NEPA documents. This paper also provides an overview of the scope of EPA's comments on NEPA documents, and recent trends in EPA's expanding role in the NEPA process, particularly for upstream oil and gas projects through an inter-agency Memorandum of Understanding regarding air quality analysis and mitigation for federal oil and gas decisions.

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I. Legal Framework

EPA participates in the NEPA process under two separate legal authorities. First, EPA may participate as a cooperating agency under NEPA, where it provides review and feedback to the lead federal agency for a particular project or federal undertaking. Second, EPA has a statutory mandate under Section 309 of the Clean Air Act to review Environmental Impact Statements promulgated under NEPA and comment on the adequacy of information disclosed in the document, as well as provide their views on the potential environmental impacts of the proposed action and related mitigation measures. These provisions are discussed in turn below.

A. NEPA

1. Statutory Overview

The legal parameters of NEPA are well settled and will not be discussed in detail here. NEPA is strictly a procedural statute designed to ensure that a federal agency makes an informed decision and discloses information to the public on a proposed action and its potential impacts.¹ As the U.S. Supreme Court has plainly stated, "NEPA itself does not mandate particular results, but simply prescribes the necessary process."² After identifying and evaluating the "adverse environmental effects" of a proposed project, an "agency is not constrained by NEPA from deciding that other values outweigh the environmental costs."³ Thus, in essence, the statute "prohibits uninformed--rather than unwise--agency action."⁴

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In preparing an EIS, an agency is required to identify and evaluate any adverse environmental impacts.⁵ A federal agency is not, however, required to withhold authorization for the project simply because adverse environmental impacts are predicted to occur.⁶

2. NEPA Cooperating Agency Provisions - 40 C.F.R. § 1501.6

NEPA's implementing regulations emphasize agency cooperation during the NEPA process and require the lead agency to solicit cooperation from other federal agencies with jurisdiction by law or expertise on any environmental issue that should be addressed in the EIS.⁷ In addition, the Council on Environmental Quality's (CEQ) guidance recommends that the lead agency also seek cooperation from any similarly qualified state or local agencies or Indian tribes.⁸ Any agency may also request the lead agency to designate it as a cooperating agency.⁹ The lead agency and cooperating agencies will determine by letter or memorandum which agencies will undertake cooperating responsibilities.¹⁰ The lead agency must use the

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environmental analysis and proposals of cooperating agencies to the maximum extent possible consistent with its responsibility as the lead agency.¹¹

A cooperating agency must generally comment on EISs, assume responsibility for developing information and analyses, including portions of the EIS for which the cooperating agency has special expertise, and make staff available to enhance the lead agency's interdisciplinary capability.¹² Cooperating agencies may opt out or limit their involvement if necessary due to resource limitations; however, agencies with jurisdiction by law (i.e., permitting or other approval authority) cannot completely opt out of their duty to cooperate on the EIS.¹³ To opt out or limit involvement, the cooperating agency must inform the lead agency in writing and provide a copy to the CEQ.¹⁴

3. Legal Precedent - Agency Disagreement; Lead Agency Authority

The lead agency has the ultimate responsibility for the content of the EIS.¹⁵ Nevertheless, it must use the environmental analysis and recommendations of cooperating agencies to the maximum extent possible.¹⁶ A lead agency must also consider and respond to comments of other agencies but it is not required to agree with them.¹⁷ In the event that the lead

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agency leaves out a significant issue or ignores the advice or expertise of a cooperating agency, the EIS may later be found to be inadequate.¹⁸

The lead agency's response to comments may include modification of alternatives, development and evaluation of alternatives not previously given serious consideration, as well as supplemental or improved analysis. For example, the U.S. District Court for the District of Columbia found that the Forest Service adequately responded to the U.S. Fish and Wildlife Service's and a biology professor's comments on potential impacts to golden eagles by conducting golden eagle surveys and imposing mitigation measures to minimize impacts on golden eagles.¹⁹ On the other hand, the lead agency is not required to adopt recommendations from a cooperating agency. NEPA's implementing regulations provide that the lead agency can simply provide an explanation as to why certain cooperating agency comments do not warrant further agency response or action.²⁰

Using the "rule of reason," courts will determine whether a lead agency has adequately considered the comments of other agencies.²¹ Accordingly, a lead agency's decision, that contradicts the opinions of other agencies, will be upheld when the record demonstrates that the lead agency considered and responded to the other agencies' comments.²² Agencies are also entitled to rely on their own experts, who disagree with other commenters, so long as their

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decisions are not arbitrary and capricious.²³ Finally, lead agencies do not need cooperating agency approval to proceed with a proposed action.²⁴ The lead agency can "agree to disagree" with a cooperating agency and must simply document its basis for proceeding with its particular course of action in light of those comments.

B. EPA Review Authority under the Clean Air Act

EPA is charged, under Section 309 of the Clean Air Act, with reviewing the EISs of other federal agencies and commenting on the acceptability of the environmental impact and the adequacy of the information provided in the EISs.²⁵ This review is independent from any responsibility that EPA may have as a cooperating agency.²⁶ The purpose of the Section 309 review is to ensure that mission-oriented federal agencies have access to environmental expertise in order to give adequate consideration to environmental...