CHAPTER 5 THE ROLE OF THE PROJECT PROPONENT IN THE NEPA PROCESS

• Jurisdiction: United States

NEPA and Federal Land Development
(Feb 2006)
CHAPTER 5
THE ROLE OF THE PROJECT PROPONENT IN THE NEPA PROCESS
Ezekiel J. Williams
Faegre & Benson LLP
Denver, Colorado

Ezekiel J. Williams is an attorney with Faegre & Benson LLP in Denver, Colorado. He specializes in oil and gas, natural resources, public lands, environmental, and administrative law and litigation. His practice involves oil and gas and resource development on federal, Indian, and fee lands, federal land use planning, environmental law, mineral royalties, and litigation over operating, development, gas gathering, oil and gas leases, and other agreements. Zeke has litigated numerous disputes involving the National Environmental Policy Act, Federal Land Policy Management Act, National Forest Management Act, Mineral Leasing Act, Endangered Species Act, National Historic Preservation Act, Clean Water Act, and other federal statutes. His practice also involves advising companies, trade associations, and other entities on participating strategically in the preparation of NEPA documents, federal land use plans, and environmental permits that will govern their future actions.

Zeke is an adjunct professor of Natural Resources and Environmental Law at the University of Denver College of Law. He graduated in 1994 from the University of Denver College of Law where he was the Articles Editor of the Law Review, and has an undergraduate degree from Montana State University. Following law school, Zeke clerked for the Honorable Bobby R. Baldock of the United States Court of Appeals for the Tenth Circuit.

Table of Contents

I. Introduction

II. Role of the Proponent in the NEPA Process

A. Overview

B. Proposed Action

C. Purpose & Need

D. Alternatives

E. Comments

F. Responses to Comments

G. Role of the Project Proponent in Providing Information to the Agency and Building the Administrative Record

H. The Federal Advisory Committee Act

III. Third Party NEPA Contracts

A. Overview

B. Selection of the Contractor

C. Conflicts Of Interest

IV. Role of the Project Proponent in NEPA Litigation

A. The Department of Justice Defends the Agency

B. Participation in NEPA Litigation as Amicus Curiae

C. Intervention in NEPA Litigation Under Fed.R.Civ.P.2 4

1. Intervention Standard Under Fed.R.Civ.P.2 4

2. Obstacles to Intervention in NEPA Litigation

V. Conclusion

I. INTRODUCTION

The statutory trigger for preparation of an environmental impact statement ("EIS") or environmental assessment ("EA") under the National Environmental Policy Act ("NEPA")¹ is "major federal action."² Neither the statute nor the implementing regulations promulgated by the Council on Environmental Quality ("CEQ") distinguish much between federal actions that are initially proposed by a federal agency and federal actions that are proposed by a private non-governmental entity.³ Of course, many federal actions are initially proposed by private applicants rather than federal agencies. In the natural resources development context, private entities may require federal permits, decisions, or authorizations that amount to "major federal action" subject to NEPA.

There are numerous examples: federal oil and gas lease sales,⁴ Bureau of Land Management ("BLM") decisions approving applications for permits to drill ("APDs")⁵ or mining plans of operations,⁶ ski area expansions on lands managed by the United States Forest Service ("Forest Service"),⁷ timber sales on federal lands,⁸ and amendments or revisions to BLM

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or Forest Service land use plans.⁹ This list is by no means exhaustive, and additional examples of federal actions commonly proposed by private entities are set forth in the margin.¹⁰

A number of questions may arise where a private entity -- described in this paper as the "proponent" or "applicant" -- proposes a federal action subject to NEPA. What exactly is the proponent's role? How does the action advanced by the proponent translate into the agency's proposed action? What is the relationship between the proponent's objectives and the agency's purpose and need statement in the NEPA document? What kind of information can the proponent share with the agency? Can it respond to comments from third parties? How can the proponent fund the preparation of the EIS or EA by a consultant for use by the agency? Under what circumstances do conflicts of interest arise?

What if the EIS or EA is challenged in court by a third party? What options does the proponent have? The proponent has a unique and concrete interest in such litigation that is not shared by the agency or the public. The proponent's development objectives may even be the real target of NEPA litigation even though the proponent is neither named as a defendant nor itself capable of preparing additional NEPA analysis.¹¹

This paper identifies the role of the project proponent in the NEPA process. It assumes a basic familiarity with NEPA and provides an overview of issues that arise when the federal action analyzed is proposed in whole or in part by a private entity. The objective is to identify the "rules of the road" (to the extent that they exist) based on NEPA, CEQ regulations or policies, agency practice, and judicial opinions. Part II addresses the proponent's place in the NEPA process. Part III examines issues that arise when a consultant funded by the proponent prepares a NEPA document for the agency, and Part IV identifies the proponent's options in litigation challenging an EIS or EA.

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II. ROLE OF THE PROPONENT IN THE NEPA PROCESS

A. Overview

No single provision of NEPA or the CEQ regulations comprehensively addresses the proponent's role. The proponent's place in the process is referenced in numerous CEQ regulations which together demonstrate that the proponent has all the participation rights of the public, and more. For example, as discussed in Parts II and III of this paper, the proponent is allowed to take part in early planning with the agency,¹² draft its proposal for submission to the agency,¹³ recommend that the agency select a specific contractor to prepare the environmental analysis and then fund the work by the contractor chosen by the agency,¹⁴ suggest time limits for the agency's analysis,¹⁵ work with the agency to prepare project proposals and other information,¹⁶ provide comments to the agency,¹⁷ and generally share information with the agency in an open fashion¹⁸ so as to further NEPA's goal of "excellent action" based on "high quality" "scientific analysis, expert agency comments, and public scrutiny."¹⁹

B. Proposed Action

Together with the no action alternative and any other alternatives, the proposed action is "the heart of the environmental impact statement."²⁰ The CEQ definition of "proposal"²¹ and regulatory references to the "proposed action"²² do not distinguish between proposals initiated by a private entity and proposals initiated by a federal agency. Where a private entity proposes federal action, however, the proposed action is usually the proposal submitted by that applicant.²³

The proponent of a major federal action has the advantage of drafting its proposal. It should do so carefully. The proponent should: fully describe the action in detail; include pictures, charts, and technical information; identify foreseeable direct and indirect environmental

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effects; and explain whether environmental effects will be minimized or avoided through permitting, mitigation, and reclamation.²⁴ The proponent may want to incorporate voluntary mitigation into its proposal, so as to minimize or avoid adverse environmental effects or controversy.

The proponent should identify its objectives and goals, and the degree to which they are congruent with the agency's statutory and regulatory mission, policies, and objectives identified in other applicable materials, such as federal land use plans. By submitting a robust proposal, the proponent can help the agency spot significant issues and minimize insignificant ones, certainly one of NEPA's aims.²⁵ Further, as explained below, goals identified by the proponent may help the agency draft its purpose and need statement and identify reasonable alternatives to the proposed action.

C. Purpose & Need

The purpose and need section in an EIS or EA is a brief statement of "the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action."²⁶ It is simply the agency's goals or objectives in conducting the NEPA process.²⁷

The purpose and need statement is a critical -- and often overlooked -- section of an EIS or EA. Although the statement may be short, it defines the range of reasonable alternatives.²⁸ Alternatives that would accomplish the objectives in the agency's purpose and need statement are deemed reasonable.²⁹ "Alternatives that do not accomplish the purpose of an action are not reasonable and need not be studied in detail."³⁰ And an agency is not required to analyze alternatives that are remote, speculative, impractical, or ineffective at achieving

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the stated goals.³¹ In this manner, the purpose and need statement shapes the scope and structure of the environmental analysis.

The purpose and need statement sets forth the agency's objectives. How does it relate to the proponent's goals in requesting the underlying federal action? Several Courts of Appeals have ruled that, subject to a reasonableness test, the agency may take the proponent's goals into account in identifying the agency's objectives.³² Of course, an agency's purpose and need statement cannot be defined so narrowly as to preclude consideration of reasonable alternatives to the proposed action.³³ However, so long as it is reasonable, the agency may incorporate the proponent's objectives into its purpose and need statement, thereby using the proponent's goals to help define the range of alternatives. The Tenth Circuit has ruled, for example, that where "the action...