CHAPTER 7 ENERGY POLICY ACT OF 2005 PROVISIONS FOR EXPEDITING PERMITTING AND NEPA COMPLIANCE

• Jurisdiction: United States

The Energy Policy Act of 2005
(Oct 2005)
CHAPTER 7
ENERGY POLICY ACT OF 2005 PROVISIONS FOR EXPEDITING PERMITTING AND NEPA COMPLIANCE
Carolyn L. McIntosh
Patton Boggs
Denver, Colorado
Laura Lindley
Bjork Lindley Little PC
Denver, Colorado

CAROLYN L. McINTOSH

Carolyn McIntosh is a Partner in the Denver office of the national law firm, Patton Boggs LLP. Her practice focuses on complex environmental compliance, environmental and natural resources litigation, and environmental due diligence and permitting. She has extensive experience handling compliance and permitting matters, including NEPA review, air, water, solid and hazardous waste permitting for hard rock mining operations, oil and gas production, DOE facilities, industrial operations, transportation companies, and municipal entities. Ms. McIntosh has litigated or worked on administrative aspects of more than thirty Superfund Sites, including cost recovery, natural resource damages, remedy challenge and remedy implementation matters. Ms. McIntosh's current client base is predominantly private companies engaged in natural resources development or the transportation sector. She has represented the City and County of Denver, and the States of Colorado and Montana in major Superfund litigation and environmental compliance matters, including Lowry Landfill, the Denver Radium Sites, Uravan, and the ARCO Sites. Ms. McIntosh has also provided environmental risk management and compliance training for more than a decade at DOE complex facilities, the Colorado School of Mines, the University of Denver, and to the general public. Previously, Ms. McIntosh served as an assistant attorney general for the State of Colorado for Superfund and hazardous waste management and as a special assistant attorney general to the State of Montana, implementing its Superfund program. Ms. McIntosh has litigated cases involving the applicability of state hazardous waste management laws to the Rocky Mountain Arsenal, air quality regulatory requirements in Colorado, remediation at radioactive mill processing facilities, zoning land use, and the National Environmental Policy Act. Ms. McIntosh has also served on a number of local government boards and commissions, including 12 years on the Lafayette City Council, the last four years of which she served as the Mayor of Lafayette. Ms. McIntosh served for three years on the Boulder County Long Range Planning Commission, for four years she participated in the Urban Drainage and Flood Control District, and by appointment by Governor Owens, Ms. McIntosh served for two years as the Denver representative on the Colorado Water Conservation Board. Additionally, for 10 years Ms. McIntosh served on the Denver Regional Council of Governments Board, and served for four years on the Metro Mayor's Council. She was also a founding member of the Northwest Parkway Public Highway Authority. Ms. McIntosh continues to work with Colorado local governments on planning, transportation, and appropriations issues.

LAURA LINDLEY

Laura Lindley came West to earn her law degree from the University of Denver (1980, Order of St. Ives) after earning her B.S. degree from Louisiana State University and working as an abstractor for a couple of years in south Louisiana. She was affiliated with the Denver firm of Poulson, Odell & Peterson until 1992, and since then has been a shareholder in Bjork Lindley Little PC, emphasizing oil and gas law and public land issues. Laura is a past president of the Rocky Mountain Mineral Law Foundation and continues to participate in a number of Foundation efforts, including serving as a Trustee, writing papers for annual and special institutes, teaching at the Federal Oil and Gas Leasing Short Course, and reporting on federal developments for the Mineral Law Newsletter. She has also written an article on the history of the Mineral Leasing Act for the ABA's Natural Resources & Environment, and contributed a chapter to The NEPA Litigation Guide published by the ABA.

I. Introduction

A. Federal lands comprise about 29% or 654 million acres of the 2.27 billion acres within the United States. Forest Service -- about 193 million acres; Bureau of Land Management (BLM) -- 262 million acres and 700 million acres of subsurface minerals. ¹

B. NEPA was signed into law on January 1, 1970 by President Richard M. Nixon. The law is concise (particularly relative to subsequently adopted environmental laws), merely three pages long. It has been characterized as "our basic national charter for protection of the environment." ²

C. Yet, NEPA has been the subject of increasing criticism ³ and has been the foundation for an estimated 1,500 lawsuits. Indeed, on the occasion of NEPA's thirty-fifth anniversary, the Environmental Law Institute (ELI) examined current trends in NEPA caselaw and found, inter alia, that the rate of new NEPA litigation has increased significantly in the last several years. ⁴

D. The ELI study evaluated all NEPA cases and found: "there had been a general declining trend in the number of NEPA lawsuits filed annually, with a historical average of 108 filings per year between 1974 and 1997. However, the number of filed NEPA cases spiked to 137 in 2001 and 150 in 2002." ⁵

FIGURE 1: CEQ Data on NEPA Filings, 1974-2002 -- Number of NEPA Lawsuits Filed Annually

E. Against this increase in cases, we examined a number of holdings rendered in the context of challenges to federal agency land use planning documents and/or procedures and also found, qualitatively, that the speed of filing litigation following a decision, the number of issues raised, and the complexity of the cases, all appear to be increasing. ⁶

F. In contrast to traditional NEPA challenges, we found both qualitative and quantitative differences.

1. First, we noted that the land use challenge cases are filed quickly after the initial decision, the issues raised are more numerous and more complex, procedurally and substantively.

2. In addition, in view of the two-step programmatic land planning and site-specific project approval processes, the courts have upheld broader, less detailed NEPA analyses at the programmatic stage and have found generally, that programmatic challenges to substantive (as opposed to procedural statutory obligations) are not ripe for review, particularly when the challenge invites the court to decide a matter of policy, which the courts routinely leave to the land planning agencies.

3. Lastly, the requirements for cumulative impacts analysis will be satisfied by including review of past, present and reasonably foreseeable site-specific projects. At the site-specific stage, tiering to programmatic review documents is very common.

G. The last decade has seen a resurgence of litigation challenging federal land use and land planning decisions. Recent congressional and administrative actions evidence a concerted effort by the executive and legislative branches of the United States to reduce litigation and streamline NEPA land planning procedures. Those actions may set a trend toward practical land use planning and away from policy disputes and litigation.

H. This paper examines the specific actions taken by Congress in the Energy Policy Act of 2005 to streamline and reduce the litigation risks of NEPA compliance.

II. Categorical Exclusions from NEPA Review

A. CEQ Regulations. The Council on Environmental Quality (CEQ) recognizes that certain categories of actions do not individually or cumulatively have a significant effect on the human environment. ⁷ Those types or categories of actions should be categorically excluded from NEPA review.

B. The CEQ regulations require that federal agencies adopt procedures identifying categorical exclusions and both the BLM (516 Department Manual 11.5) and the Forest Service (Forest Service Handbook 1909.15, ch. 30) have done so. The...