Chapter 7A Categorical Exclusions: Use and Abuse

• Jurisdiction: United States

Chapter 7A Categorical Exclusions: Use and Abuse
Sharon Buccino Natural Resources Defense Council Washington, D.C.

SHARON BUCCINO is originally from Central Florida where she grew up surrounded by orange trees, Sharon Buccino serves as a Senior Attorney at the Natural Resources Defense Council. Her current work focuses on public land management, energy policy and government transparency. Ms. Buccino advocates in court, before federal agencies and Congress. She has worked to implement effective environmental review and public participation for various infrastructure projects including pipelines and transmission. Prior to joining NRDC in 1993, Ms. Buccino practiced environmental and administrative law with a private law firm in Washington, DC, and worked for the Alaska Supreme Court. She is a graduate of Yale University and Stanford Law School. In addition to her work at NRDC, Ms. Buccino currently serves as an adjunct professor at the College of Law at the University of Wyoming.

The views expressed herein are the personal opinions of the author and do not represent official positions of the Natural Resources Defense Council

Who wouldn't like NEPA? Signed into law in 1970 by President Nixon, the National Environmental Policy Act (NEPA) directs the federal government "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of America."¹ NEPA provides a vision of a future that everyone can get excited about. It is a future built on respect - for animals, for land, and for each other.

NEPA offers a key to a sustainable and prosperous future. The Act demands integration, information and inclusion. Before taking major actions, NEPA requires federal agencies to analyze the environmental impacts of a proposed action, consider alternatives to the proposed action and include the public in such analysis. Today's circumstances demand what NEPA provides even more than conditions 50 years ago.

Yet, NEPA only delivers on its promise if it works. Deciding what types of actions deserve finite staff and funds to provide detailed environmental analysis is critical to making NEPA work. Categorical exclusions can help agencies make such determinations. By using a categorical exclusion, a federal agency can avoid completing an environmental assessment of an environmental impact statement. When used appropriately, categorical exclusions can focus scarce agency resources on proposed actions that may cause significant harm. When improperly used, however, categorical exclusions trigger forceful and costly opposition.

This paper discusses the overall legal framework authorizing categorical exclusions under NEPA. It explains how agencies can lawfully create categorical exclusions. It explains how agencies can appropriately apply a categorical exclusion to specific actions. Next, the paper discusses abuse of categorical exclusions. The article concludes by looking forward - it offers specific recommendations regarding how categorical exclusions can deliver efficient and effective environmental review.

I. Overall Legal Framework

NEPA does not provide for categorical exclusions. Nothing in the statute's text provides an exemption from the requirement to prepare a "detailed statement . . . on the environmental

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impact of the proposed action."² Created by NEPA, the Council on Environmental Quality issued regulations to implement the statute. CEQ's regulations provide for categorical exclusions. CEQ's current regulations define a categorical exclusion as "a category of actions that [an] agency has determined . . . normally do not have a significant effect on the human environment."³

Agencies shall provide categorical exclusions in their NEPA procedures.⁴ Actions designated as categorical exclusions "do not require preparation of an environmental assessment or environmental impact statement."⁵

CEQ developed guidance for federal departments and agencies to assist them in using categorical exclusions in a way that complies with NEPA's statutory language, CEQ's regulations implementing that language and applicable case law.⁶ The guidance provides invaluable information regarding: (1) how to establish or revise a categorical exclusion; (2) how to use public involvement and documentation to help define and substantiate a proposed categorical exclusion; (3) how to apply an established categorical exclusion, and determine when to prepare documentation and involve the public; and (4) how to conduct periodic reviews of categorical exclusions to assure their continued appropriate use and usefulness.⁷

II. How to Create a Categorical Exclusion

Agencies generally create or revise categorical exclusions through notice and comment rulemaking.⁸ The agency must provide evidence to support its conclusion that the proposed activity does not individually or cumulatively have a significant effect on the human

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environment.⁹ Such evidence can take various forms including: (1) documentation of previous actions of a similar sort that did not have significant environmental effects; (2) impact demonstration projects; (3) information from professional staff, expert opinions, and scientific analyses; and (4) another agency's experience with a comparable categorical exclusion.¹⁰ Without such evidence, an agency lacks the administrative record to support a categorical exclusion under the Administrative Procedure Act's requirements for reasoned decision-making.¹¹

CEQ's CE guidance requires agencies to provide the public with notice and the opportunity to comment.¹² Such public engagement is particularly important because once a categorical exclusion has been established, federal agencies do not routinely notify the public when it is applied to a specific action.¹³ In addition, agencies should consult with CEQ before finalizing proposed categorical exclusions.¹⁴

III. How to Use a Categorical Exclusion

Once a categorical exclusion is established pursuant to agency regulations, the agency may apply the CE to specific actions without further documentation or public engagement.¹⁵ CEQ's guidance highlights circumstances where some documentation may be necessary. Such circumstances include where extraordinary circumstances exist.¹⁶ Documentation may also be useful where strong opposition to the proposed action exists.¹⁷

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Under some circumstances, agencies have run into problems using a CE to avoid review of environmental impacts of policy documents. In a recent case, a federal court found reliance on a categorical exclusion to avoid review of the National Park Service's policy directive and final rule allowing electric bikes (e-bikes) in some areas to be arbitrary and capricious.¹⁸ At most, superintendents considered only the impacts of e-bike use on their individual park units, not any collective impact.¹⁹

IV. How Not to Use Categorical Exclusions

While appropriate use of categorical exclusions can accelerate permitting, misuse of categorical exclusions results in controversy and delay. Two types of CE abuse have triggered significant opposition. First, agencies run into problems when they attempt to exclude all agency actions under a categorical exclusion. Second, statutory CEs can lead to uninformed and destructive agency decisions.

A. Federal Communications Commission - Exception Swallows the Rule

The Federal Communications Commission (FCC) has consistently failed to take its NEPA responsibilities seriously. Unlike the Environmental Protection Agency or the Department of the Interior, the FCC may not consider its main mission to be an environmental one. The Commission is the "federal agency responsible for implementing and enforcing America's communications law and regulations."²⁰ It regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories.²¹

In enacting NEPA, Congress recognized that all federal agencies had environmental responsibilities. The Act recognizes the continuing responsibility of the entire federal government "to use all practicable means . . . to attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences."²² To sustain the environment and the natural systems upon which all life depends, all federal agencies must take into account the impact their actions have on the environment. NEPA requires that "all federal agencies of the Federal Government shall . . .

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include in every . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement" analyzing the impacts of and alternatives to the action.²³

The FCC does not appear to ever have prepared an Environmental Impact Statement (EIS). Searches of the internet and the FCC's Electronic Comment Filing System failed to produce any EIS issued by the FCC. The FCC has issued one Environmental Assessment - the Final Programmatic Environmental Assessment for the Antenna Structure Registration System²⁴ in response to a federal appellate court decision requiring it.²⁵

Instead, the FCC has categorically excluded all of its actions from NEPA review, identifying a few limited exceptions in its regulations. FCC regulations provide:

Commission actions not covered by § 1.1307(a) and (b) are deemed individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.²⁶

The exceptions include what have come to be known as extraordinary circumstances. These circumstances include the presence of endangered species, critical habitat, wilderness areas and historic properties.²⁷ In addition, the regulations require preparation of an environmental assessment if radiofrequency radiation from the proposed action will exceed limits set by the FCC...