Chapter 8 The Continuing Importance of Mitigation Measures
| Jurisdiction | United States |
BROOKE M. MARCUS is a natural resources lawyer focused on assisting the renewable energy sector with maintaining compliance with environmental laws. She is go-to counsel for matters involving the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), Clean Water Act (CWA) the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Brooke counsels some of the nation's largest wind, solar and storage energy companies, electric generation and transmission companies, and investment companies on policy-level and project-specific issues arising under ESA, BGEPA, MBTA, CWA and NEPA. Brooke assists wind, solar, storage, and transmission line project developers with federal, state and local environmental and land use compliance strategies. She currently assists project proponents in the development of dozens of Habitat Conservation Plans (HCPs) and BGEPA permits, and ESA, BGEPA, NEPA, and CWA compliance strategies within every region of the U.S. Fish and Wildlife Service. Brooke also advises clients on policy-level issues related to the ESA, BGEPA, MBTA and NEPA and often represents her clients in Washington D.C. on related policy issues. Brooke regularly provides natural resources and environmental support for renewable project financing and advises investors and power purchasers on federal wildlife and other environmental issues for potential renewable acquisitions. She also serves as consulting counsel for natural resource litigation. She has advised clients on issues related to compliance with state and local environmental and land use regulations. She has worked extensively on mitigation transactions and negotiated and developed the first programmatic species conservation bank in the country on behalf of the lesser prairie chicken. Brooke speaks and teaches on ESA, MBTA, BGEPA, NEPA and CWA issues in many different industry forums across the nation. She has spoken at the American CleanPower Association's annual environmental and siting conference on many occasions since 2014. From 2014-2017, she has served as vice chair of the Endangered Species Committee newsletter for the ABA Section of Environment, Energy and Resources. Brooke co-chairs CLE International's Annual MBTA & BGEPA Conference. Brooke has presented at the University of Texas Renewable Energy Law Conference and served on the Planning Committee. Each year she regularly guest lectures at the University of Texas at Austin School of Law on federal wildlife risk and renewable energy development and teaches several courses each year for EUCI.
KRISTEN GOLAN is a permit manager with over twenty years' experience in the renewable energy field. As the Director of Permitting and Environmental Affairs for Avangrid Renewables, she has managed the permit strategy, creation, and implementation for development, construction, and operational projects within the United States. Her permitting ranges from local and state use permits from New Hampshire to California to federal permits from the Bureau of Lands Management, United States Forest Service, and the United States Fish and Wildlife Service. Federal National Environmental Policy Act (NEPA) and state environmental policy reviews are some of her favorite projects.
Throughout its procedural history, mitigation under the National Environmental Policy Act (NEPA)1 has been an inconsistent wild card in the environmental review process. The common refrain when discussing the NEPA is that it is a procedural statute, not a substantive statute.2 Despite this characterization, substantive mitigation commitments often play a significant role in NEPA analyses for project-specific and programmatic NEPA analyses. The statute, regulations and guidance leave ample room for interpretation and misunderstandings between the agencies, regulated community, and interested stakeholders and has left agencies in a difficult position fearing legal action on NEPA decisions. This paper examines the role of mitigation in NEPA, how NEPA regulations (including recent regulatory amendments and guidance) address mitigation, how courts have evaluated mitigation in the NEPA context, and some examples of how mitigation factors into large-scale programs for renewable energy.
I. Pre-2020 legal basis and history
The NEPA statutory language does not use or define the term 'mitigation.' The original NEPA implementing regulations, promulgated in 1978, defined mitigation to include:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment. (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. (e) Compensating for the impact by replacing or providing substitute resources or environments.3
The original NEPA implementing regulations generally contemplated the incorporation of mitigation measures into the NEPA analysis. For example, the regulations require that a Record of Decision (ROD) include a summary monitoring and enforcement program for any adopted mitigation measures.4 The original regulations also require that the lead agency include conditions to fund any adopted mitigation measures in the related grants, permits, or other approvals.5
Until the 2020 regulatory amendments to the NEPA implementing regulations,6 mitigation under NEPA has been largely understood through Council on Environmental Quality (CEQ) guidance and case law. Until 2011, instruction on how to incorporate mitigation into NEPA analyses was
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contained in CEQ's "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations" guidance (40 Questions Guidance).7 The 40 Questions Guidance directed agencies to identify all available "relevant, reasonable mitigation measures" even if such measures were outside of the jurisdiction of the lead agency or the cooperating agencies.8 The 40 Questions Guidance also stated that a NEPA analysis relying on the implementation of mitigation measures in its assessment should include a discussion of the probability that the mitigation measures would be implemented, adopted or enforced.9 The 40 Questions Guidance specified that a ROD and Environmental Impact Statements (EIS) must describe mitigation measures considered, as well as the monitoring and enforcement of those measures. The ROD must describe the mitigation and monitoring measures adopted in "sufficient detail to constitute an enforcement commitment" or incorporate the EIS provisions that rise to this level of commitment.10 Notably, the 40 Questions Guidance expressly rejected using mitigation measures to reach a finding of no significant impact (FONSI), stating that agencies "should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement."11 As described in greater detail below, courts have held that using mitigation to avoid an EIS is allowed, squarely disagreeing with the CEQ's position in its 40 Questions Guidance.12
A. CEQ Mitigation Guidance
In 2011, the CEQ published its "Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact" (Mitigation Guidance).13 The Mitigation Guidance explains the requirements of NEPA and the original implementing regulations, describes CEQ policies, and recommends procedures agencies should use to comply with these requirements when they establish mitigation planning and implementation procedures.14 The Mitigation Guidance also describes the importance of mitigation, how agencies should ensure that any adopted mitigation commitments will be implemented, how to monitor the effectiveness of mitigation commitments, how to remedy ineffective or non-implemented mitigation, and how to involve the public in mitigation planning.
Some notable instructions include:
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• Agencies should not commit to mitigation measures unless they have sufficient legal authority to ensure performance of the mitigation.15
• Agencies "should establish implementation plans based on the importance of the project and its projected effects."16
• Agencies should not commit to mitigation measures necessary for a FONSI if it is not "reasonable to foresee the availability of sufficient resources to perform or ensure the performance of mitigation."17
• Agencies "should create new, or strengthen existing, monitoring to ensure that mitigation commitments are implemented."18
• Agencies should use effective monitoring to learn if the mitigation is working.19
• Agencies should encourage public participation by proactively disclosing mitigation and monitoring commitments, as well as providing access to these commitments where possible.20
• Should mitigation not be undertaken or the mitigation fails to mitigate the environmental effects as expected, then the agency should consider whether supplemental NEPA analysis is warranted.21
The Mitigation Guidance also specifically amended and supplemented CEQ's 40 Questions Guidance, acknowledging that the use of a mitigated FONSI is appropriate to avoid an EIS where the NEPA process results in enforceable measures.22 CEQ instructs agencies to identify mitigation commitments necessary to reduce impacts to a level that supports a mitigated FONSI. CEQ further instructs that that funding of mitigation commitments is critical, and that where necessary funding becomes unavailable, an agency should not move forward with the proposed action until the funding becomes available or until the lack of funding is appropriately assessed.23
B. Case Law Addressing Mitigation...
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