CHAPTER 9 HAVING YOUR VOICE HEARD: HOW TO EFFECTIVELY GET THE AGENCY'S ATTENTION IN A NEPA COMMENT TO AFFECT THE FINAL DECISION
| Jurisdiction | United States |
HAVING YOUR VOICE HEARD: HOW TO EFFECTIVELY GET THE AGENCY'S ATTENTION IN A NEPA COMMENT TO AFFECT THE FINAL DECISION
Co-Director, Center for Law and Energy Resources in the Rockies
Assistant Professor, Haub School of Environment and Natural Resources, University of Wyoming College of Law
Laramie, WY
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TEMPLE LEIGH STOELLINGER is an assistant professor at the University of Wyoming. She has a dual appointment with the Haub School of Environment and Natural Resources and the College of Law where she is the Co-Director of the Center for Law and Energy Resources in the Rockies and Faculty Supervisor of the Energy, Environment and Natural Resources Law Clinic. Before joining the University of Wyoming, Temple most recently served as the natural resource attorney for the Wyoming County Commissioners Association (WCCA). Through this role Temple provided legal advice and engaged in litigation on issues pertaining to energy and natural resource law of behalf of the boards of county commissioner in Wyoming's 23 counties. Prior to working for the WCCA, Temple worked in the Projects and Technology Legal Department for Shell, International B.V. at their world headquarters in the Netherlands. From 2004-2010 Temple served as a natural resource analyst and advisor to Wyoming Governor Dave Freudenthal, where she had the opportunity to work on a wide variety of energy and natural resource issues of statewide, regional, and national significance.
I. Introduction
Public participation in federal agency National Environmental Policy Act (NEPA) processes presents a unique opportunity for engagement in federal agency decision making on projects that have the potential to affect the environment. It presents an opportunity for public transparency of proposed federal agency actions and the environmental impacts of those actions. More importantly, it presents an opportunity for the public to assist the federal agencies in crafting better, more informed, decisions. While public participation was not specifically mentioned as a goal of NEPA, federal courts have regularly held that public comment and public involvement lies at the center of NEPA's procedural requirements and is critical to NEPA's function.1
However, engaging in the NEPA process can be a time-consuming endeavor. If you undertake that endeavor, you want to make sure your voice is being heard and your comments are affecting positive change. This article is offered to highlight the legal requirements for public participation and comment throughout the NEPA process and offer suggestions on how to have your voice heard by offering comments that effectively get the agency's attention and influence a final decision.
II. The National Environmental Policy Act and the CEQ NEPA Regulations
The National Environmental Policy Act of 1969 (NEPA), as amended declares "that it is the continuing policy of the federal government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, 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 Americans."2 To implement this policy, NEPA requires that all federal agencies assess the environmental effects of their proposed actions before making a decision.3
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It is frequently stated that the major purposes of NEPA include: the disclosure of environmental effects, informed federal agency decisionmaking, public participation in decisionmaking, and transparency in agency decisionmaking. Despite its inclusion in the often-recited list of NEPA purposes, public participation in the NEPA process is not included in the text of the Act itself. The closest the Act gets to encouraging public participation is to require that "statements and the comments and views of the appropriate federal, state, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public"4 and to "make available to States, counties, municipalities, institutes, and individuals, advice and information useful in restoring, maintaining and enhancing the quality of the environment."5 While this language does suggest one of NEPA's purposes is transparency in agency decisionmaking, it does not suggest a goal of public participation in the NEPA process.
Instead, to find language discussing public participation in the NEPA process, we must turn to the Council of Environmental Quality (CEQ) NEPA regulations. CEQ, established through NEPA,6 was directed in 1977 by President Jimmy Carter to promulgate NEPA implementing regulations, binding on all agencies.7 Those regulations, found at 40 C.F.R. §§ 1500-1508, were promulgated to inform federal agencies of what they must do to comply with the NEPA procedures.8
In short, the CEQ NEPA regulations tell federal agencies what they must do to comply with the procedures and achieve the goals of NEPA.9 Big picture, those procedures require federal agencies to "identify and assess reasonable alternatives to a proposed agency action that will avoid or minimize adverse effects of these action upon the quality of the human environment."10 Narrowing down, the CEQ regulations provide specific directions on when and
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how to prepare an environmental assessment11 and when and how to prepare an environmental impact statement.12
The first reference to public involvement in the CEQ NEPA regulations is found in the purpose statement, which states that "[a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."13 Public involvement is also referenced in the next section of the regulations, the policy section which directs federal agencies to "[e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment."14 As the regulations narrow to include specific procedures to implement NEPA, so do the directions on how to involve the public.
Despite the limited reference to public participation and public comment in NEPA itself, thanks to the CEQ regulations, courts have recognized that NEPA's statutory purposes are best accomplished when individuals and organizations provide comments to the federal agencies preparing the NEPA documents.15
III. Comment Opportunities Provided During a NEPA Environmental Impact Statement
The CEQ NEPA regulations make a distinction between environmental impact statements, environmental assessments and categorical exclusions. Environmental impact statements are detailed written statements, prepared when a federal agency action will have a significant effect on the human environment.16 Environmental assessments are concise documents, prepared for projects where there is not a finding of significant effect.17 Categorical exclusions are categories of actions that do not individually or cumulatively have a significant effect on the human environment.18 The CEQ NEPA regulations do not require public involvement in the preparation of a categorical exclusions. The degree of public participation in an environmental assessment process is less than for an EIS--no scoping or public comment period are required.19
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Focusing therefore on environmental impact statements, their preparation is broken down into a "systematic, interdisciplinary approach"20 that includes the following steps: scoping, draft environmental impact statement, final environmental impact statement, and record of decision. With regard to public involvement, the CEQ regulations provide general direction to federal agencies to: make diligent efforts to involve the public in preparing and implementing their NEPA procedure; to provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected; to hold public meetings whenever appropriate, to solicit appropriate information for the public, and to explain where interested persons can get information on a NEPA process.21
During the scoping and draft environmental impact statement steps, the CEQ regulations require that agencies invite public participation and solicit comments from other federal agencies, state and local agencies, Indian tribes, the project applicant (if any) and from the public.22 The regulations also provide that an agency "may" request additional comments on a final environmental impact statement before a decision is made.23
The CEQ regulations also direct federal departments and agencies to adopt internal procedures to supplement CEQ regulations by offering additional implementing procedures.24 Department and agency-specific NEPA procedures are intended to account for differences in agencies' NEPA processes.25 The section below discusses the NEPA process according to the CEQ regulations but does not provide information on the individual department or agency-specific regulations.
a. Scoping
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The...
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