Environmental Assessments: Guidance on Best Practice Principles

• Date: 01 February 2015
• Author: Ron Deverman, P.E. Hudson, Karen Johnson, Ronald E. Lamb, Daniel R. Mandelker, Stephen Pyle, and Dr. Robert Senner

45 ELR 10142 ENVIRONMENTAL LAW REPORTER 2-2015

Environmental

Assessments:

Guidance on

Best Practice

Principles

by Ron Deverman, P.E. Hudson,

Karen Johnson, Ronald E. Lamb,

Daniel R. Mandelker, Stephen Pyle,

and Dr. Robert Senner

Ron Deverman is Associate Vice-President of HNTB Corp.,

past President of NAEP, and a 30-year NEPA practitioner in

Chicago. P.E. Hudson, Esq., is Counsel and Environmental Law

and Planning Training Director, Oce of General Counsel,

U.S. Department of the Navy, Ventura, CA. Karen Johnson

has 27 years’ experience in CEP-Documentation in Wylie, TX.

Ronald E. Lamb CEP is chair of the NAEP NEPA Practice in

Washington, D.C. Daniel R. Mandelker is Stamper Professor of

Law, Washington University, St. Louis, MO. Stephen Pyle, Esq.,

is Project Manager at HDR Environmental, Operations and

Construction, Inc., in Spring Branch, TX. Dr. Robert Senner

is sole proprietor of Robert Senner Consulting in Seattle.

Summary

In response to a 2011 solicitation by the Council on

Environmental Quality, the National Association of

Environmental Professionals developed best practice

principles (BPPs) for preparing eective environmen-

tal assessments (EAs) under NEPA. After extensive

survey research and literature review, the Associa-

tion’s report identied seven Priority One BPPs as

focus areas for improving EAs. ese proposed BPPs

are intended to be applicable across all federal agen-

cies that prepare EAs and are designed to improve the

quality, usefulness, and timeliness of EAs while reduc-

ing the risk of challenge.

I. Introduction

A. Background

e Council on Environmental Quality (CEQ) released

a solicitation in March 2011 inviting federal agencies and

environmental professionals to nominate pilot projects as

best examples for more ecient and eective implementa-

tion of the National Environmental Policy Act (NEPA),1

to improve the quality and transparency of agency deci-

sionmaking. e National Association of Environmental

Professionals (NA EP) responded to the CEQ solicitation

with a proposal to develop experience-based best practice

principles (BPPs) for preparing eective environmental

assessments (EAs). e NAEP proposal was one of ve

pilot projects selected by CEQ.2

e rst stage of the pilot project focused on design of

the questionnaire that would be distributed to a wide range

of environmental professionals, and review of the assem-

bled survey responses. e steering committee presented

an overview of the pilot project to the NAEP membership

at a 2013 conference, focusing on the methodology and

results of the survey. e steering committee developed the

nal BPPs for EAs after feedback from the conference and

CEQ. In the last phase of the pilot project, the NAEP team

rened and consolidated the BPPs and conducted quality

reviews, including review and input by CEQ.

is Article focuses on the seven BPPs identied as most

important in advancing the eective and ecient develop-

ment of quality EAs. ese Priority One BPPs are:

• Description of purpose and need

• Description of proposed action and range of

alternatives

• Content

• Cumulative eects assessment and management

• Regulatory consultation and coordination

• Determination of environmental impact signicance

• Extent of public involvement

1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

2. See Press Release, White House, CEQ Announces Projects to Improve

Eciency of Federal Environmental Reviews rough Creation of Best

Practice Principles, Use of Eective IT Tool (Oct. 19, 2011), availa ble

at http://www.whitehouse.gov/administration/eop/ceq/Press_Releases/

NEPA/October_19_2011.

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       

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alphabetical order. Any v iews attributab le to co-author P.E.





Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

2-2015 NEWS & ANALYSIS 45 ELR 10143

e NAEP presented this guidance to CEQ with the rec-

ommendation that the report be used as a resource material

by the federal agencies as they prepare EAs. NAEP further

recommended that individual agencies consider adding

agency-specic BPPs to the seven identied here.

B. Practitioner Knowledge and Development of BPPs

e pilot project hypothesis stated that the assimilation of

practitioner knowledge relating to eective BPPs for E As

would provide the basis for improvements in preparing

EAs. A six-person steering committee completed the rst

stage of the pilot project by formulating the survey ques-

tions, distributing the survey questions, and nally com-

piling the survey questions and recommending BPPs.3

e steering committee identied two groups of selected

recipients of the survey questionnaire. e rst group

included the professional membership of the NAEP; the

second group included agency NEPA liaisons and other

NEPA collaborators and compliance professionals com-

piled by CEQ. e NAEP membership included 811 pro-

fessionals; the CEQ group consisted of 250 professionals.

Accordingly, the survey questionnaire was sent to 1,061

persons in February 2012. Responses were received over a

22-day period ending in March 2012.

Responding to this survey questionnaire was voluntary

for persons in both the NAEP and CEQ participant groups.

Both groups had a participation rate of about 30% (for the

NAEP group, 240 of 811, or 29.6%; for the CEQ group, 76

of 250, or 30.4%). e questionnaire consisted of 23 ques-

tions composed of a variety of styles and requested inputs.

More specically, groups of questions related to respondent

experience in NEPA compliance documentation, current

inadequacies and adequacies in EAs, selected topical fea-

tures for inclusion in EAs, and potential implementation

of BPPs for EA s. Respondents made 1,689 comments in

addition to the standard responses to the topical questions.

e sur vey responses represented approximately 5,000

person-years in experience, established by considering the

midpoint between the four experience ranges (1.5, 6.5, 15,

and 25 years) of the respondents and multiplying them by

the response counts. e steering committee members,

representing about 150 person-years in NEPA-related expe-

rience, aided in the nal ndings.

In addition to the questionnaire responses, the steering

committee considered statutes, regulations, and case law

in the delineation of inadequacies and adequacies of EAs

to establish the initial categories of delineated BPPs. e

steering committee also reviewed certain federal agency

guidance and peer-reviewed literature. e steering com-

3. We wish to express our appreciation for the signicant planning and work

completed by Dr. Larry Canter, David Keys, CEP, and Paul Looney, CEP.

mittee presented their ndings in the nal report in July

2013, documenting the design and development process of

the questionnaire, the survey results, the methods and cri-

teria used to develop the BPP topics, and 15 initial Priority

One BPPs. After discussing the nal report with CEQ, the

NAEP organized a second seven-person experienced team

to prepare the guidance for the nal BPPs. e authors of

this Article comprised the second team.

C. Selecting the BPPs

As previously noted, the overarching criterion used to iden-

tify the seven Priority One BPPs for EAs was to base their

selection and development on the knowledge and advice of

NEPA practitioners, specically the 318 NEPA profession-

als who responded to the electronic survey. In addition, the

team applied two specic criteria to identify and prioritize

potential BPP topics: (1)the level of emphasis and concern

that the respondents devoted to a topic; and (2)the extent

to which a potential BPP topic was already addressed by

CEQ NEPA regulations and informed by state-level guid-

ance, case law, academic research, and other sources. In

the rst stage of the pilot project, the steering committee

applied these two criteria quantitatively through a ve-

step, systematic, tabulated selection process to produce an

initial 15 Priority OneBPP topics. e Article describes

this process in detail. e key features were:

Step 1: Develop topica l categories from the responses

to survey question 7, which asked NEPA practitioners

to identify feature s ty pically associated with adequate

EAs. e respondentsidentied 535 positivefeatures,

which the steering committee collated into 23 distinct

topical categories.

Step 2: Compare the 23 topical categories with CEQ

NEPA regulations, case law involving or applicable to EAs,

relevant peer-reviewed research articles, and other use-

ful information sources to delineate those topics already

receiving high levels of emphasis as opposed to other top-

ics in need of increased attention and guidance. is pro-

cess yielded 18 potential BPP topics representative of those

practice areas not adequately covered by regulations, case

law, or other guidance.

Step 3: Incorporate the results from survey question 6.

is question presented a list of nine inadequacies that

have historically been identied in litigation and public

comments and in criticisms of speci c EA s, and asked

the respondents to prioritize them. Each of thepriori-

tized EA inadequacies was matched with one or more of

the 18 potential BPP topics derived in Step 2, thus cre-

ating an initial priority order based on rankings by the

survey respondents.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.