A "full and fair" discussion of environmental impacts in NEPA EISs: the case for addressing the impact of substantive regulatory regimes.

• Author: Langberg, Sarah
• Position: National Environmental Policy Act of 1969, environmental impact statements

NOTE CONTENTS INTRODUCTION I. CURRENT PRACTICES AND PROBLEMS WITH THE STATUS QUO A. Background on NEPA B. Survey of How Agencies Address "Other Environmental Laws" in EISs C. Why Current Practice Is Problematic 1. NEPA's Purpose and Goals 2. CEQ Regulations 3. EPA Assessments of Agencies' Current Practice 4. Judicial Review of Agencies' Discussions of "Other Environmental Laws" II. PROPOSED CHANGES A. Proposed Changes to EIS Discussions of Substantive Laws 1. Examining How Substantive Changes Shape Project Impacts 2. Case Study: Big Stone II Power Plant 3. Case Study: Berths 136-147 Container Terminal Project 4. Case Study: Hoosier Heartland Highway Improvements B. Proposed Changes to EIS Discussions of Impacts Beyond Regulatory Limits 1. Pinpointing Impacts Beyond the Contours of Substantive Laws 2. Case Study: Kensington Mine and Impacts Beyond the EIS III. OBJECTIONS AND RESPONSES A. Anticipating the Regulatory Requirements of "Other Environmental Laws" 1. Case Study: Anticipating Industrial Waste Regulatory Requirements 2. Case Study: Anticipating CWA Regulatory Requirements B. Mitigating Increased EIS Costs with Permitting Synergies C. Articulating Agency Interpretations CONCLUSION INTRODUCTION

The National Environmental Policy Act (NEPA)--a chiefly procedural statute--requires federal agencies to examine "to the fullest extent possible" proposed major federal actions that will "significantly affect[] the quality of the human environment." (1) Environmental Impact Statements (EISs) are the tangible output of the NEPA examination process and are meant to provide, during project planning and before project implementation, a "full and fair discussion of significant environmental impacts" expected from the proposed project. (2)

But such a discussion, this Note argues, cannot be full and fair if agencies fail to "[r]igorously explore and objectively evaluate" (3) impacts that will be regulated under other environmental laws. A survey of forty EISs reveals that, in general, if a pollutant or impact is regulated under some substantive environmental law regime, then proponent agencies do not dedicate much time or space in their NEPA EISs to discussing how they will address that pollutant or impact when completing the project--save to say that they will comply with regulatory and permitting requirements. This practice allows NEPA EISs to defer some impact analyses from the planning phase to regulatory processes further down the road after plans have already been finalized.

This Note argues that the practice of deferring these assessments is wrong. If an EIS is to thoroughly assess a project's significant effects on the human environment as required by NEPA, then it cannot merely assume that other regulatory systems will address or allay project impacts. Rather, NEPA EISs should evaluate if--and importantly, how--the substantive regulatory regimes to which the project will be subject will circumscribe the project's environmental impacts. This information should be provided in EISs so that the public and coordinate agencies have an opportunity to assess and comment on the full scope of project impacts in accordance with NEPA's core purpose. (4) Though the EPA and some courts have advanced this approach when reviewing EISs that fail to discuss how the project will comply with other environmental laws, this Note makes the novel argument that all federal agencies should adopt this approach as standard practice during the initial EIS drafting stage. (5)

This argument proceeds from both legal and normative angles. The legal argument is based on the regulatory requirement for agencies to include robust impact discussions in EISs. (6) The normative argument proposes that such regulatory considerations be included in EISs because NEPA itself embodies the normative goal of ensuring that significant environmental impacts can be taken into account by decision makers and the broader public. (7) More comprehensive information better equips the public to challenge agency action, and this itself may lead to substantive change. (8) Moreover, better administrative procedures can facilitate better substantive project outcomes by forcing agencies to consider problems that they might not otherwise examine and to potentially pursue more environmentally conscious alternatives. (9)

This Note first introduces NEPA and the author's survey of current EIS discussions of substantive environmental laws. The survey reveals deficiencies in light of NEPA's goals and purposes, applicable regulations, EPA critiques, and judicial precedent. Second, the Note proposes changes to the current practice in line with relevant legal authority. This proposal--referred to herein as EIS Regulatory Review--argues that EIS authors should, as a matter of standard operating procedure, analyze how substantive regulatory regimes will shape and circumscribe project impacts. The Note also presents case studies to illustrate EIS Regulatory Review in practice. Finally, it offers and rebuts potential counterarguments to EIS Regulatory Review.

To note, the expanded regulatory discussion advocated herein does not apply to every EIS and does not make sense for all projects subject to NEPA. More narrowly, it should apply only to projects that will be heavily regulated under substantive environmental law regimes such as the Clean Air Act (CAA) (10) or Clean Water Act (CWA) (11)--where permits under those statutes will be central to project completion. In those instances, in which substantive regulations will distinctly govern how the project can be executed, agencies can and should discuss how they expect permits issued by other agencies to shape the project's ultimate environmental impacts.

1. CURRENT PRACTICES AND PROBLEMS WITH THE STATUS QUO

   This section provides background information about NEPA and surveys how EIS authors--administrative agencies (12)--currently address substantive environmental laws in their NEPA EISs. It concludes by presenting problems with the current practice in light of NEPA's goals and implementing regulations and as identified by the EPA and the majority of courts that have examined this issue.

   1. Background on NEPA

      NEPA was passed in 1969. (13) The Act contains three key provisions. First, Title I's "[congressional declaration of purpose" sets out the Act's goals: to "promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." (14)

      Second, Title I contains an action-forcing mechanism to achieve the Act's goals. It requires agencies to prepare a "detailed statement" of environmental impacts, now referred to as an environmental impact statement (EIS), for any "proposals for legislation [or] other major Federal actions significantly affecting the quality of the human environment...." (15) At base, NEPA requires federal agencies to "carefully consider[] detailed information concerning significant environmental impacts" (16) of proposed projects in the form of an EIS. (17) EISs have two primary purposes: (1) to ensure that federal agencies make fully informed project decisions in light of potential environmental consequences, and (2) to inform the public about those consequences and allow the public an opportunity to comment on and challenge proposed actions. (18) EISs must address (19):

      1. [T]he environmental impact of the proposed action,

      2. any adverse environmental effects which cannot be avoided should the proposal be implemented,

      3. alternatives to the proposed action,

      4. the relationship between the local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

      5. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

      To achieve NEPA's goals, EISs are prepared in two stages--a draft and final stage. At the onset, agencies undertaking a "major Federal action[] significantly affecting the quality of the human environment" (20) must compose a draft environmental impact statement (DEIS) and publish it to allow for comments from the public and agencies whose regulatory regimes will apply to the project. (21) After a public comment period, agencies must prepare a final environmental impact statement (FEIS) that responds to all comments received on the draft EIS. (22) The EPA has authority to review and comment on draft EISs and final EISs. (23)

      Third, Title II of the Act establishes the Council on Environmental Quality (CEQ) in the Executive Office of the President, which is responsible for implementing NEPA. (24) The CEQ "was reportedly modeled after the Council of Economic Advisors." (25) Subsequent to the CEQ's initial statutory mandate in NEPA, in 1970 President Nixon issued Executive Order No. 11,514, entitled "Protection and Enhancement of Environmental Quality," which conferred authority upon the CEQ to coordinate NEPA and develop guidelines for relevant agencies. (26) Part I.C.2 discusses CEQ's regulatory authority and means to effect NEPA's statutory requirements in greater detail.

      Courts have consistently held that NEPA imposes a duty on federal agencies to take a "'hard look' at environmental consequences." (27) This "hard look" requirement entails "both a complete discussion of relevant issues as well as meaningful statements regarding the actual impact of proposed projects." (28) This duty, however, is chiefly procedural, not substantive. As established in a seminal NEPA case, Vermont Yankee, "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. It is to [e]nsure a fully informed and well-considered decision...." (29) While NEPA does not contain substantive environmental standards, the Act's two-stage EIS...