Modernizing the NEPA Process in the Context of the Gulf Disaster
| Date | 01 November 2010 |
11-2010 NEWS & ANALYSIS 40 ELR 11147
D I A L O G U E
Modernizing the NEPA Process in
the Context of the Gulf Disaster
Moderator:
James McElsh, Sta Attorney and Director, Sustainable
Use of Land Program, Environmental Law Institute (ELI)
Panelists:
Monica Goldberg, Senior Attorney, e Ocean Conservancy
Edward A. Boli ng, Senior Counsel, Council on Environ-
mental Quality
Dr. Tom Simpson, Vice President and Technology Fellow,
CH2M HILL
Jim McElsh: We at ELI are particularly fond of NEPA
[National Environmental Policy Act].1 Our A rticles of
Incorporation were coincidentally led on the day that
NEPA passed the U.S. Senate in December 1969, so our his-
tory as an organization is coextensive with our initial env i-
ronmental policy. It’s an association that we think continues
to be important.
I’m pleased to have a really excellent panel with us today.
Ted Boling is a senior counsel for environmental policy and
public information at the Council of Environmental Qual-
ity (CEQ ). Ted had previously served as general counsel at
the CEQ and as deputy general counsel and before that, had
several stints with the U.S. Department of Justice and at least
one detail to the U.S. Department of the Interior (DOI), my
rst employer long ago.
He’ll be followed by Dr. Tom Simpson with CH2M
HILL, a consulting rm. Tom is based in Atlanta, Georgia,
and has over 30 years of consulting experience dea ling with
environmental permitting, resources, and planning, includ-
ing an extensive NEPA practice. Tom will be talking with us
about some of the dierent uses of categorical exclusions and
a range of issues that we’ll be exploring. Tom has also worked
internationally on environmental compliance and environ-
mental impact assessment issues.
Monica Goldberg, a senior attorney with e Ocean
Conservancy, also ha s extensive experience in Washington,
including a stint at the DOI. Monica, of course, has her
hands full with Oceans Policy. e president has just issued
an Executive Order yesterday establishing a national oceans
policy, so the CEQ will have even more to do among its
many coordinating roles.2
Ted’s going to lead o with an overview focusing on cat-
egorical exclusions. Categorical exclusions are one of those
NEPA categories that years ago we didn’t think much about.
1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
2. Exec. Order No. 13547, 75 Fed. Reg. 43023 (July 22, 2010).
We thought NEPA was an environmental impact statement
(EIS) statute. And we thought that there was this environ-
mental assessment [EA] that was used originally to deter-
mine whether you need to do an EIS, but later became sort of
the preferred environmental analysis for many agencies. e
categorical exclusions were these lists of actions which, in the
words of the regulation, “do not individually or cumulatively
have a signicant eect on t he human environment,” and
which the agencies have determined through processes that
they don’t need to do either an EA or an EIS. e categori-
cal exclusion has assumed greater and greater prominence in
recent years, and over the last decade, many agencies have
expanded their lists of categorical exclusions. And as Ted will
point out, even the U.S. Congress has gotten into the act.
en, we’ll move on to Dr. Simpson, who will talk with us
about some of the approaches to categorical exclusions that
have been used by various agencies. en, Monica Goldberg
will nish by focusing on the Minerals Management Ser-
vice’s (MMS’) use of the categorical exclusion and particu-
larly on the way in which categorical exclusions were used in
permitting the Macondo Well [in the Gulf of Mexico], which
we’ve all come to know and loathe.
I. Categorical Exclusions: An Overview
Ted Boling: A s Jim noted, NEPA is 40 years old t his year,
and we too at the CEQ are quite fond of it. It’s the statute
that created t he CEQ in Title II. But most people focus on
Title I: e Environmental Impact Statement, one require-
ment of §102(2)(c), and the Environmental A nalysis under
§102(2)(e) of alternatives for things that don’t rise to that
threshold of the “major federal actions signicantly aecting
the quality of human environment.”
In the regulations that the CEQ created in 1978 pursu-
ant to an Executive Order,3 the CEQ provided for categori-
cal exclusions; categories of actions that are individually or
cumulatively not signicant and therefore should not require
an EIS. And in the rst slide here, we have the denition
excerpted.4 e thing I’ d point out is that this is not a cat-
egory of actions that agencies are free to create on their
own. ere is a cross-reference to the procedure for adopting
3. Exec. Order. No. 11990, 42 Fed. Reg. 26961 (May 25, 1977).
4. Id. §1508.4:
Categorical Exclusion means a category of actions which do not
individually or cumulatively have a signicant eect on the human
environment and which have been found to have no such eect in
procedures adopted by a Federal agency in implementation of these
regulations (§1507.3) and for which, therefore, neither an environ-
mental assessment nor an environmental impact statement is required.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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