Nepa at 40

• Date: 01 July 2009

39 ELR 10660 EnviRonmEntaL Law REpoRtER 7-2009

NEPA at 40

by George J. Mannina Jr.

George J. Mannina Jr. is a partner at Nossaman LLP specializing in environmental and natural resources law, including NEPA.

What constitutes a successf ul National Environ-

mental Policy Act (NEPA)1 process? Responses by

NEPA supporters would likely include statements

such as “a full examination of t he relevant issues,” “under-

standing the implications of a proposed action,” or “mak-

ing informed and reasoned decisions.” In 2007, the Virginia

Polytechnic Institute (VPI) asked NEPA compliance sta

at the National Park Service, Bureau of Land Management,

U.S. Army Corps of Engineers, and the U.S. Forest Service

the same question.2

e results, published in April 2007, suggest that agen-

cies implementing NEPA may not share the loft y goals that

the congressional sponsors of NEPA envisioned in 1969. In

response to the question what constitutes a successful NEPA

process, 72% of agency sta responded stating “the project

was implemented,” 16% responded “a good nal decision,”

and 4% responded “a well-documented rationale for the

decision.” ese results bespeak a view among key federal

resource management agencies that a successf ul NEPA pro-

cess is not about improved analysis and decisionmaking but

is about completing the agency’s action plan.

An interesting and related question in the VPI study was

“what is the purpose of the NEPA process?” Only 35% of

the NEPA ocials in the four agencies responded “improved

environmental understanding.” Interestingly, another 35%

of the respondents stated NEPA was a necessary process that

had to be undertaken to avoid litigation.

After 40 years, NEPA is seen by many federal agencies

as yet another mountain to climb in the path to project

implementation rather than as a tool to aid and improve

decisionmaking.

I. Improving NEPA Compliance: Scoping

To improve NEPA compliance, we need to change how we

measure a successf ul NEPA process. e measure of success

is not that the project was implemented, but that there was

an improved analytical process such that the decisionmaker

fully understood the consequences of his or her decision.

1. 42 U.S.C. §§4321-4370f, ELR S. §§2-209.

2. M J. S  M J. M, D  F, C-

  N R, V P I  S

U, C NEPA P A F L M-

 A (Apr. 12, 2007).

e rst step toward this objective is to improve the scop-

ing process. Scoping is the process for determining the issues

to be addressed and the signicant matters related to the

proposed action.3 A lthough the Council on Environmental

Quality’s (CEQ’s) regulations encourage an early and open

scoping process,4 ma ny agencies prefer to wait until project

details are worked out. Perhaps this reects the view that a

successful NEPA process means the project is implemented.

Agency sta often fear that early scoping will only result in

bringing project opponents into the planning process before

the agency is truly ready to defend the project. Agencies fear-

ful of ea rly scoping tend to confuse the issue of whether we

need the project with the issue of what questions we need to

consider in making that decision. Scoping should identify

the issues to be considered in determining the impacts of the

proposed action and of the no-action alternative. Scoping is

not about the project’s purpose, assuming that purpose is not

so narrowly drawn as to make only one option viable. Scop-

ing is about issue identication, so an informed decision can

be made.

Early and serious scoping should help agencies because

the earlier environmental issues are identied, the easier it

is to design around and mitigate potential problems, thus

minimizing future conicts and perhaps expediting the

project. By planning the project rst and then considering

environmental consequences, agencies may lock in potential

problems. Viable options may not be explored until after

positions are xed and battle lines drawn. e fact is that

resource agencies and other interested parties may see issues

that the project sponsor may not see, and early involvement

by the resource agencies and other experts can help.

e ip side of the coin is t hat resource agencies and

other interested parties do not always take scoping seriously.

CEQ regulations do not require a scoping meet ing. Equally

important, there is no penalty for failing to participate in the

scoping process. To address these issues and to improve the

scoping process and, therefore, NEPA:

• the CEQ should require a scoping meeting and provide

guidance on when in the continuum of project plan-

ning a scoping meeting should be convened; and

3. 40 C.F.R. §§1501.7, 1508.25.

4. Id. §1501.7.