NEPA PRACTICE POINTERS AND PITFALLS: HOW TO KEEP PROJECTS ON SCHEDULE AND LEGALLY DEFENSIBLE

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 14B
NEPA PRACTICE POINTERS AND PITFALLS: HOW TO KEEP PROJECTS ON SCHEDULE AND LEGALLY DEFENSIBLE
Barbara D. Craig
Partner, Stoel Rives LLP
Portland, OR

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BARBARA D. CRAIG is a partner at Stoel Rives LLP in Portland, Oregon. She focuses her practice on federal environmental and natural resources law with an emphasis on endangered species compliance and energy facility permitting and compliance issues. Barbara has extensive experience in issues involving the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act and National Environmental Policy Act.

I. INTRODUCTION

The National Environmental Policy Act of 1969 ("NEPA") imposes mandatory procedural requirements upon federal agencies before the agencies can implement or authorize a federal action such as issuing a permit, granting a right-of-way or funding a project. Although NEPA is primarily a procedural statute, compliance with it provides federal agencies and the public with information and the opportunity to review and comment on the likely environmental impacts of a proposed project, and ensures that these impacts are thoroughly analyzed. The public disclosure that NEPA requires provides the public an opportunity to ensure that substantive standards are being met under other federal laws such as the National Historic Preservation Act ("NHPA"), Bald and Golden Eagle Protection Act ("Eagle Act"), the Migratory Bird Treaty Act ("MBTA"), the Clean Water Act ("CWA"), the Marine Mammal Protection Act ("MMPA") and the Endangered Species Act ("ESA").

This paper will discuss practical tips to help project proponents manage and prepare NEPA documents and meaningfully participate in a NEPA process to meet all applicable federal laws and project deadlines. Project proponents should work with the lead federal agency to develop a comprehensive NEPA strategy to ensure that all federal agency actions are identified and evaluated. This will necessitate that the project proponent thoroughly define its project proposal to ensure that all attributes of the project are analyzed and all necessary permits are addressed in one NEPA process. Such an approach will help with federal agency coordination as well as the development of a thorough administrative record for all the substantive permit requirements.

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To ensure a focused evaluation of the meaningful alternatives, the project proponent will need to work with the lead federal agency on articulating the purpose and need statement. Because the alternatives analysis is at the heart of NEPA, the purpose and need statement is critical in identifying the scope of the project and the reasonable range of alternatives. A well-defined purpose and need statement will not only identify the reasonable alternatives to be evaluated in the NEPA document but also serve as a scope to identify and eliminate alternatives from further consideration. These efforts will help streamline the NEPA process and provide more meaningful information for the public to evaluate the impacts of a proposed project, and should serve as a defensible administrative record if the agency action is challenged.

II. DISCUSSION

A. NEPA Is Primarily Procedural but Provides Substantive Review of Other Federal Laws

NEPA sets forth a procedural framework for evaluating environmental impacts of federal actions. 42 U.S.C. § 4321, et seq. NEPA requires a thoughtful and reasonably thorough analysis of the probable environmental impacts of a proposed project before federal agencies make final binding decisions.¹ See Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (NEPA requires that federal agencies take a "hard look" at environmental consequences).

Although NEPA is considered primarily a procedural statute, the NEPA process provides substantive review of other federal laws such as the MMPA, MBTA, CWA, FLPMA and ESA that have specific, binding and enforceable standards. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) (Supreme Court stated that "[o]ther statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed--rather than unwise--agency action" (footnote omitted)). The NEPA process provides the public with an opportunity to ensure that substantive standards are being met under other federal laws. Additionally, a project proponent will want to ensure that the NEPA record demonstrates compliance with other federal statutes to ensure the final agency action is defensible and that the NEPA record is robust enough to support other agencies' permit or approval decisions for the project.

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NEPA ensures consideration of environmental issues in federal decision-making. NEPA does not require an agency to take the action that is most compatible with environmental conservation. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978). The primary purpose of NEPA is to compel federal agencies to give serious weight to environmental factors in making decisions. Kleppe, 427 U.S. 390. The NEPA process provides a procedural framework for all federal decisions relating to the development of a major federal action significantly affecting the quality of the human environment, and an administrative record that allows the public to evaluate if the agency is complying with other federal laws. The discussion below provides some examples of the interconnections between NEPA and other federal laws such as the NHPA, the Eagle Act, MBTA, CWA, MMPA and ESA, but it is not intended to be an exhaustive review of all federal laws.

1. National Historic Preservation Act

Section 106 of the NHPA requires federal agencies to "take into account the effect of the undertaking" on any property listed on or eligible for listing on the National Register of Historic Places. 54 U.S.C. § 306108. An "undertaking" is a project or activity funded by a federal agency or authorized by a federal permit or license. 54 U.S.C. § 300320. Section 106 is a review process similar to the environmental review under NEPA.

Regulations adopted by the Advisory Council on Historic Preservation ("ACHP") detail procedures for identification of historic properties, assessment of effects upon them, and consultation to consider measures to resolve any adverse effects. 36 C.F.R. §§ 800.3-800.6. Procedures adopted by other agencies must be consistent with those adopted by the ACHP. Under the ACHP regulations, a finding that a federal action may have an "adverse effect on a historic property does not necessarily require an EIS under NEPA." 36 C.F.R. § 800.8(a)(1).

The ACHP regulations encourage federal agencies to coordinate, as early as possible, their public participation, analysis and review to meet the requirements of both NHPA section 106 and NEPA. Id. The ACHP regulations also provide that agencies may use the NEPA process and documentation to comply with section 106 in lieu of the procedures set forth in 36 C.F.R. §§ 800.3-800.6. See 36 C.F.R. § 800.8(c). To use this option, the agency must notify "in advance" the ACHP and State Historic Preservation Officer or Tribal Historic Preservation Officer, as applicable, that the agency intends to do so, and must meet standards established in 36 C.F.R. § 800.8(c). Conversely, compliance with the section 106 regulations does not assure compliance with NEPA. Pres. Coal., Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir. 1982).

2. Bald and Golden Eagle Protection Act

The Eagle Act provides for the protection of eagles by prohibiting the "take" of eagles, and their parts, nests or eggs, unless allowed by permit. 16 U.S.C. § 668. The Eagle Act defines "take" to include "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb." 50 CFR § 22.3. "Disturb" means to agitate or bother an eagle "to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal

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breeding, feeding or sheltering behavior." Id. The regulations that implement the Eagle Act...