NEPA: THE VALUE OF PUBLIC PARTICIPATION

• Jurisdiction: United States

NEPA and Federal Land Development
(Feb 2006)
CHAPTER 8A
NEPA: THE VALUE OF PUBLIC PARTICIPATION
Sharon Buccino
Natural Resources Defense Council
Washington, D.C.

SHARON BUCCINO

Sharon Buccino is a Senior Attorney and Director of the Public Lands program at the Natural Resources Defense Council (NRDC), a non-profit organization dedicated to protection of the environment and public health. Ms. Buccino has worked in NRDC's Washington, D.C., office since 1993. She represents NRDC in court, before Congress and federal agencies. Her current work focuses on energy policy, the National Environmental Policy Act, and open government.

Prior to joining NRDC, Ms. Buccino practiced environmental and administrative law with a private firm in Washington, D.C. She also served as a law clerk for the Alaska Supreme Court.

Ms. Buccino earned her J.D. from Stanford Law School and her B.A. from Yale University.

I. THE REQUIREMENT FOR NOTICE AND COMMENT ON ENVIRONMENTAL ASSESSMENTS

A. No explicit requirement for circulation of draft EAs for public comment as there is for Environmental Impact Statements under NEPA regulations issued by Council on Environmental Quality (CEQ).

1. 40 C.F.R. § 1503.1(a) ("After preparing a draft environmental impact statement and before preparing a final environmental impact statement the agency shall ... request comments from the public."). Cf. 40 C.F.R. § 1501.4 (the agency must "involve the public, to the extent practicable, in preparing [EA]s").

2. Alliance to Protect Nantucket Sound v. United States Dep't of Army, 398 F.3d 105, 115 (1 ^st Cir. 2005) (no NEPA violation where agency provided a five-month comment period and held two public meetings, but did not circulate EA).

3. Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1279 (10 ^th Cir. 2004) (no need to circulate draft EA for comment where series of meetings were held with environmental groups and the proposal was modified as a result).

4. Pogliani v. United States Army Corps of Eng'rs, 306 F.3d 1235, 1238- 39 (2 ^nd Cir. 2002) (no need to circulate EA accompanying wetlands permit for new electric generating plant for public comment).

5. Montrose Parkway Alternatives Coalition v. U.S. Army Corps of Eng'rs, 2005 WL 3452214 (D.Md. Dec. 16, 2005) (no NEPA violation for failure to circulate draft EA for comment where Corps did provide opportunity to comment on wetlands permit application).

B. But several courts have invalidated EAs for inadequate public involvement.

1. Relying on requirements in CEQ regulations to involve public generally in NEPA process and purpose of NEPA to foster informed decision-making

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and informed public participation. See 40 C.F.R. §§ 1500.1(b) ("public scrutiny [is] essential"); 1500.2(d) (the agency must "encourage and facilitate public involvement"); 1506.6 (the agency must "make diligent efforts to involve the public" in preparing environmental documents, give "public notice of ... the availability of environmental documents so as to inform those persons ... who may be interested or affected," and "solicit appropriate information from the public.").

2. Citizens for Better Forestry v. U.S. Dep't of Agriculture, 341 F.3d 961, 970 (9 ^th Cir. 2003) ("Citizens were deprived of the

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