REVIEW OF INDIRECT AND CUMULATIVE IMPACTS, AND CONNECTED ACTIONS FOR MINERAL-RELATED PROJECTS UNDER NEPA
| Jurisdiction | United States |
REVIEW OF INDIRECT AND CUMULATIVE IMPACTS, AND CONNECTED ACTIONS FOR MINERAL-RELATED PROJECTS UNDER NEPA
Director, Western Mining Action Project
Adjunct Professor, University of Colorado Law School
Boulder, CO
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ROGER FLYNN is the founding Director and Managing Attorney of the Western Mining Action Project (WMAP). Founded in 1993 and based in Lyons, Colorado, WMAP is the nation's only non-profit public interest law firm specializing in hardrock mining and related public land and environmental laws. He is an Adjunct Professor at the University of Colorado School of Law (since 2002), teaching courses in Natural Resources Law and Mining and Mineral Development Law. He was also an Adjunct Professor at the University of Wyoming College of Law (2004-2010). WMAP represents conservation groups and Native American groups and Tribes before federal and state courts on project-specific mining litigation, administrative permitting disputes, and litigation over state and national mining regulations. From 1993 to 1998, he served as the environmental community's representative on the Governor's Summitville Advisory Committee, established to advise the State on cleanup efforts at the Summitville cyanide heap-leach mining site in the San Juan Mountains. His publications include: New Life for Impaired Waters: Realizing the Goal to "Restore" the Nation's Waters Under the Clean Water Act, WYOMING LAW REVIEW (2010); Daybreak on the Land: The Coming of Age of the Federal Land Policy and Management Act of 1976, VERMONT LAW JOURNAL (2005); The Right to Say No: Federal Authority Over Hardrock Mining on Public Lands, JOURNAL OF ENVIRONMENTAL LAW AND LITIGATION (2001, with Parsons); and The 1872 Mining Law As An Impediment To Mineral Development On The Public Lands: A 19th Century Law Meets The Realities Of Modern Mining, LAND AND WATER LAW REVIEW (1999). Roger received his J.D. from the University of Colorado School of Law in 1991 and his B. S. in Industrial Engineering from Lehigh University in 1984.
The review of impacts to environmental and other resources caused by mineral-related projects has received considerable attention from the federal courts in recent years. Much of the litigation has involved the review and approval of hardrock and coal mines, and oil and gas leasing and permitting, by the federal land management agencies in the West - the Bureau of Land Management (BLM) and U.S. Forest Service (USFS). Other important decisions have involved federal agencies responsible for approving energy transmission facilities, such as the Federal Energy Regulatory Commission (FERC). This paper will discuss these developments, with a focus on the caselaw dealing with these agencies' duties to review the indirect and cumulative impacts of these projects, as well as the impacts from other actions connected with these projects.
I. STATUTORY AND REGULATORY BACKGROUND FOR REVIEWING INDIRECT AND CUMULATIVE IMPACTS, AND CONNECTED ACTIONS UNDER NEPA
Under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and its implementing regulations promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. Part 1500, federal agencies must fully review all direct, indirect, and cumulative impacts of the proposed action. 40 C.F.R. §§ 1502.16, 1508.8, 1508.25(c). Direct effects are caused by the action and occur at the same time and place as the proposed project. 40 C.F.R. § 1508.8(a). Indirect effects "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b); see New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 476 (D.C. Cir. 2012). "Effects are reasonably foreseeable if they are sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision." EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir. 2016).
Both types of impacts include "effects on natural resources and on the components, structures, and functioning of affected ecosystems," as well as "aesthetic, historic, cultural, economic, social or health [effects]." Id. Cumulative effects/impacts are defined as:
[T]he impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7. In a cumulative impact analysis, an agency must take a "hard look" at all actions.
[A]nalysis of cumulative impacts must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment. ... Without such information, neither the courts nor the public ...
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can be assured that the [agency] provided the hard look that it is required to provide.
Te-Moak Tribe of Western Shoshone v. Dept. of Interior, 608 F.3d 592, 603 (9th Cir. 2010) (rejecting NEPA review for mineral exploration operation that had failed to include detailed analysis of impacts from nearby proposed mining operations).
"The CEQ regulations require agencies to discuss the cumulative impacts of a project as part of the environmental analysis. 40 C.F.R. § 1508.7." Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir. 2002). "Of course, effects must be considered cumulatively, and impacts that are insignificant standing alone continue to require analysis if they are significant when combined with other impacts. 40 C.F.R. § 1508.25(a)(2)." New Mexico ex rel Richardson v. BLM, 565 F.3d 683, 713, n. 36 (10th Cir. 2009). See also Wyoming Outdoor Council v. U.S. Army Corps of Eng'rs, 351 F.Supp.2d 1232, 1243 (D. Wyo. 2005) (failure to adequately review all cumulative impacts is arbitrary and capricious and violates NEPA).
A cumulative impact analysis must provide a "useful analysis" that includes a detailed and quantified evaluation of cumulative impacts to allow for informed decision-making and public disclosure. Kern v. U.S. Bureau of Land Management, 284 F.3d 1062, 1066 (9th Cir. 2002); Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108 1118 (9th Cir. 2004). The NEPA requirement to analyze cumulative impacts prevents agencies from undertaking a piecemeal review of environmental impacts. Earth Island Institute v. U.S. Forest Service, 351 F.3d 1291, 1306-07 (9th Cir. 2003).
The NEPA obligation to consider cumulative impacts extends to all "past," "present," and "reasonably foreseeable" future projects. Kern v. BLM, 284 F.3d at 1076; Hall v. Norton...
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