Deciding How To Apply NEPA

1. Deciding How To Apply NEPA Environmental Assessments Findings of No Significant Impact Environmental Impact Statements

2. The Threshold Decision: Do we need to prepare an EIS? Environmental Assessment: Does the proposed action have the potential to significantly affect the quality of the human environment? Environmental Assessment: Does the proposed action have the potential to significantly affect the quality of the human environment? If YES, do an EIS! If NO, you’re free to go! (Well, not quite. You have to do a FONSI first).

3. The meaning of the term “significantly” CONTEXT: The affected environment in which the proposed action would take place INTENSITY: The severity of a proposed action’s impact on the environment

4. What’s “Context”? Significance not examined in isolation! Take into account the entire affected region and society as a whole. Consider socioeconomic, legal, and political situation, and the locality.

5. What’s “Intensity”? Environmentally beneficial actions Public health Unique characteristics of the geographic area Controversy Uncertain, unique, or unknown risks Precedent-setting aspects

6. Intensity, continued Cumulative effects Cultural resource effects Endangered species effects Violation of federal, state, or local environmental protection laws

7. The meaning of the term “effect” Agency must analyze “effects” including: ecological, aesthetic, historic, cultural, economic, social, health Agency must consider direct, indirect, and cumulative effects -- but only those that are reasonably foreseeable, not remote and speculative

8. Five Step Process for Evaluation of Cumulative Effects The area in which the effects of the proposed action will occur The impacts that are expected in that area from the proposed action Other past, present, and reasonably foreseeable actions that have or are expected to have impacts in the area The impacts or expected impacts from those other actions The overall impact that can be expected if the individual impacts are allowed to accumulate

9. The meaning of the phrase “quality of the human environment” “Human environment”: Broad interpretation Effects on natural environment Effects on physical (or “built”) environment Effects on human health Does NOT include socioeconomic and psychological factors

10. Environmental Assessments Provide evidence and analysis sufficient to determine whether an EIS is required Aid a federal agency’s compliance with NEPA when no EIS is necessary Facilitate preparation of an EIS when one is necessary

11. Principles Governing EA Preparation An EA must briefly discuss: -- The need for the proposed action --The proposed action and alternatives as required by NEPA § 102(2)(E) --The probable environmental impacts of the proposed action and alternatives -- The agencies and persons consulted during preparation of the EA 40 CFR 1508.9(b)

12. Alternatives • Scope defined by reference to the statement of purpose and need • Present impacts in comparative form, sharply defining issues and providing clear basis for choice • Rigorously explore and objectively evaluate a reasonable range of alternatives • Explain why certain alternatives eliminated from consideration • Must include no-action alternative • Identify preferred alternative • Include appropriate mitigation measures

13. FONSI • Documents agency determination that an EIS is not needed • A concise statement of the agency’s reasoning • Conclusions must be supported by data and analysis in EA • Public review sometimes available • Mitigated FONSIs often used

14. Evaluating the legal adequacy of an EA/FONSI Did the agency take a “hard look” at the problem? Did the agency identify the relevant areas of environmental concern? Did the agency make a convincing case that the impact was insignificant? If there was a significant impact, did the agency convincingly establish that changes in the project sufficiently reduced it to a minimum? Humane Society v. Hodel, 840 F.2d 45 (D.C. Cir. 1988).

15. Preparation and Review of an EIS Purposes of an EIS: Action-forcing mechanism Information disclosure device Problem-solving tool Consensus-building opportunity Information source

16. EIS Analysis • Succinctly describe affected environment • Baseline: description at a fixed point in time • Analyze direct, indirect, cumulative impacts • Mitigation measures • Adverse effects that can’t be avoided

17. Types of EISs Project-Specific: Prepared for an individual action Programmatic: Analyzes broad federal action such as policy, plan, or program. Agency can then tier EAs or EIS from the PEIS. Legislative: Used when agency proposes law to Congress

18. Supplemental EIS Required when agency makes relevant “substantial changes” to proposed action, or when there are “significant new circumstances or information” Mere passage of time does not automatically trigger supplemental EIS Addition of new alternative or new mitigation measures not described in the Draft EIS may trigger SEIS

19. Who may prepare an EIS? Lead agency Consultant hired & supervised by lead agency Project applicants may participate, under the control and independent judgment of the lead agency Cooperating agency, at lead agency’s request, although lead agency is ultimately responsible

20. Timing Prepare the EIS early enough so that it can serve as an important contribution to the decision-making process, rather than be used to rationalize or justify decisions already made. 40 CFR 1502.5

21. Public Involvement Agencies must provide public notice of NEPA-related hearings, public meetings, and document availability Agency is free to define the details of such participation within its own regulations Actions of national concern vs. local concern

22. Judicial Interpretations of NEPA U.S. Supreme Court: Narrow (“Dirty Dozen”) Lower federal courts: Broader interpretations The fate of NEPA § 101