Deciding How To Deciding How To Apply NEPA Apply NEPA

Environmental AssessmentsEnvironmental Assessments

Findings of No Findings of No Significant ImpactSignificant Impact

Environmental Impact Environmental Impact StatementsStatements

The Threshold Decision:The Threshold Decision: Do we need to prepare Do we need to prepare

an EIS?an EIS?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).

Environmental Assessment:Does the proposed action have the potential to significantly affect

the quality of the human environment?

The meaning of the term The meaning of the term “significantly”“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

What’s “Context”? 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.

What’s “Intensity”?What’s “Intensity”?

Environmentally beneficial actions

Public health

Unique characteristics of the geographic areaControversy

Uncertain, unique, or unknown risks

Precedent-setting aspects

Intensity, continuedIntensity, continued

Cumulative effects

Cultural resource effects

Endangered species effects

Violation of federal, state, or local environmental protection laws

The meaning of the term The meaning of the term “effect”“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

Five Step Process for Five Step Process for Evaluation of Cumulative Evaluation of Cumulative

Effects Effects 1.The area in which the effects of the

proposed action will occur2.The impacts that are expected in that

area from the proposed action3.Other past, present, and reasonably

foreseeable actions that have or are expected to have impacts in the area

4.The impacts or expected impacts from those other actions

5.The overall impact that can be expected if the individual impacts are allowed to accumulate

The meaning of the phrase The meaning of the phrase “quality of the human “quality of the human

environment”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

Environmental Environmental AssessmentsAssessments

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

Principles Governing EA Principles Governing EA PreparationPreparation

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)

AlternativesAlternatives Scope defined by reference to the statement Scope defined by reference to the statement of purpose and needof purpose and need

Present impacts in comparative form, Present impacts in comparative form, sharply defining issues and providing clear sharply defining issues and providing clear basis for choicebasis for choice

Rigorously explore and objectively evaluate Rigorously explore and objectively evaluate a reasonable range of alternativesa reasonable range of alternatives

Explain why certain alternatives eliminated Explain why certain alternatives eliminated from consideration from consideration

Must include no-action alternativeMust include no-action alternative Identify preferred alternativeIdentify preferred alternative Include appropriate mitigation measuresInclude appropriate mitigation measures

FONSIFONSI

Documents agency determination that Documents agency determination that an EIS is not neededan EIS is not needed

A concise statement of the agency’s A concise statement of the agency’s reasoningreasoning

Conclusions must be supported by Conclusions must be supported by data and analysis in EAdata and analysis in EA

Public review sometimes availablePublic review sometimes available Mitigated FONSIs often usedMitigated FONSIs often used

Evaluating the legal Evaluating the legal adequacy of an EA/FONSIadequacy of an EA/FONSI

(1)Did the agency take a “hard look” at the problem?

(2)Did the agency identify the relevant areas of environmental concern?

(3)Did the agency make a convincing case that the impact was insignificant?

(4)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).

Preparation and Review of Preparation and Review of an EISan EIS

Purposes of an EIS:

Action-forcing mechanism

Information disclosure device

Information source

Problem-solving tool

Consensus-building opportunity

EIS AnalysisEIS Analysis

Succinctly describe affected Succinctly describe affected environmentenvironment

Baseline: description at a fixed Baseline: description at a fixed point in timepoint in time

Analyze direct, indirect, Analyze direct, indirect, cumulative impactscumulative impacts

Mitigation measuresMitigation measures Adverse effects that can’t be Adverse effects that can’t be avoidedavoided

Types of EISsTypes of EISs

Project-Specific: Prepared for an individual action

Programmatic: Analyzes broad federal actionsuch as policy, plan, or program. Agency can then tier EAs or EIS from the PEIS.

Legislative: Used when agency proposes law toCongress

Supplemental EISSupplemental 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

Who may prepare an EIS?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

TimingTiming

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

Public InvolvementPublic 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 regulationsActions of national concern vs. local concern

Judicial Judicial Interpretations of NEPAInterpretations of NEPA

U.S. Supreme Court: Narrow (“Dirty Dozen”)

Lower federal courts: Broader interpretations

The fate of NEPA § 101