1. Would you want to know about the action itself? 2. Would m … · · 2012-06-16The vocabulary of NEPA: Proximate cause, cause-in-fact, chain of causation Cause-and-effect Chain

Existing

Past actions

Other present actions

Reasonably foreseeable future action

Proposed action

Mitigation action

y1

y2

y3

y4

y5

y6

x1

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Existing

Past actions


Reasonably foreseeable future action

Proposed action

Mitigation action

y1

y2

y3

y4

y5

y6

x1

}40 CFR 1502.16(a) & (b); 1508.8

40 CFR 1508.7; 1508.25(c)(3)

40 CFR 1508.25(b)(3); 1502.16(h);

1505.2(c)

40 CFR 1508.23; 1508.25(a)(2) &(3)

40 CFR 1508.27(b)(10); 1502.16(c);

1506.2(d)

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1. Would you want to know about the action itself? 2. Would you want to know what Mother Nature has in store? 3. Would you want to know where the pipelines are? 4. Would you want to know what else is happening today? 5. Would you want to know what is planned for the future? 6. Would you want to know ahead of time about clean-up? Red bar: Would you want to know about sidebars?

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You already were going to do this .....

2

The vocabulary of NEPA:

Relevance

Delano v. Roche, 391 F.Supp.2d 79, 89 (D.D.C. 2005) (not a NEPA case) (relevant evidence is defined in the Federal Rules of Evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”)

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Reasons

Not to prepare a CatEx, EA, or EIS

Not to prepare an EIS

Not to include an alleged alternative

Not to include an alleged connected action

Not to include an alleged consequence

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The giving of reasons is the rational connection between the facts found to the choice made. “The relevant inquiry is whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Pyramid Lake Paiute Tribe v. U.S. Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990)

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Significance

x1 y6What How much Reasons

Ultimate conclusion

Basic conclusions

Evidence

Legal result

Legal

Context Intensity

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Addition includes subtraction

1 + 2 = 3

12 + (-9) = 3

9 + (-12) = -3

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Multiplication is rapid addition. Division is rapid subtraction. Subtraction is addition of a negative number. And addition is addition. It’s all addition.

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Proximate cause, cause-in-fact, chain of causation

Cause-and-effect

Chain of

causation

Intervening cause• Dependent

• Independent

A reasonably close causal relationship

NOT coincidence, acausal relationship (synchronicity), magic ......

Direct

Indirect

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Idea

Proposal

Recommendation or report

Decision

Action

Monitoring

Idea

Proposal for action

Decision

Action

Monitoring

Recommendation or report on proposal for

action

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CASE LIST: A close causal relationshipCause-and-effect is the only relationship known to science, practically overlooked in the vocabulary of NEPA, except in the Supreme Court and a few very recent decisions. Is there any other method for predicting the future, other than the method of applying cause-and-effect?

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The vocabulary of decisionmaking, derived from the text of NEPA itself. The NEPA process is triggered by a proposal for action, and must be concluded in time to be included in any recommendation or report on such a proposal. Once the decision is made and action is taken, monitoring may indicate a need for further action, in which case a new proposal may be made.

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Impact

im!pact noun [ím pàkt ] (plural im!pacts)

1. action of hitting: the action of one object hitting another2. force of collision: the force with which one object hits another3. effect: the strong effect that something or somebody has

transitive and intransitive verb [im pákt ] (past im!pact!ed, past participle im!pact!ed, present participle im!pact!ing, 3rd person present singular im!pacts) 1. strike something: to strike something with force2. have an effect on something: to have an immediate and strong effect on something or somebody3. press together forcefully: to press together with great force

Word Key: Usage NoteImpact, noun and verb: The noun impact, in its figurative meaning, should normally convey some sense of powerful or dramatic consequence, and should not just be an alternative word for effect or impression. To use it in a context like he had an impact on everyone in the room - except in highly unusual circumstances - is to devalue the word. Many careful users of the language strongly dislike the verb impact in any figurative sense whatsoever, regardless of whether the verb is followed by on: both, for example, this impacts the company favorably and this impacts on the company are courting contempt. The verb is undeniably common in business communication, but anyone who hopes to achieve an effect that is even faintly literary should avoid it in favor of affect, change, or the like. Use of the verb is uncontroversial only in physical senses: The car impacted the railing.

Encarta® World English Dictionary [North American Edition] © & (P) 2001 Microsoft Corporation. All rights reserved. Developed for Microsoft by Bloomsbury Publishing Plc.

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Direct, indirect, and cumulative

Can you describe an “impact” that occurs in a natural system that is anything other than the direct consequence of an immediately preceding event or events? In other words, aren’t all “impacts” in a natural system “direct” impacts, though they may exist in a chain of impacts?

Can you describe an “impact” that occurs in a natural system that is anything other than the addition (where “addition” includes “subtraction”) to something that has occurred, is occurring, or will occur? In other words, could there be an “impact” at all unless there were an addition to something that has occurred, is occurring, or will occur?

Go to your library. Dig through your inventory of EAs and EISs. Put your finger on each and every "impact" you find. Ask first whether this impact is the direct consequence of something else in the EA or EIS (such as the proposed action, an alternative action, a mitigation measure, something in the existing environment, a connected action, a consequence of one these, etc.). Is it a direct impact? Ask second whether this impact adds to or subtracts from something that has happened, is happening, or foreseeably will happen in the future. Is it a cumulative impact? You will answer yes to each question each time!

Delete the word when you encounter it, and see if it makes any difference to the meaning of the sentence or the paragraph. You may well discover that the word is extraneous, and that the phrase “cumulative impact” has no meaning other than the single word “impact.”

The word “cumulative” is an adjective. To prove that this is a valid construction, we would have to find an impact that is not also a “cumulative impact,” just as we would have to find a warbler that is not also a “yellow warbler.” As already shown, every impact is a cumulative impact by its very nature. Every impact is the addition of something to something that has happened, is happening, or foreseeably will happen. So this proof cannot be made. We can find warblers that are not yellow, but we cannot find impacts that are not the addition of something to something that has happened, is happening, or foreseeably will happen.

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The word “impact” may be a noun or a verb. The phrase “impact statement” or “impact assessment” is ambiguous.

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ESSAY: No such thing as a cumulative impact as a third, distinct type of impact.

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40 CFR 1508.25 Scope. Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact

statement. The scope of an individual statement may depend on its relationships to other statements (Section 1502.20 and Section 1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be: (1) Connected actions, which means that they are closely related and therefore should be discussed in the

same impact statement. Actions are connected if they: (i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.

(b) Alternatives, which include:(1) No action alternative. (2) Other reasonable courses of actions. (3) Mitigation measures (not in the proposed action).

(c) Impacts, which may be: (1) Direct; (2) indirect; (3) cumulative.

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“Cumulative” is an adjective

Yellow

Warbler Impact

Cumulative

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There is no connector between (2) and (3). There is no requirement anywhere that impacts be properly labeled, or labeled at all.

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The “cums.” NOT. If “cumulative” means to increase by successive additions (where addition includes subtraction), then all impacts are “cumulative.” If there is no addition (or subtraction), there simply is no impact. All impacts are thus cumulative. We see warblers that are not yellow. Can we find an impact that is not “cumulative”?

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Aggregative, Interactive, Diachronic, Phase transitional• Aggregative — Addition or subtraction. A proposal for action may add to or subtract from the

existing environment. By CEQ’s definition, such a proposed action is a cumulative action. In fact,

isn’t every action that is proposed, proposed for the very purpose of adding to or subtracting from

the existing environment?

• Interactive — Synergism. Everything is connected to everything else in natural systems.

Everything interacts with everything else, at some level through some number of connectors. By

definition, then, every action and every consequence is “cumulative” in the synergistic sense. It is

the central purpose of our analysis, though, to figure out how one event (such as a proposed action)

interacts with another event (such as an element of the existing environment).

• Diachronic — Change over time. Almost nothing in natural systems is static over time. Almost

everything in the environment is constantly changing. The “existing environment” changes over time,

and thus “doing nothing” (the no-action alternative) has its own consequences. Doing something (the

proposal or other action alternative) has its consequences, which may in turn be dynamic over time.

This is the “time” component of our analysis — perhaps the most-overlooked of all consequences.

“The only constant is change.”

• Phase transition emergent phenomenon — Change not predicted by prior action. Take water at

33 degrees and cool it one degree. It is just cooler water. Cool it still more to remove latent heat

and it changes to ice — a phase transition not predicted by the cooling events that preceded it.

Take water at 211 degrees and heat it one degree. It is warmer water. Add enough heat and it boils

— a phase transition not predicted by the heating events that preceded it. “The straw that broke

the camel’s back.”

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40 CFR 1508.7 Cumulative impact. ‘‘Cumulative impact’’ is the 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 CFR 1508.8 Effects. ‘‘Effects’’ include:

(a) Direct effects, which are caused by the action and occur at the same time and place.

(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

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Science-based impact assessment.

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14

Existing

Past actions


Reasonably foreseeable action

Proposed action

Mitigation action

The x-axis is the “what” — What is the consequence of concern? Land, air, water ….

x

y

Make a new column for each

consequence of concern.

The y-axis is the “how much” — How big is that consequence?

The y-value can be qualitative or quantitative.

Every!ing !at can be c"nted do# not nec#sa$ly c"nt; every!ing !at c"nts cannot nec#sa$ly be c"nted.

Albe% Ein&ein

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It is safe to omit x from detailed analysis; give reasons why further

investigation is not warranted

Show all 6 y-values (or use alternative method) for x, and compare to level of concern (and/or other alternatives)

Is it an “x”?

It is safe to omit x

Internal scoping

External scoping

No

Start

No

Yes

Yes

ZeroAgency must investigate whether the y1 value is zero or not zero.

Not Zero

Scoping“for an early identification of what are and what are not the real issues,” 40 CFR 1500.5(d); “for

determining the scope of issues to be addressed and for identifying the significant issues related to a

proposed action,” 40 CFR 1501.7

Agency must analyze sum total aggregate cumulative value of x

No

Yes

Is there a level of concern?

Is x a “significant” issue? Is there another reason to omit x?

Is it a consequence of concern?

Jump to administrative

estoppelJump to next

frame

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The model for a “perfect cumulative impacts analysis” is based on a typical column graph, where the horizontal x-axis represents “what” the impact of concern is, and the vertical y-axis represents “how big” the impact is. The “intensity” of impact “x” will be known in proper context when all 6 y-values are finally added up.

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There are 3 possible outcomes: (1) The issue never comes up, so it is safe to omit it. (2) The issue comes up, but for reasons stated the issue is omitted. (3) The issue is included.

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Reasons why it is safe to omit x from detailed analysis

• RELEVANCE — the agency has determined in the scoping process that x is “not relevant” to the decision to be made

• x has a value (y1) of zero

• tiering

• the agency can do nothing about x

• SIGNIFICANCE — the agency has determined in the scoping process that x is “not significant”

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x1

y1 Proposed action

Start with one of the consequences of concern. How big

is it?The value y1 is the size of

the consequence of concern.

The value at y1 is not a consequence of x1; it is the measure of the size of x1

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If the y1 value of x1 is zero, it has no bearing on the outcome and would not be relevant. If the agency is tiering the x-issue, it would not be relevant to the decision to be made. If the agency can do nothing about x, it is not the legally relevant cause.

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x1 is one of the consequences of concern, and y1 is the size of x1. y1 is not a consequence of x; it is the size of x1.

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y1

Existing/Natural“Mother Nature”y2

Proposed action

If this thing adds to something that is already present in the naturally-occurring environment,

add it.

y2 = y1 when there is nothing in the

backgroundor baseline

The value y2 is the incremental

impact of the proposed action added

to what is already naturally present.

x1

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x

y1

Existingy2

Past actions

Proposed action

y3


impact of the proposed action added to

the impacts of past actions and what

was naturally occurring.

Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2005): For the public and agency personnel to adequately evaluate the cumulative effects of past timber harvests, the Final Environmental Impact Statement should have provided adequate data of the time, type, place, and scale of past timber harvests and should have explained in sufficient detail how different project plans and harvest methods affected the environment.

Add the consequences of past actions.

y3 = y1 when the

consequences of the proposed

action do not add to anything

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The next y-value, y2, is the increment that the proposed action adds to what naturally occurs in the existing environment. Synonyms are used to emphasize that this is not the increment added to human-caused impacts: “Mother Nature,” background, baseline, naturally-occurring, and existing environment.

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CASE LIST: Cataloguing cases, time - type - place - scaleCEQ guidance memo on past actionsThe value at y3 is the increment added to the effects of past actions, which implicates the Lands Council case and CEQ’s guidance memo on cumulative impacts: CEQ, June 24, 2005, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis, <http://ceq.eh.doe.gov/nepa/regs/guidance.html>, as of November 2005

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y1

Existingy2

Past actions


y3Consult the “reasons to lump/reasons to split” table for the kinds of actions that must be included as “other present actions.” Add those that must be added, leave those out you may leave out — if that is your choice.

Proposed action

y4



to the impacts of past actions, other

present actions, and what was naturally

occurring.

y4 - y1 is

the “existing

environment” —

it

consists of what has

happened plus what is

happening

Add the consequences of other present actions.

y4 = y1 when the



x1

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Jump to next frame

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CASE LISTS: Actions casesThe value y4 is the incremental impact added to other present actions. Which “other present actions” are relevant is to be determined by ordinary principles of scoping after consulting a list of all the known reasons to consider other actions as well as to not to. The values y2, y3, and y4 — added together — constitutes what is usually depicted as the “existing environment” or the “affected environment.”

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CASE LIST: “Actions” module from NEPA models and case lists, Owen L. Schmidt.

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Add the consequences of reasonably foreseeable future

actions.

y5 = y1 when the





to the impacts of past actions, other

present actions, reasonably foreseeable

future actions, and what was naturally

occurring.

A reasonably foreseeable future action is one that has been proposed. It could be a similar action, a connected action, or a cumulative action.

y5 - y1 is

the “no-action

alternative” —

it consists

of everything that happens

without the proposed

action happening

x1

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y1

Existingy2

Past actions


y3

y4

y5

Mitigation actiony6


impact of the proposed action if

mitigation were adopted at the time of

the decision.

Add (subtract) the consequences of mitigation that is not already included in

the proposed action.

Mitigation that is included in the proposed action is already accounted for in y1


Proposed action

x1

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“Duty to investigate the possibility of mitigation.”

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The value y5 brings in reasonably foreseeable future actions. y2, y3, y4, plus y5 constitute what we usually designate the “no-action alternative.” It is the future without the proposed action (y1).

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CASE LIST: Mitigation as an alternativey6 adds or subtracts mitigation. If the value at y5 is not acceptable for any reason, then the sum total aggregate cumulative y-value can be changed by adding or subtracting at y6.

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Existing

Past actions



Proposed action

Mitigation action

If there is a level of concern, state what that is and how the values in the y-

axis compare: ConsistencyCompliance

CompatibilityConformity

y6 ! Lc when the value of the y-axis exceeds or falls short of

the level of concern

y1

y2

y3

y4

y5

y6

x1

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x3

y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

Consequence1

Existing

Past actions



Proposed action

Mitigation action

Consequence2

Existing

Past actions



Proposed action

Mitigation action

Consequence3

1. For each consequence of concern …

The perfect cumulative impacts analysis

2. Disclose all 6 y-values …

3. Disclose the level of concern, if any, and compare to y6.

x1 x2

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The last step in the analysis compares the value at the top of y6 to whatever “level of concern” (Lc) there may be for x, the “consequence of concern.” This step may be iterative with the step at y6. If for any reason the value at y6 is not acceptable, it can be changed by making alterations to y1 or to y6.

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The “perfect” cumulative impacts analysis: (1) for each consequence of concern the agency would (2) disclose all 6 y-values and then (3) disclose the comparison between y6 and the level of concern, if one exists.

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

Discussion point: is anything left out?

Nothing is left out. Or, what is left out?

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Existing

Past actions



Proposed action

Mitigation action

y1

y2

y3

y4

y5

y6

x1

7• Aggregative — Addition or

subtraction • Interactive — Synergism • Diachronic — Change over

time • Phase transition emergent

phenomenon — Change not predicted by prior change

Discussion point: it might not be simple addition …

.... and addition includes subtraction

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Disclosing all 6 y-values will capture all reasonably foreseeable consequences of action x. Or, to put it the other way around, what is left out?

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Method 1 Method 2 Method 3 Method 4 Method 5

Existing

Past actions



Proposed action

Mitigation action

y1

y2

y3

y4

y5

y6

Lump the components of the “affected environment”


Proposed action

Mitigation action

Lump the impacts of all actions that

may be “cumulative”

(except mitigation — which must be

kept separate)

Proposed action

Mitigation action

Existing

Lump the impacts of past,

other present, and reasonably

foreseeable future actions

Proposed action

Mitigation action

Individual action

Individual action

Individual action

Individual action

Individual action

Individual action

Individual action

Individual action

Individual action

Discussion point: choice of method for assessing cumulative impacts

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CASE LIST: Choice of methodsMethod 4 is the one that has been modeled. Method 5, which splits each category of action into its component parts, is the default method derived from case law such as Lands Council v. Powell. Method 2 is the method preferred by some agencies. Agencies choosing any method (perhaps other than Method 5) will have to disclose the reasons for their choice of method. 40 CFR 1502.24 (“identify any methodologies used”).

29

30

31

32

Discussion point: CEQ’s June 24, 2005, guidance memorandum

http://www.nepa.gov/nepa/regs/guidance.html

33

34

Details about individual past and

other present actions may safely

be omitted

Details about individual past and

other present actions must be

provided

Can the agency conduct an adequate cumulative effects

analysis by observing the current aggregate effects of past actions without delving into the historical details of individual past actions?

Would detailed information on past actions be useful when predicting the effects of a proposed action?

SCOPING: Can the agency determine in the scoping process and/or subsequent analysis that the “affected environment” is adequately described without details of individual past and other present actions?

With respect to past actions, during the scoping process

and subsequent preparation of the analysis, the agency

must determine what information regarding past actions

is useful and relevant to the required analysis of

cumulative effects. Cataloging past actions and specific

information about the direct and indirect effects of their

design and implementation could in some contexts be

useful to predict the cumulative effects of the proposal.

The CEQ regulations, however, do not require agencies

to catalogue or exhaustively list and analyze all

individual past actions.

Yes

Step 1

Yes

No

No

… review of past actions is

required to the extent that this

review informs agency

decisionmaking regarding the

proposed action.

YesNo

Agencies are not required to list or analyze the

effects of individual past actions unless such

information is necessary to describe the

cumulative effect of all past actions combined. The Supreme Court

has also emphasized that

agencies may properly

limit the scope of their

cumulative effects

analysis based on

practical considerations.

Kleppe, 427 U.S at 414.

In some cases, based on scoping, information

about the effects of past actions that were similar

to the proposed action may be useful in describing

the possible effects of the proposed action. In

these circumstances, agencies should consider

using available information about the effects of

individual past actions that help illuminate or

predict the direct or indirect effects of the

proposed action and its alternatives.

“I have determined in the scoping process and/or subsequent preparation that detailed information on past and other present actions would not be useful and relevant to the required analysis of cumulative impacts.”

Step 2

Step 3

“I find that the historical details of individual past actions and other present actions would not be useful for predicting the effects of the proposed action, or there are practical considerations that limit the scope of analysis to the current aggregate of effects.”

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

ReasonsIntensity

Context

Discussion point: we were going to do this anyway?

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Details about past actions may be omitted unless they may be … useful … relevant … necessary … informative.

35

Where “cumulative impacts” are relevant to the achievement of any standard (red bar), then x is the “what” and y is the “how much” to support any finding.

36

y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

Discussion point: for an EA/FONSI, x is the left column, the top of y6 is the middle column, and scale is expressed in y2 through y6 or with the red bar (??) ........

x1 y6What How much Reasons

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

y6

x1

Discussion point: for an EA/FONSI, if mitigation is necessary to reach a “mitigated FONSI,” the mitigation must be incorporated into y1, not y6.

Mitigation action

For a “mitigated FONSI” only mitigation that is

incorporated into the proposal can be counted on to avoid adverse

consequences

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An EA/FONSI, properly prepared, would allow a reader to fill in a 3-column table where the left column reveals “what” the impacts are, the middle column reveals “how much” or the size of that impact, and the right column would give the reasons those impacts of that size are “not significant.”

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Existing

Past actions



• No-action alternative

y1

Existingy2

Past actions


y3

y4

y5

y6

How much work is this?

• Existing condition• Affected environment

Proposed action

Mitigation action

• Proposed action alternative


Alternative action

Mitigation action

• Alternative action


Discussion point: we were going to do this anyway?

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y1

Existingy2

Past actions


y3


y4

y5

Mitigation actiony6

x1

Discussion point: when y1 = 0

If y1 = 0, there is no column because the proposed action could

not have an incremental impact

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The “affected environment” must be described, anyway. 40 CFR 1502.15. The “no-action alternative” must be described, anyway. 40 CFR 1508.25(b)(1). And the consequences of the proposed action and alternative action must be disclosed in a comparative form, anyway. 40 CFR 1502.14. Whether the consequences meet or exceed standards imposed for the protection of the environment must be disclosed, anyway. 40 CFR 1502.16.

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When y1 = 0, the “consequence of concern” has turned out to be non-existent. If there is no consequence of concern, there can be no incremental impact caused by the proposed action and thus there can be no so-called “cumulative impact.” Nor is there a direct or indirect impact. If y1 is ! 0, than any “impact” it causes will necessarily be “cumulative” with whatever other y-value is implicated.

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

Discussion point: when there is no “level of concern”

… and there is no “level of concern,” what is the meaning of y6?

When y1 ! 0…

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

Discussion point: what if x1 adds to x2?

Existing

Past actions



Proposed action

Mitigation action

x2

Then you haven’t yet gotten the right “x.” Make a new x3, if that is also a consequence of concern. Make a new x for every consequence of concern.

x3

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When y1 ! 0, and there is no level of concern, the only remaining reason to build a column graph would be to compare y6 for each alternative ….

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

Discussion point: when y6 is adverse

When y6 ! 0, and effects are adverse, these are “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. 4332(2)(C)(ii)

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y1

Existingy2

Past actions


y3


y4

Proposed action

y5

Mitigation actiony6

x1

Discussion point: what if the agency has no statutory authority to act on y5?

When y5 ! 0, and effects are adverse, and the agency has no power to mitigate, then the agency has no decision to make and thus is not the legal cause of the consequence and thus need not account for the consequence

>0

>0

>0

0

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When y1 ! 0, but y6 = 0, something obviously happened between y1 and y6 to cancel the impact. Most likely this is the mitigation at y6. When y6 ! 0 and is adverse, after mitigation, these are “adverse effects which cannot be avoided.” 40 CFR 1502.16.

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CASE LIST: Where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effectThis is why “Mitigation action” is placed at y6: we don’t know whether there is anything to “mitigate” until we know what all of the consequences are. What is the point of an agency assessing a consequence if the agency can do nothing about the consequence? But we have to assess it in order to know whether it is there at all. And it may be relevant, anyway, to the choice between alternatives. The purpose of NEPA is to inform agency decisionmaking ......

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y1

y2

y3

y4

y5

y6

x1

Discussion point: adding temporal scale

Temporal scale can be added to show the effects over time when

temporal scale is relevantTime

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Discussion point: comparing positive values and negative values would invite use of a bar chart or histogram ........

+

+

+

+

-

-

-

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Existing

Past actions



Proposed action

Mitigation action Colors are arbitrarily assigned from the longest

wavelength at the bottom to the shortest wavelength at the top ...... blue, green, yellow,

orange, red, violet.

y1

y2

y3

y4

y5

y6

x1

Discussion point: Graphical options: color coding and double-sided graph

Continued ...

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Existing

Past actions


Alternative A

- -

-

+

++

+++

++++

Existing

Past actions



Proposed action

Mitigation action

- – -

+++

- – -

-- – – -

0


- – -

-

Proposed action

Mitigation action

+++

+

Alternative B

Sum total aggregate cumulative effect is -

Sum total aggregate cumulative effect is 0

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NEPA Models and Case ListsSecond Edition

Owen L. Schmidt

[email protected]

http://www.nwetc.org/

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Documents

1. Would you want to know about the action itself? 2. Would m … · · 2012-06-16The vocabulary of NEPA: Proximate cause, cause-in-fact, chain of causation Cause-and-effect Chain