Ron Bass, J.D., AICP,Ron Bass, J.D., AICP,Senior Regulatory Specialist Senior Regulatory Specialist

Jones & StokesJones & Stokes

Common NEPA Mistakes and Common NEPA Mistakes and How to Avoid ThemHow to Avoid Them

January 17, 2008

Oregon Department of Oregon Department of TransportationTransportation

Workshop ObjectivesWorkshop Objectives

Review some of the most common mistakes that federal agencies make in implementing NEPA

Discuss how federal agencies can avoid such mistakes

Review how the courts have interpreted NEPA relating to these areas of practice

Common NEPA Mistakes

Forgetting NEPA’s Fundamental PurposeCommon NEPA Mistakes

Forgetting NEPA’s Fundamental Purpose

Why NEPA was necessary

NEPA’s objectives

NEPA’s policy language

How NEPA differs from other laws

Common NEPA Mistakes

Misunderstanding the Roles that Agencies Play in the NEPA Process

Common NEPA Mistakes

Misunderstanding the Roles that Agencies Play in the NEPA Process

Also “Participating

Agencies” under

(SAFETEA-LU)

Common NEPA Mistakes

Failure to Understand and Adhere to NEPA’s Procedural Process

Common NEPA Mistakes

Failure to Understand and Adhere to NEPA’s Procedural Process

Common NEPA Mistakes

Improperly Defining the “Proposed Action”Common NEPA Mistakes

Improperly Defining the “Proposed Action”

“Segmenting” a proposed action into parts to avoid or minimize NEPA review and evaluation

Failure to account for “related,” and “connected” actions

Common NEPA Mistakes

Misuse of Categorical ExclusionsCommon NEPA Mistakes

Misuse of Categorical Exclusions

Use of so-called “mitigated” categorical exclusions

Stretching categorical exclusions beyond what was intended

Failure to consider “extraordinary circumstances”

Failure to document the CATEX

Failure to complete consultations under other laws

Common NEPA MistakesPre-determining That an EIS Will Not be Necessary,

Then Trying to Justify Such Conclusion After-the-Fact

Common NEPA MistakesPre-determining That an EIS Will Not be Necessary,

Then Trying to Justify Such Conclusion After-the-Fact

“No way we need an

EIS for this project….!”

FONSI

Common NEPA Mistake

Improper use of Environmental AssessmentsCommon NEPA Mistake

Improper use of Environmental Assessments

Forgetting the purposes of an EA Provide sufficient evidence to determine whether or not an

EIS required Supporting the decision to prepare a FONSI Facilitate preparation of EIS when required

Using the EA as a “surrogate” for an EIS

Common NEPA Mistakes

Failure to Explain and Support Conclusions in an EA

Common NEPA Mistakes

Failure to Explain and Support Conclusions in an EA

Failure to use and/or explain the “context” and “intensity” criteria that define “significance”

Failure to rely on established thresholds to determine “significance” or “non-significance”

Failure to take a “HARD LOOK” at the environmental impacts of a proposed action

Common NEPA Mistakes

Inadequate Scoping Common NEPA Mistakes

Inadequate Scoping

Insufficient public involvement

Failure to listen to people’s suggestions

Common NEPA Mistakes

Inadequate Agency Consultation Common NEPA Mistakes

Inadequate Agency Consultation

Failure to consult with “cooperating” and other agencies

Failure to heed the advice and comments of “cooperating” and other agencies

Failure to properly document the consultation

Common NEPA Mistakes

Failure to Build the “Administrative Law Pyramid”

Common NEPA Mistakes

Failure to Build the “Administrative Law Pyramid”

FONSI does not provide reasons

FONSI not supported by EA

EA lacks data, analysis, explanations

Common NEPA Mistakes

Insufficient and Inconsistent Public Notice and Review EA/FONSI

Common NEPA Mistakes

Insufficient and Inconsistent Public Notice and Review EA/FONSI

Common NEPA Mistakes

Inadequate TieringCommon NEPA Mistakes

Inadequate Tiering

Common NEPA Mistakes

Improper Statement of Purpose and NeedCommon NEPA Mistakes

Improper Statement of Purpose and Need

Failure to explain the underlying reason why the action is being proposed

Failure to support the “purpose and need” with substantial evidence

Common NEPA Mistakes Misunderstanding Alternatives

Common NEPA Mistakes Misunderstanding Alternatives

Uncertainty about when alternatives must be evaluated in an EA

Inadequate range of alternatives

Alternative does not satisfy “Purpose and Need”

Alternative does not avoid any impacts

Alternative not feasible

Eliminated alternatives not explained

Common NEPA MistakesCommon NEPA Mistakes

Using an improper baseline for impact analysis

Scenario 1: Baseline, No-Action, Proposed Action—Typical Situation

N-99

Scenario 2: No-Action Alternative Same as Baseline

N-100

Scenario 3: No-Action Alternative Worse than Proposed Action

N-101

Common NEPA Mistakes

Inadequate Impact AnalysisCommon NEPA Mistakes

Inadequate Impact Analysis

Failure to consider foreseeable indirect effects

Bad data/ old data/ no data

Improper methodology

Failure to “show your work”

Data not properly “incorporated by reference”

Common NEPA Mistakes

Improper Evaluation of “Induced-Growth”Common NEPA Mistakes

Improper Evaluation of “Induced-Growth”

          

Common NEPA Mistakes

Inadequate Evaluation of Cumulative ImpactsCommon NEPA Mistakes

Inadequate Evaluation of Cumulative Impacts

Accounting for impacts of “past projects”

Predicting “reasonably foreseeable future projects”

Determining a project’s contribution to the cumulative impact

Likely to Become a Common NEPA Mistake

Likely to Become a Common NEPA Mistake

Inadequate evaluation of Greenhouse Gases and their effects on Global Climate Change

Common NEPA Mistakes

Inadequate Evaluation of Environmental Justice

Common NEPA Mistakes

Inadequate Evaluation of Environmental Justice

Failure to determine disproportionate impacts of low-income and minority populations

Inadequate documentation of analysis methods

Inadequate outreach to low-income and minority communities

Common NEPA MistakesInadequate Mitigation Measures(particularly to support a FONSI)

Common NEPA MistakesInadequate Mitigation Measures(particularly to support a FONSI)

Mitigation measures do not meet NEPA definition

Mitigation measures are not specific

Mitigation measures are “deferred” to the future

Common NEPA Mistakes

Failure to Integrate Other Laws with NEPACommon NEPA Mistakes

Failure to Integrate Other Laws with NEPA

Ignorance of other legal requirements

Lack of an “environmental compliance strategy”

Inadequate or late consultation

Not listening to other agencies

Misunderstanding the differences between NEPA and other analysis requirements

Requirement Scoping Process Draft Document Final Document

Decision Making

NEPA Notice of Intent Draft EIS Final EIS Lead Agency issues and Record of Decision

State Mini NEPA

Notice of Preparation Draft EIR Final EIR Notice of Determination

Endangered Species Act Sec. 7

Request species list Biological Assessment

Biological Opinion

Clean Water Act Sec. 404

Define objectives: Screen alternatives; Submit permit application

Draft Sec. 404(b)(1) analysis

Final Sec. 404(b)(1) analysis

Corps of Engineers issues Sec. 404 permit (after Sec. 401 certification of waiver)

National Historic Preservaton Act Sec. 106

Identify and evaluate historic and archaeological properties

Draft effects assessment

Memorandum of Agreement

Clean Air Act Conformity (non-transportation project)

Determine whether the conformity requirement applies

Preliminary analysis (comparison to de minimis levels)

Detailed modeling analysis if necessary

Federal agency issues conformity determination

Public involvement

Scoping meetings Public comment; Public hearing

Public comment

Common NEPA Mistakes

Inadequate Administrative RecordCommon NEPA Mistakes

Inadequate Administrative Record

Misunderstanding the concept and importance of the AR

Failure to save everything supporting a decision

Failure to save as you go

Common NEPA Mistakes

Doing Too Little or Too MuchCommon NEPA Mistakes

Doing Too Little or Too Much

“Bare legal minimum”—The federal agency does as little analysis as possible to satisfy NEPA’s legal requirements (i.e., it creates a document that meets the “letter of the law”).

“Good practice”—The federal agency attempts to fully integrate NEPA into its decision process, focusing on issues that are important to the decision process and relevant to the potential environmental effects of the proposed action, and carries out the law in ways that best meet NEPA’s objectives (i.e. it creates a document that meets the “spirit of the law”).

“Overkill”—The federal agency studies everything it can, in as much detail as possible, often under the belief that this will ward off legal challenges (i.e., it creates a “bulletproof” document).

Common NEPA Mistakes

Failure to Evaluate the Risks of Non-Compliance

Common NEPA Mistakes

Failure to Evaluate the Risks of Non-Compliance

…………And, finally, don’t just comply with And, finally, don’t just comply with the letter of the law, but also the the letter of the law, but also the

SPIRIT OF NEPA SPIRIT OF NEPA