Sometimes the best lessons are those that you’ve not won. Like the time I tried to teach myself how to ski on icy New Jersey slopes—not a great idea. So the next time I ventured out, I went with some experts who patiently guided me through my mistakes so I could learn from them.
And this is what this article is about. Guiding you through others’ National Environmental Policy Act (NEPA) mistakes. When federal agencies lose NEPA-related court cases, these are some of the most common problems; we include project examples of how we’ve helped clients and partners like you.
1. Insufficient evaluation of direct and indirect environmental impacts
One of the common challenges in NEPA cases is whether the federal agency did a good enough job evaluating the impacts of the proposed project on the human environment.
Keep in mind that the human environment is defined rather broadly under the regulations to include the natural environment, historical/cultural resources, human health, and physical effects on low-income and minority populations.
The good news is that courts tend to defer to the federal agency if the agency used qualified experts, took a “hard look” at impacts, and/or made a fully informed and well considered approach.
- Use a reasoned and deliberate approach to include as much data as reasonably available when assessing impacts. Gulf Coast Rod, Reel and Gun Club, Inc. v. U.S. Army Corps of Eng’rs, No. 16-40181, 676 Fed. Appx. 245 (5th Cir. Jan 19, 2017).
- Provide an analysis in proportion to their significance. A brief discussion of other than significant issues may be sufficient. Central Oregon Landwatch v. Connaughton, No. 15-35089, 696 fed. Appx. 816 (9th Cir. Aug. 23, 2017).
If uncertain about the level of analysis, Scout can help to review similar issues of other regulatory agencies and bring in the qualified subject matter experts needed. For example, in a recent project we helped the Air Force develop an Environmental Assessment for the demolition, relocation, and construction of temporary and permanent facilities for the Special Operations Command. The proposed project involved the relocation/placement of 850 personnel, placement of temporary trailer space, and construction of a 100,000-square foot facility and associated improvements. Scout used a reasoned and deliberate approach to include as much data as reasonably available to assess the potential impacts (partial list) of the following:
- conducted air quality modeling in accordance with Air Force standards to assess impacts from construction vehicles (conducted air modeling analysis);
- reviewed recent biological and cultural resource information to assess associated potential impacts;
- assessed noise impacts related to construction;
- factored in transportation impacts due to increased personnel.
The resulting Environmental Assessment earned high praise from the client and did not generate public comments.
2. Insufficient evaluation of cumulative impacts
The purpose of a cumulative impacts analysis is to make sure that federal agencies not only look at the direct and indirect impacts of their proposed action BUT ALSO that federal agencies consider the combined impacts of their proposed action in addition to past, present, and reasonably foreseeable future actions.
Seems like a big piece to chew, which it can be.
The regulations provide some parameters which help. The cumulative effects must overlap in space and time. A good analogy is the construction of a new federal facility that may increase traffic and commuters in the local area. The report should factor past, present, and reasonably foreseeable actions that may increase the number of commuters in that area, and should include an agency’s list of proposed actions, actions where scoping has started, or some actions where budgets have been requested (again that overlap in space and time with your proposed project).
- Use a reasonable scope in your cumulative analysis. Don’t draw the geographic area of analysis too small.
- Be sure not to be vague and have conclusory statements without any supporting data. Western Watersheds Project v. Ruhs (Bureau of Land Management), No. 15-17031, 701 Fed. Appx. 651 (9th Cir. Jul. 18, 2017).
For a recent Veterans Affairs project in an urban setting, Scout prepared a comprehensive cumulative effects analysis. The primary concern was traffic, especially when the proposed action was combined with other projects (and their associated construction-related impacts) in the region. Our analysis made sure to capture all the relevant cumulative projects and clearly identify the potential impacts and conservation measures to minimize those impacts. The client appreciated the resulting cumulative impact section for its robust yet focused analysis, and there were no public or agency comments on the section.
3. Incomplete or unavailable information/uncertainty
This can be a hard one with projects that involve scientific data that does not have agreement within the scientific community, such as greenhouse gas emissions. Additionally, there are times when there is limited data available to conduct an environmental analysis, or it might be exorbitantly expensive to gather that data. During those times, here are some ways that can help:
- Acknowledge information that is incomplete or unavailable and discuss the relevance of that missing information to the analysis. National Mining Assoc v. Zinke, 877 F.3d 845 (9th Cir. 2017).
- Include language if developing an Environmental Assessment that the existence of “some” uncertainty does not necessarily require a lengthier Environmental Impact Statement. Wild Fish Conservation v. National Park Serv., No. 14-35791, 687 Fed. Appx. 554 (9th Cir. Apr. 18, 2017).
Use methods accepted by the scientific community and summarize credible scientific evidence about impacts. For example, one of Scout’s recent projects for the U.S. Marine Corps dealt with site-specific species data that was not available at the time of preparing the Environmental Assessment due to required survey dates and a lack of rain. Scout was able to use historic species survey data to generate a sufficient assessment of the potential presence of the species within the action area. The Environmental Assessment and Biological Assessment assumed species presence, and the U.S. Marine Corps agreed to perform surveys prior to construction and then abide by pre-determined mitigation requirements, reflective of the actual species population, as developed through consultation with the U.S. Fish and Wildlife Service (USFWS).
A key to this approach was being clear with counsel, the USFWS and in the Environmental Assessment of the data limitation and what steps would be taken to ensure compliance and mitigation. This approach was accepted by counsel and the USFWS and helped keep the project on-schedule.
Remember: if you’re already underway with your NEPA document, check with your agency counsel if you have any concerns about these particular sections in that document.
If you have questions before you start, contact us today to help guide you with your next NEPA win, where we do the heavy lifting so you know it’s getting done right: firstname.lastname@example.org