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Environmental Law and Planning for the Public Affairs Professional

Environmental Law and Planning for the Public Affairs Professional. Pam Ellen Hudson, Esq. Asst. Counsel (Environment) Civil Engineer Corps Officers School (CECOS) pam.hudson@navy.mil Register for classes at: https://www.netc.navy.mil/centers/csfe/cecos. Objectives!.

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Environmental Law and Planning for the Public Affairs Professional

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  1. Environmental Law and Planning for the Public Affairs Professional

  2. Pam Ellen Hudson, Esq.Asst. Counsel (Environment) Civil Engineer Corps Officers School (CECOS)pam.hudson@navy.milRegister for classes at:https://www.netc.navy.mil/centers/csfe/cecos

  3. Objectives! • Understand why NEPA was enacted ( in order to empower public affairs personnel to foster transparency on environmental issues) • Learn the goals of NEPA and what happens if the DoN does not comply (so you can promote partnerships “beyond the fenceline”) • Understand the overarching NEPA and EO 12114 Framework (so you can engage the workforce on environmental stewardship matters)

  4. Environmental Public Affairs Support Some days it’s a really cool job!!! A bottlenose dolphin leaps out of the water while training near USS Gunston Hall (LSD 44) in the Arabian Gulf during Operation Iraqi Freedom. It is wearing an acoustic tracking device on its fin.

  5. Some days it’s not!!! Public Affairs Environmental Support A 40 ton sei whale, being necropsied by the Virginia Marine Science Museum's stranding team (Feb ’03) at the Little Creek Naval Amphibious Base Officer’s beach.

  6. Why is subject important?Why do we care?What is the role of the Environmental Attorney?

  7. How do we even have environmental laws?? The Constitution? Life – Liberty – the Pursuit of Happiness? If it’s not in the constitution, how can we have environmental laws?

  8. Political Activism: The 60’s

  9. A Silent Spring "The sedge is wither'd from the lake, And no birds sing.“ - John Keats "La Belle Dame sans Merci"

  10. Uncle Sam Reacts U.S. Environmental Laws • NEPA (1969) • CAA (1970) • CWA (1972) • ESA (1973) • MMPA (1972) • CZMA (1972) U.S. EPA formed 1970

  11. Federal Environmental Legislation

  12. Federal Agencies Have Significant Environmental Responsibilities

  13. The National Environmental Policy Act (NEPA) • 42 U.S.C. Secs. 4321-4347 • Known as NEPA, almost 40 years in existence • National Charter for protection of the Nation’s environment and living resources • Establishes a national environmental policy to promote wise use and planning for environment by Federal Agencies • Provides statutory basis for review of Federal decisions that impact the environment • Created Council on Environmental Quality (CEQ); CEQ Regulations found at 40 CFR Sec 1500 • Procedural Law-Follow the correct process

  14. The National Environmental Policy Act (NEPA) • US Army – 32 CFR 651 (AR 200-2) • US ACE – 33 CDR 230; see also 33 CFR 325 • US Air Force – 32 C.F.R. 989 and 64 F.R. 38127 • USCG – COMDTINST M16475.1D • US Navy – 32 CFR 775 (SECNAVINST 5060.6A) • USMC – 32 CFR 775 (SECNAVINST 5090.6A) • NASA – 14 CFR 1216 and 53 F.R. 9759 • US DOJ – 28 CFR 61 (and appropriate Appendices) http://www.nepa.gov/nepa/regs/agency/agencies.cfm

  15. NEPA’s Twin Objectives: Environmental Impact Analysis and Public Participation • Full disclosure, analysis and consideration of environmental information as a criteria within Federal agency decision making • Preventing environmental damage • Agencies must inform the public of potential impacts and alternatives and involve the public in decision making • Ensuring agency has taken environmental factors of concern to public into account • This is to lead to better governmental decision-making within our Republic

  16. The National purpose of planning for environmental protection is achieved by: • Requiring the Federal agency to… “..utilize a systematic, interdisciplinary approach to ensure the integrated use of the natural and social sciences, and the environmental design arts in planning and decision making, where Federal actionsmay have an impact on the environment.” NEPA § 102

  17. NEPA as an “Umbrella” for Other Laws & Regs • National Historic Preservation Act of 1966 • Protection of Historic and Cultural Properties • Native American Graves Protection and Repatriation Act (NAGPRA) • Archaeological Resources Protection Act of 1979 • Executive Order 13007 • American Indian Religious Freedom Act • Executive Order 11593 • Federal Aviation Act of 1958 • Federal Aviation Regulation (Parts 71, 73, and 91) • FAA Handbook Parts 7400.2C and 7110.65 Airspace Cultural Resources • Federal Water Pollution Control Act of 1948 • Clean Water Act of 1977 • Executive Order 11988 (Floodplain Management) • Safe Drinking Water Act of 1974 Water Resources Air Quality • Resources Conservation & Recovery Act of 1976 • Solid Waste Disposal Act & Amendments of 1980 • Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, and SARA of 1986 • Clean Air Act • Executive Order 12088 (Pollution Control Standards) Materials • Executive Order 12898 (Environmental Justice) Environmental Justice • Endangered Species Act of 1973 • Fish and Wildlife Conservation Act • Migratory Bird Treaty Act of 1972 • Executive Order 11990 (Protection of Wetlands) • Bald Eagle Protection Act Biological Resources

  18. Overlapping Requirements Agency Timeline Product Agency Law Drivers “may affect” protected species or critical habitat Biological Opinion (BO) ESA NMFS (Marine) USFWS (Terrestrial) 135 days (min) Letter of Authorization (LOA) likely to result in marine mammal takes 14 mos. (min) MMPA NMFS State Coastal Authority likely to be coastal effects Consistency Determination CZMA 90 days Concurrent with NEPA Process

  19. When does NEPA apply? • Whenever agencies propose to take “major Federal actions significantly affecting the quality of the human environment”: • Major Federal actions: policies, plans, programs and projects • Significantly: context and intensity • Affecting: will or may have an effect • The human environment: the natural and physical environment • This has led to a system of tiered levels of analysis to determine the significance of impacts by the action on the environment

  20. The NEPA Analysis Trigger • Whenever agencies propose to take an action with the potential to affect the natural and physical environment • In other words, Federal actions that can be new or ongoing with the potential to effect national environmental resources

  21. Levels Of NEPA Analysis and Process The requirement to conduct impacts analysis has led to a three-tiered system of documentation and analysis, each with its own required level of analysis, degree of public participation and type of decision making document ultimately used. They are: Categorical Exclusion (CATEX, CE); Environmental Assessment (EA); and, Environmental Impact Statement (EIS).

  22. Categorical Exclusion (CATEX) • Each Agency promulgates own list of CATEXs through rule-making • This is related to the Agency mission and routine types of actions • These categories of action do not have significant effects on the environment, either individually or cumulatively • Document in a 1-2 page memo signed at the local CO level • The use of a CATEX excludes the action from further environmental analysis • Where action falls within CATEX but “extraordinary circumstance exists”, CATEX cannot be used

  23. CATEX cannot be used where “Extraordinary Circumstance” exists • Affects public health or safety • Where Resource Agency determines may have potential for significant impacts on: wetlands, endangered or protected species, cultural resources, protected resources, or hazardous waste sites • Uncertain risks, scientific controversy • Establishes a precedent for future actions • May violate a local, State or Federal environmental law or requirement • Additional warnings in each Agency’s regulations

  24. Environmental Assessment (EA) • Used when agency does not know beforehand whether or not the proposed action will significantly affect the environment • Analysis discusses: • Proposed action, purpose and need, alternatives, affected environment and anticipated impacts; Consultation with Resource Agencies • Result is Finding Of No Significant Impact (FONSI) or decision to prepare EIS • May mitigate level of impacts down to FONSI • Public participation is at the discretion of the decision-maker and advice from team preparing the document • Signed out at the Flag/SES level

  25. Environmental Impact Statement (EIS) • The EIS is prepared where the Federal action has the potential for significant environmental impacts • Comprehensive analysis includes: • Impacts (direct, indirect and cumulative), • Actions (connected, cumulative and similar) • Reasonable alternatives

  26. Reasonable Alternatives Analysis • Shows the comparison between all ways to conduct the action to fulfill purpose and need • Analysis developed from affected environment: area where impact will be located-all ecology, natural resources, protected resources, historic and cultural resources, media • Analysis from environmental consequences: scientific and analytic comparison of all impacts from range of alternatives

  27. Also Included in Document: • Purpose and need of proposed action • Results from consults with other Federal Agencies where they have jurisdiction by law or special expertise over a resource or issue • Special coordination with Cooperating Agency • Coordination with interested parties, public, state and local governments, Indian tribes • Executive summary, technical data for appendices

  28. Environmental Impact Statement Requires Public Participation • Start with Notice of Intent • SCOPING - early and open process to determine scope of issues to be addressed and to identify the significant issues related to a proposed action • As part of process, Agency: • Invites affected Federal, State and local agencies, affected Indian Tribes, and other interested parties to participate • Following DEIS publication, re-invite comments at formal public hearing • Record of Decision signed out by Secretariat is published in Federal Register

  29. The Record of Decision (ROD) • Following FEIS, ROD is designed to ensure that Agency decision-makers explain the decision to the Nation • Concise public document that states the decision and identifies all alternatives including environmentally preferable alternative • Reveals whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why not • Adopts and summarizes a monitoring and enforcement program for any mitigation measures

  30. Proposed Action Yes CATEX available Record/Memo to File Categorical Exclusion No Overview of the NEPA Process - Extraordinary Circumstance - No CATEX exist Environmental Assessment Finding of No Significant Impact (FONSI) Yes FONSI prepare and proceed No - Significant Impact Revealed - Inability to mitigate impacts Notice of Intent Draft EIS Final EIS Record of Decision (ROD) prepare and proceed Scoping Process Public Comment

  31. Collaborative Approach to NEPA CEQ Handbook Collaboration in NEPA (October 2007) Only works when there is sufficient decision space - room for parties to mold the solution that meets their needs Why? Brings in more transparency to the process Broader agreement (the "buy in") Reduces conflicts Expediting the NEPA process Different Approaches (for example, in the area of alternatives) Public workshops to discuss draft alternatives and how they can be improved. Working with advisory committees or other existing stakeholder groups to identify and refine alternatives, or ID effects, etc.

  32. Tiering and Programmatic Documents • Stepped approach to analysis by using other documents to develop current analysis • Incorporates previous findings by reference • Allows action proponent and decision maker to complete the analysis at varying stages of action development • Programmatic documents also encouraged

  33. Agency Discretion: Informed Decision-making • The Agency may chose, using its informed discretion, what level of NEPA review is required • The Agency may select whichever alternative it prefers, where it understands and is informed consequences of the action • The Agency may select an alternative other than the least damaging alternative where the decision maker has considered the environmental effects of the action-”Hard Look” standard

  34. Inter-Agency Consultation • Other agency’s may be responsible for reviewing or sharing in the preparation of NEPA documents and procedures: • Cooperating agency’s- “special jurisdiction” and where law details must consult: ESA, NHPA, MMPA, CAA Conformity Review • Appropriate State and local agencies authorized to develop and enforce environmental standards • Indian tribes • Any other agency requesting • EPA reviews EIS and rates analysis

  35. Challenging Agency Action • Challenges brought under the Administrative Procedure Act • Administrative Record • Standing • Standard of review: arbitrary and capricious, an abuse of discretion, or otherwise contrary to law • Injunctive relief; attorney fees • Basis of challenge usually inadequacy of environmental analysis, unreasonable or no rationale for decision, failure to follow procedures

  36. Consequences • Injunction • Penalties • Politics • Public relations

  37. A Lot Of Water

  38. Readiness Costs • Low Frequency Active Sonar: • 6 year delay; $10 million Scientific Research Project. • Deployed already by Russia and France. • JOHN PAUL JONES Ship Shock: • Coordinated with regulators, sued by activists. • Settlement delayed test 30 days. • $3 million dollars cost. • Final location more populated. • CHURCHILL Ship Shock: • $1.6 million cost for EIS. • TAP – Range Documents • $98 million for environmental planning & compliance documentation

  39. Denial - The initial stage This can't be happening Anger Why is this happening to me? It's not fair Bargaining I promise to be a better person (Navy) if ... Depression I'm so sad, I don’t care anymore Acceptance It's going to be OK – I’m ready for whatever comes Stages of Grief Kübler-Ross Model Dr. Elizabeth Kübler-Ross On Death and Dying (1969)

  40. Additional “At Sea” Planning and Policy Documents – Navy and Marine Corps • 28 Dec 00 “At Sea Policy” • OPNAVINST 5090.1C (Ch. 5); MCO P5090.2B • 23 Dec 04 CNO (N45) Supplemental Environmental Planning Policy • March 2006 CNO (N45) MFA Sonar Effects Analysis Interim Policy • April 2007 CNO (N45) Update to MFA Sonar Effects • Navy/NOAA Ltr Agreement (2005)

  41. Environmental Planning Outside US Territory • NEPA itself does not apply abroad-12nm inward to shoreline • Executive Order 12114, Environmental Effects Abroad, governs environmental planning abroad • “NEPA-like analysis” for actions that significantly harm the environment outside the U.S. • Impacts Analysis only: No required public involvement and no Judicial Review • Series of analytic documents to prepare depending upon where the impact exists

  42. Where Does E.O. 12114 Apply? • The global commons • The environment of a foreign nation that is not participating or otherwise involved in the action • The environment of a foreign nation by use of toxic or radioactive substances • Those resources of global importance

  43. Applicability At Sea ESA & MMPA Foreign Nation EEZ 200 NM US EEZ 200 NM Foreign Territorial Waters 12 NM US Territorial Waters 12 NM Foreign Nation United States Global Commons CZMA NEPA EO 12114

  44. Mandate of E.O. 12114 and Appendix E (OPNAVINST 5090.1C) • A Command proposing a major Navy action that has the potential to significantly harm the environment outside the United States, shall, before they go forward with an action or eliminate a reasonable alternative, complete a: • Overseas Environmental Impact Statement (OEIS) • Overseas Environmental Assessment (OEA) • Environmental Review (ER) • Environmental Study (ES)

  45. Selecting the Proper Document • Selection is based upon where the impact will occur • Global Commons or US 12nm seaward to EEZ? • OEA (potential), OEIS (will harm) • Environment of a non-participating/non-involved foreign nation? Environment of a foreign nation where action involves toxics/radioactives? Natural or ecological resources of global importance? • ER if unilateral • ES if bilateral or multilateral • Most Navy EAs and EISs are hybrid documents: • EIS/OEIS and EA/OEA

  46. Take Aways This is a complex issue • We’re exposed to liability • The Navy is NOW trying to lead environmental compliance • Liaise with the environmental attorneys now! • Strategic Environmental Communication is of paramount importance

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