Summary of NEPA and SEPA

1. Summary of NEPA and SEPA Coastal Engineering and Land Use Issues in North Carolina Greenville, NC January 13, 2009 Sean M. Sullivan

2. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

3. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

4. Summary of the Acts • National Environmental Policy Act • 42 U.S.C. § 4321, et seq. • Purpose – Ensure that federal agencies investigate and consider the environmental consequences of their actions. • Environmental Impact Statement (“EIS”).

5. Summary of the Acts (cont’d) • North Carolina Environmental Policy Act (“SEPA”). • N.C.G.S. § 113A-1, et seq. • Purpose – Require state agencies to consider and report on the environmental consequences of their actions.

6. Summary of the Acts (cont’d) • Both statutes are procedural in nature. • They force federal and state agencies to evaluate and consider the effects of their actions. • Neither statute requires an agency to alter its plans based on the results of the analysis.

7. Summary of the Acts (cont’d) • Implementing Regulations – for both NEPA and SEPA, individual agencies have their own procedural regulations in addition to the general regulations. • Compliance with NEPA will satisfy SEPA as well.

8. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

9. Applicability • NEPA – a federal agency must prepare an EIS for any: • “Major federal action significantly affecting the quality of the human environment.” (MFASAQHE). • Can apply to: • Internal policy decisions • Rulemakings • Permitting Decisions

10. Applicability (cont’d) • Determining whether NEPA Applies • Rule – if the effects of an action will not rise to the level of a MFASAQHE, an EIS is not required. • Procedure • Some actions are designated as requiring an EIS by regulation; or • An agency can perform an Environmental Assessment (“EA”) to determine if an EIS is necessary; or • An agency can establish Categorical Exemptions from NEPA for certain actions.

11. Applicability (cont’d) • Three Criteria for SEPA to Apply: • State Actions; • That will significantly affect the quality of the human environment; and • Involve either: • Expenditures of public money; or • Use of State Land

12. Applicability (cont’d) • Determining whether SEPA Applies • Same basic format as for NEPA • SEPA has Minimum Criteria rather than Categorical Exemptions. • Minimum Criteria • In order for an action to be exempt, it must satisfy both: • General minimum criteria; and • Specific minimum criteria.

13. Applicability (cont’d) • When in doubt, do an EA. • For NEPA and SEPA. • Goal - Determine whether to prepare an EIS. • An EA analyzes the environmental effects of a project, but the question is the extent of the effects.

14. Applicability (cont’d) • Effects to consider in the EA: • Direct effects – immediate consequences of the proposed action. • Indirect effects – reasonably foreseeable effects of the proposed action. • Cumulative effects – effect of the proposed action when combined with other existing or planned actions.

15. Applicability (cont’d) • Two Choices Based on Result of EA: • Finding of No Significant Impact (“FONSI”). • No EIS required. • Proposed action requires an EIS.

16. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

17. What’s Required • The lawyer’s answer – It depends. • Two basic paradigms: • If NEPA applies to the proposed action, follow the NEPA Paradigm. • If NEPA does not apply to the proposed action, but SEPA does, follow the SEPA Paradigm.

18. What’s Required (cont’d) • The NEPA Paradigm • Recall that if both NEPA and SEPA apply to an action, compliance with NEPA will satisfy SEPA as well. • Caveat – If SEPA applies, you must submit your NEPA documents for distribution through the NC clearinghouse process. • Consult the agency’s regulations to determine how to proceed (EIS, EA, or Categorical Exemption).

19. What’s Required (cont’d) • The SEPA Paradigm • State agencies typically prepare an EA before doing an EIS. • But, they have discretion to proceed directly to an EIS. • State agencies document their review of the EA and/or EIS and their ultimate decision in a Record of Decision (“ROD”).

20. What’s Required (cont’d) • The Mitigation Concept • The proponent can mitigate the effects of a project to the point that an EIS is not required and a FONSI is appropriate. • Mitigation steps must be legally binding. • Example – incorporation of mitigation requirements into a final permit.

21. What’s Required (cont’d) • The Mitigation Concept (cont’d) • Examples of Mitigation • Refraining from certain actions to limit the effects of a project. • Repairing or rehabilitating the environment. • Compensating for the effects through other actions.

22. What’s Required (cont’d) • Required Content of the EIS • Purpose and need for the project; • Description of the affected environment; • Effects of the project (direct, indirect, cumulative); and • Alternatives analysis (including no action).

23. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

24. The Process • NEPA Procedures • For NEPA, the level of public interest in a project can affect the process. • Some public notices are mandatory and some are discretionary. • EA/FONSI – Public notice is discretionary.

25. The Process (cont’d) • NEPA Procedures (cont’d) • For an EIS, public notice and comment on the draft EIS is mandatory. • Timing Constraints • Comment period on draft EIS must be at least 45 days. • No final decision until at least 90 days have passed since publication of the notice of availability regarding the draft EIS. • Notice of availability for final EIS must be published at least 30 days prior to agency’s final decision.

26. The Process (cont’d) • NEPA Procedures (cont’d) • Judicial Review • Done as part of judicial review of overall agency action. • Standard – courts apply deferential “arbitrary and capricious” standard of review. • Caveat – courts must ensure that the agency took a “hard look” at the consequences of the proposed project.

27. The Process (cont’d) • NEPA Procedures (cont’d) • SEPA Clearinghouse Requirements • If SEPA applies to your project as well as NEPA, you must distribute the NEPA documents through the clearinghouse process.

28. The Process (cont’d) • SEPA Procedures • NC Department of Administration Clearinghouse Procedures • EAs, FONSIs, draft EISs and final EISs must be distributed through this procedure. • Affords other state agencies the opportunity to comment. • Initiates a public comment period as well.

29. The Process (cont’d) • SEPA Procedures (cont’d) • Judicial Review • Compliance with SEPA is reviewed during review of overall agency action. • Standard – courts apply deferential “arbitrary and capricious” standard of review. • First step is to file a contested case with the Office of Administrative Hearings.

30. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

31. Practical Considerations • Scoping – Purpose and Need • The questions you ask determine the answers that you get. • Other Consultation Statutes May Apply • National Historic Preservation Act • Can incorporate into NEPA review. • Endangered Species Act • May need consultations with US Fish and Wildlife Service. • May affect availability of categorical exemptions.

32. Practical Considerations (cont’d) • Dot your “I’s” and cross your “T’s” • NEPA compliance is a favorite for environmental groups opposed to a project. • Ultimately, the statutes are procedural and compliance is within your control.

33. Contact Information Sean M. Sullivan Williams Mullen 3200 Beechleaf Court, Suite 500 Raleigh, NC 27604 (919) 981-4312 ssullivan@williamsmullen.com www.williamsmullen.com