Ron Bass, J.D., AICP, Senior Regulatory Specialist Jones & Stokes

Oregon Department of Transportation Common NEPA Mistakes and How to Avoid Them January 17, 2008 • Ron Bass, J.D., AICP, • Senior Regulatory Specialist • Jones & Stokes

Workshop 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 MistakesForgetting NEPA’s Fundamental Purpose • Why NEPA was necessary • NEPA’s objectives • NEPA’s policy language • How NEPA differs from other laws

Common NEPA MistakesMisunderstanding the Roles that Agencies Play in the NEPA Process • Also “Participating • Agencies” under • (SAFETEA-LU)

Common NEPA MistakesFailure to Understand and Adhere to NEPA’s Procedural Process

Common NEPA MistakesImproperly 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 MistakesMisuse 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 “No way we need an EIS for this project….!” FONSI

Common NEPA MistakeImproper 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 • 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 MistakesInadequate Scoping • Insufficient public involvement • Failure to listen to people’s suggestions

Common NEPA MistakesInadequate 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 MistakesFailure to Build the “Administrative Law Pyramid” • FONSI does not provide reasons • FONSI not supported by EA • EA lacks data, analysis, explanations

Common NEPA MistakesInsufficient and Inconsistent Public Notice and Review EA/FONSI

Common NEPA MistakesInadequate Tiering

Common NEPA MistakesImproper 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 • 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 Mistakes Using an improper baseline for impact analysis

Common NEPA MistakesInadequate 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”

CommonNEPA MistakesImproper Evaluation of “Induced-Growth”

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

Common NEPA MistakesInadequate 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) • Mitigation measures do not meet NEPA definition • Mitigation measures are not specific • Mitigation measures are “deferred” to the future

Common NEPA MistakesFailure 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

Common NEPA MistakesInadequate 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 MistakesDoing 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 MistakesFailure to Evaluate the Risks of Non-Compliance

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

Ron Bass, J.D., AICP, Senior Regulatory Specialist Jones & Stokes