National Environmental Policy Act (NEPA) & Washington State Environmental Policy Act (SEPA)

1. National Environmental Policy Act (NEPA) &Washington State Environmental Policy Act (SEPA) University of Washington Environmental Law and Institutions November 2011

2. Comparison of NEPA & SEPA

3. NEPA Mandates • Supplemental mandate • Adds to the existing authority of every federal agency the responsibility and power to protect the environment and integrate environmental, social, and economic objectives • Affirmative mandate • To preserve existing environmental quality • And restore and enhance the environment • Procedural mandate • to use a planning and decision-making process for developing or considering the approval of plans, policies, programs or projects that gives "appropriate consideration to environmental values and amenities.“ • Analysis of environmental impacts, alternatives, and mitigation measures • Substantive mandate —the responsibility to "act" to protect the environment • Integration mandate • To take the environmentally preferred course of action unless it poses a conflict with other essential policies • In which case the decision-maker looks to the substantive policies of NEPA as guidance for integrating varied considerations and making decisions directed toward achieving a productive harmony between people and nature

4. NEPA Policy § 101(42 USC § 4331) • Create and maintain conditions under which man and nature can exist in productive harmony • Includes enhancement • Federal responsibility to use all practicable means to improve and coordinate Federal plans, functions, programs, and resources • Fulfill each generation’s trustee responsibilities • Assure for all safe, healthful, productive, esthetically, and culturally pleasing surroundings • Each person responsible for contributing to preservation and enhancement of the environment • Each person should enjoy a healthful environment • Each person has a responsibility contribute to preservation and enhancement

5. NEPA Policy Court Elaboration • Calvert Cliffs’ Coordinated Committee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971) • Substantive policy in Section 101 is flexible, may not require particular substantive results • Procedural provisions in Section 101 designed to ensure all federal agencies exercise substantive discretion given them • Compelled to take environmental values into account • Procedures to be carried out to the fullest extent possible

6. NEPA Policy Court Elaboration (Continued) • Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) • Significant substantive goals, but mandate to agencies is essentially procedural • Purpose is to ensure a fully informed and well-considered decision • No substantive duty to mitigate adverse impacts or to include fully developed mitigation plan in EIS. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)

7. When is an EIS to be prepared?§ 101 (42 USC § 4332) • Major Federal action. Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974) • Consider both magnitude of federal action and impact • NEPA is concerned with indirect effects • Small Federal Handle Issue • If federal participation in a project is so substantial that the state should not be allowed to go forward until all federal approvals have been granted in accordance with NEPA • 404 permit for 3.58 acre fill does not federalize 22.5 light rail line • Must consider connected actions. Blue Ocean Preservation Society v. Watkins, 745 F. Supp. 1450 (D. Haw. 1991) • Wide range of actions • Statutory exemptions: • Judicial or administrative enforcement actions • General revenue sharing funding assistance

8. When is an EIS to be prepared?(Continued) (40 C.F.R. § 1508.27) • Significantly • Context • Societal and environmental framework in which the action will occur • Intensity • Public health and safety impacts • Unique characteristics • Controversy • Uncertain or unknown risks • Cumulative effects • Adverse effects on endangered or threatened species • Violation of federal, state, or local law

9. Significant Federal Action (continued) • Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) • Almost every federal action has some adverse effect, but Congress did not mean that all actions need an EIS • If controversial then EIS • Substantial dispute as to size, nature, or effect • Consider to the extend impacts exceed that of existing uses • Absolute quantitative adverse environmental impacts • In doubtful cases agencies will prepare EISs rather than risk protracted litigation

10. When is an EIS to be prepared?(Continued) • Affecting the quality of the human environment • Physical environment, not mental • Must take into account both beneficial and adverse impacts • But you cannot reduce the adverse impacts by the positive impacts

11. Documenting Threshold Determination • Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) • Agencies must affirmative develop a reviewable record • Must give the public notice and an opportunity to submit relevant facts which might bear on decision • Environmental Assessment (EA) is the way this is usually done

12. Environmental Analysis (EA) & Categorical Exclusions • Adequacy of EAs can be reviewed, even if an EIS would not be required • EAs typically include • Analysis of alternatives • Mitigation measures • Public involvement • Categorical Exclusions • Adopted by regulation • Actions that individually and cumulatively do not have a significance effect on the human environment • So no documentation, no EA required. But must still comply with NEPA • Must do EA if extraordinary circumstances

13. Findings of No Significant Impact (FONSI) • Findings of no significant impact (FONSIs) based on EAs • Mitigated FONSIs can be used to limit adverse environmental impacts • Thirty day public comment period required if: • Similar to an action that requires an EIS • Unprecedented agency action

14. What is an EIS?§ 101 (42 USC § 4332) • A detailed statement • On the environmental impact of the proposed action • Any adverse effects that cannot be avoided • Alternatives • Based on purpose and need • Must consider both public and private purpose and need for permitting actions

15. What is an EIS (Continued) • Relationship between short-term use and maintenance and enhancement of long-term productivity • Any irreversible and irretrievable commitment of resources if implemented • Worst case analysis, but not required if the agency cannot make a reasoned assessment of the impact • Must be readable • Page limits

16. Procedural Requirements of EIS • Notice of Intent (NOI) published in the Federal Register • Scoping process • Draft EIS • Public review and public comments • At least 45 days • Federal agencies with jurisdiction or expertise to comment too • Final EIS that responds to public comments • Some agencies, such as EPA, rate EISs and an unsatisfactory rating is to be avoided

17. Record of Decision (ROD)(40 C.F.R. § 1505.2) • What the decision is • Alternatives • Considered • Most environmentally preferable • Factors balanced • Whether all practical methods to avoid or minimize environmental harm are being included or if not, why not • Enforcement and monitoring programs

18. Other Key Requirements § 101 (42 USC § 4332) • To the fullest extent possible, the policies, regulations, and public laws of US shall be interpreted and administered in accordance with the NEPA policies • Can use state detailed statements if they meet certain standards • Various environmental statutes are functional equivalent of NEPA compliance

19. Judicial Review • Kleppe v. Sierra Club, 427 U.S. 390 (1976) • Court not to substitute its judgment for that of the agency • Court to insure the agency has taken a hard look at environmental consequences

20. When is an EIS adequate? • Rule of reason • Alternatives • What is required is information sufficient to permit a reasoned choice among alternatives. NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972) • Scope of alternatives depends on the scope of the proposal. NRDC v. Callaway, 524 F.2d 79 (2d Cir. 1975) • Not just what agency can do • If part of a broad program, then broad alternatives • For project specific actions, it may not be reasonable to require amendments to federal law. NRDC v. Callaway, 524 F.2d 79 (2d Cir. 1975) • Rule of reason applies both to alternatives to be considered and the level of analysis required

21. Institutions • President’s Council on Environmental Quality (CEQ) • Provides overall guidance and regulations • Referral of interagency disagreements • EPA broad referral authority • CEQ can • Make recommendations to the President • Publish findings and recommendations • Each agency must adopt regulations to implement NEPA as well • CEQ must approve

22. Parties to the NEPA EIS Process • Project proponent • May be a federal agency or • Private party that needs a federal license or approval • Federal decision maker, department or officer that will approval or deny project • Decision is in the form of a record of decision (ROD) • EA or EIS preparers • Federal agency staff • Consultants • State or local staff if responsibility is passed through with federal funds • Should not be decision maker

23. Parties to the NEPA EIS Process(continued) • Commenters on draft EIS or EA • Federal agencies • State and local government staff • Tribes • Public • Interest groups • Appellants, most actions are not appealed • Agency appeal decision maker • Courts, if appealed to court • Protesters, if very controversial

24. Does NEPA work? • Council on Environmental Quality, The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-Five Years • Yes • Made agencies take a hard look at potential environmental consequences • Brought the public into agency decision making • But • Sometimes confusion over the purpose • Agencies sometime consult after a decision has been made • Litigation proofing • Failing to save money by not considering a full range of alternatives • Process can be too time consuming • Too detailed • Overlay of other laws can be confusing

25. SEPA Policy (RCW 43.21C.020) • To create and maintain conditions under which man and nature can exist in productive harmony; and • Fulfill the social, economic, and other requirements of present and future generations of Washington citizens • “Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings” • “The legislature recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.”

26. Judicial Elaboration of SEPA Policy • Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 578 P.2d 1309 (1978) • SEPA sets forth a state policy of protection, restoration, and enhancement of the environment. RCW 43.21C.020 • Procedurally, the environmental protection policy is to be implemented by the preparation and circulation of an environmental impact statement disclosing the environmental impacts of the proposed action. RCW 43.21C.030(2)(c). • Reading SEPA as a purely procedure law “would thwart the policies it establishes and would render the provision that ‘environmental amenities and values will be given appropriate consideration in decision making’ a nullity. RCW 43.21C.030(2)(b).” • “It necessarily follows that SEPA confers substantive authority to the deciding agency to act on the basis of the impacts disclosed.”

27. Judicial Elaboration of SEPA Policy (Continued) • However, since the 1980s at least five appellate courts have held that government required mitigation or denial exceeded SEPA authority • But, the Court of Appeals decision in the Victoria Tower II case upheld Seattle’s SEPA conditions since SEPA bestows broad powers and is to be given a vigorous construction

28. Judicial Elaboration of SEPA Policy (Continued) • Required to Mitigate? Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 870 – 71, 576 P.2d 401, 405 – 06 (1978) • “The action [to rezone 141 acres of farm land to permit construction of a major regional shopping center] was arbitrary and capricious in that it failed to serve the welfare of the community as a whole. Specifically, adverse environmental effects and potentially severe financial burdens on the affected community have been completely disregarded. If it is possible to substantially mitigate or avoid potential adverse environmental effects, and if Bothell takes the necessary steps to do so, responsible planning for the shopping center may be reasonable. It has not acted to avoid these consequences, however, and the rezone cannot be sustained. • “It is the policy of this state, expressed in the State Environmental Policy Act ‘that each person has a fundamental and inalienable right to a healthful environment . . .’ RCW 43.21C.020(3). This right has been threatened in the community directly affected by the environmental consequences of Bothell's zoning decision. The welfare of people living in this area must be served.”

29. When is an EIS to be prepared?SEPA • The standard for when an EIS should be prepared is whether the proposal is "a major action significantly affecting the quality of the environment ...." RCW 43.21C.030(2)(c) • An EIS must be prepared “whenever more than an moderate effect on the environment is a reasonable probability.” Norway Hill Preservation and Protection Association v. King County Council, 87 Wn.2d 267, 278, 552 P.2d 674, 680 (1976) • Cannot offset negative impacts with the positive impacts. WAC 197-11-330(5); King County v. Boundary Review Board

30. When is an EIS to be prepared?SEPA (Continued) • In close cases courts tend to require preparation of an EIS • Courts are not inclined to require an EIS where: • There will be no environmental impact without a subsequent action that is subject to SEPA, and • The action does not imply a commitment to a later action likely to have environmental consequences • For rezones, significance tends to be based on the differences in allowed intensity between the existing and proposed zoning and whether there is a specific proposal • For development permits courts seem to focus on • Intensity and irrevocability of the proposed development • Vulnerability of the site and surroundings

31. When is an EIS to be prepared?SEPA (Continued) • Shoreline substantial development permits usually require an EIS given the SMA policy • Courts review the threshold decision using the arbitrary or capricious standard: • Willful and unreasonable action without consideration and in disregard of facts and circumstances • If there is room for two opinions, it is not arbitrary or capricious • In Norway Hill the Washington Supreme Court also held that the clearly erroneous standard is also used • Firm and definite conviction a mistake has been made • Taking SEPA’s policy into account

32. SEPA Categorical Exemptions • Statutory exemptions in RCW 43.21C.035 through 0384 for certain irrigation projects, school closures, annexations, fish habitat restoration, air operating permits, water waste discharge permits for existing dischargers, and others • Administrative exemptions in Part Nine of SEPA Rules • Administrative exemptions cannot include “major actions significantly affecting the quality of the environment.” RCW 43.21C.110(1)(a) • Include optional flexible thresholds [WAC 197-11-800(1)] • From 4 to 20 dwelling units • From 10,000 to 30,000 sq. ft. agricultural buildings • 20 to 40 car parking lots • From 100 to 500 cubic yard landfills or excavations

33. Process for SEPA Threshold Determination • If not categorically exempt, applicant or agency proposing action prepares a SEPA Checklist • Based on applicant’s own knowledge and observations • Normally to be prepared by applicant with agency assistance • However, not uncommon for a consultant to prepare a checklist • Independently reviewed by the lead agency. WAC 197-11-335 provides that If the lead agency determines the checklist does not provide reasonably sufficient information to evaluate the proposal, • The lead agency must either obtain additional information or • Defer the threshold determination • The needed information may be provided by the applicant, the lead agency, or consultation with agencies with jurisdiction or environmental expertise

34. Process for SEPA Threshold Determination (Continued) • Responsible Official makes the threshold determination • Determination of Nonsignificance, no EIS required • Mitigated Determination of Nonsignificance (DNS), no EIS required due to mitigating conditions • Determination of Significance (DS) and Scoping Notice, EIS is required • Notice is required for DNSs for certain types of development such as those where another agency has jurisdiction and clearing or grading permits

35. SEPA Mitigated Determinations of Nonsignificance • Provided for in WAC 197-11-350 • Applicant may modify proposal so that it is not "a major action significantly affecting the quality of the environment ....“ • Or the lead agency can require conditions to meet the same standard • Since 1989’s West 514 decision, there has been a judicial trend not to overturn MDNSs

36. SEPA EIS Requirements • WAC 197-11- 430 -- 443 • Fact Sheet including the planned date of the final action • Table of Contents • Summary of the contents • Alternatives including the proposed action • Must evaluate the no-action alternative and compare it to the other alternatives • Must include reasonable alternatives • Reasonable alternatives include actions that could feasibly attain or approximate a proposal’s objectives, but at a lower environmental cost or a decreased level of environmental degradation • The lead agency may limit reasonable alternatives to those over which an agency with jurisdiction has authority to control impacts either directly, or indirectly through requirement of mitigation measures • In the Citizens Alliance case, the WA Supreme Court said that municipalities decide whether to review alternatives outside their jurisdiction

37. SEPA EIS Requirements (Continued) • For private projects the lead agency may not be required analyze off site alternatives. This exemption does not apply to rezones unless the rezone is consistent with a comprehensive plan that has undergone SEPA review • A description of the affected environment, significant impacts, and mitigation measures • A succinct description of the principal features of the environment that would be affected or created • Describe the significant impacts on the built and natural environments • Clearly indicate mitigation measures that could be implemented or might be required as well as those that agencies or applicants are committed to implement • Summarize significant impacts that cannot or will not be mitigated • The final EIS must include comment letters and responses

38. Procedural Requirements for SEPA EISs • After the threshold determination, the lead agency issues the scoping notice. WAC 197-11- 408 • The lead agency shall narrow the scope of every EIS to the probable significant adverse impacts and reasonable alternatives, including mitigation measures • Must invite agencies, affected tribes, and the public to comment on the scope • Must allow comments for 21 days, unless expanded scoping is used

39. Procedural Requirements for SEPA EISs (Continued) • EIS preparation. WAC 197-11-420 • Lead agency and responsible official responsible for compliance • EIS must be professionally prepared and with an interdisciplinary methodology • Must be readable • Draft EIS is issued for public comment. WAC 197-11-455 • Must be provided to each agency with jurisdiction or environmental expertise • Must give public notice. WAC 197-11-510 • Include in SEPA register • May hold a public hearing or when 50 people or two or more agencies request one • 30 day comment period, may be extended to 45 days • Issuance of Final EIS. WAC 197-11-455

40. When is a SEPA EIS Adequate? • The Adequacy of an EIS is tested under the “rule of reason.” Citizens Alliance To Protect Our Wetlands v. City of Auburn, 126 Wn.2d 356, 361-362, 894 P.2d 1300, 1304 (1995) • In order for an EIS to be adequate under this rule, the EIS must present decision makers with a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" of the agency's decision. Cheney, 87 Wn.2d at 344-45 [552 P.2d 184] (quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974)). • The rule of reason is "in large part a broad, flexible cost-effectiveness standard", in which the adequacy of an EIS is best determined "on a case-by-case basis guided by all of the policy and factual considerations reasonably related to SEPA's terse directives". R. Settle, [The Washington State Environmental Policy Act: A Legal and Policy Analysis] § 14(a)(i) [ (4th ed.1993) ]. • This court "must determine whether the environmental effects of the proposed action are sufficiently disclosed, discussed, and substantiated by supportive opinion and data." • The court does not rule on the wisdom of the proposed development but rather on whether the FEIS gave the decision maker sufficient information to make a reasoned decision

41. When is a SEPA EIS Adequate?(Continued) • Remote and speculative impacts or alternatives need not be considered • Based on cost-effectiveness grounds. SWAP v. Okanogan County v. Okanogan County, 66 Wn. App. 439, 832 P.2d 503 (1992) • Professor William Rogers has observed a “rule of thumb” that in Washington “a statement, any statement, is more likely to withstand judicial review than a declaration of nonsignificance.” Rogers, The Washington Environmental Policy Act, 60 WASH. L. REV. 33, 50 (1984) • The appellant courts have addressed EIS adequacy in 14 cases, only three have found an EIS inadequate

42. SEPA AppealsRCW 43.21C.060 – 080 & WAC 197-11- 680 • Appellant must exhaust administrative remedies before filing a judicial appeal • The agency or local government is not required to have a local appeal process • But they may • A SEPA appeal must be combined with an appeal of the substantive decision, except for an appeal of a DS • Agency or applicant may use a notice of action taken to set a final deadline for a SEPA judicial appeal, 21 days from the second publication of the notice

43. Issues • Addressing greenhouse gas emissions • CEQ Guidance • Ecology Guidance • NEPA reform • SEPA reform

44. Resources • Council on Environmental Quality http://www.whitehouse.gov/administration/eop/ceq/ • NEPA webpage: http://ceq.hss.doe.gov/ • Ecology’s SEPA website: http://www.ecy.wa.gov/programs/sea/sepa/e-review.html