EECBG Grants: The National Environmental Policy Act NEPA The National Historic Preservation Act NHPA

1. EECBG Grants: The National Environmental Policy Act (NEPA)& The National Historic Preservation Act (NHPA) From Counsel’s Perspective…* * - The information in this presentation is solely the opinion of Colin Colverson, and does not in any way reflect the views, opinions, policies or procedures of The Oak Ridge Office of Chief Counsel, the Department of Energy, the United States Government, or any of their associated agents, officers or employees.

2. Goals of EECBG: Sustainably reduce emissions in a manner that maximizes benefits for communities Reduce total energy use Improve energy efficiency in a variety of sectors Stimulate the American economy with projects that will yield continuous, cost-effective benefits for energy-use and emissions reductions

3. NEPA Law - 42 USCS § § 4321 et seq. – Congress establishes a national policy to foster a sustainable relationship with the natural environment, and that, for all major Federal actions, a detailed statement regarding environmental impact will be produced and considered in decision-making Regulation – (DOE only) – 10 CFR § § 1021 et seq. - NEPA applies to any DOE action affecting the quality of the environment – IE a grant program subject to DOE’s control or responsibility

4. NHPA Law - 16 USCS §§ 470 et seq. – Congress intent to create co-existence between modern development and American heritage, and requires Federal agencies to take into account the effect of their decisions on culturally or historically sensitive properties Regulation – 36 CFR §§ 800 et seq. – Regulatory process by which stakeholders (Federal council, state council, local interests) are granted guaranteed consultation with Federal agencies before the agency engages in behavior that negatively affects culturally or historically sensitive properties.

5. NEPA & NHPA - Comparison Similarities Differences Procedural Statute Apply to Federal actions Incorporate policy choices into decision-making NEPA – only ‘major Federal actions’ NHPA – applies to all Federal activities NEPA – a variety of categorical exclusions exempt some Federal actions from NEPA procedures NHPA – no exceptions for eligible properties to state criteria for preservation

6. EECB Grants and their relationship to NEPA & NHPA: All projects receiving DOE financial assistance must comply with NEPA/NHPA. NHPA procedural requirements can dovetail NEPA; by applicants engaging in a NEPA review, substantive compliance with both statutory requirements is achieved. If the project does not qualify for a categorical exclusion, then a NEPA questionnaire is required.

7. Problems from a Legal Perspective NEPA – Categorical Exclusions – if it is determined that the DOE proposal (ie grant activity) is not covered within the regs, then DOE has to prepare an EA (Environmental Assessment). Avg EA – costs 1% of a projects budget, and can take at least 60 days to complete (sometimes take years) EA determines whether there needs to be a FONSI (Finding of No Significant Impact) or an EIS (Environmental Impact Statement). Avg EIS – costs 3-5% of a projects budget, and generally takes many months to complete DOE is the responsible entity for creation of ALL NEPA documents, NOT the grant applicant.

8. Problems from a Legal Perspective NHPA – “Eligible” is enough Each state has different criteria for what qualifies as a historic building, and Federal entities are required to conform to each state’s criteria, which are created by the State Historic Preservation Office (SHPO) For ANY activities that MAY affect historical properties, coordination with the SHPO to create a memorandum of agreement or a programmatic agreement so that the grant applicant is complying with DOE regulatory requirements Continuing obligation – DOE is always on the hook, and must participate with all applicable parties before awarding any Federal funds

9. A Path Forward?

10. Whatever you do, don’t ask a lawyer!