March 15, 2019

NEPA Streamlining Yet Again: Will the Diet Work This Time?

Chris Thomas, Chris Garrett, Bob Maynard, and Ken Houser

The U.S. Forest Service manages a whopping 193 million acres of public land, including 36 million acres of wildness, across 174 national forests and grasslands. The Service is charged with the unenviable task of reconciling competing demands for use of those lands, using statutory and administrative tools that were unwieldy to begin with and have not improved with age. Most notable among those tools is the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §§ 4321–370, enacted during a dark and distant time when Richard Nixon was president, the Cuyahoga River in Cleveland had recently caught fire again, and the Archies’ “Sugar, Sugar” topped the pop charts.

Effective January 1, 1970, NEPA grandly declared a “national policy [to] encourage productive and enjoyable harmony between man and his environment.” To that end, the statute requires federal actors, before undertaking “major Federal actions significantly affecting the quality of the human environment” to include a “detailed statement” regarding the action’s environmental impacts and reasonable alternatives to it. 42 U.S.C. § 4332(C). Federal actors covered by NEPA include all agencies of the federal government, but the statute does not apply to Congress, the judiciary, or the president. 40 C.F.R. § 1508.12. The sorts of actions covered by NEPA are typically issuance of permits and approvals for specific projects, rulemakings, and federal funding of infrastructure. In the case of the Forest Service, that commonly includes approval of private timber, grazing, or mining operations on national forest land.

Nearly 50 years into implementation of NEPA, there is little evidence of “productive and enjoyable harmony” between the statute, its critics, and the stakeholders that grapple with it. So, why is everyone cranky about NEPA, and what can do we do about it? Some of that disharmony arises from the statute’s loose language. Congress mandated rather broadly in NEPA that the federal government should think about the environment before doing or funding big things. Not being well-versed in the field, Congress perhaps underestimated the difficulty of critical thinking. And if life was simple enough in 1969 for everyone to agree on what degree of thinking about the environment was required, that is assuredly not the case today.

The vague nature of the statute is echoed in implementing regulations issued by the White House Council on Environmental Quality (CEQ) and affected agencies. CEQ’s uniformly applicable regulations are set forth in 40 C.F.R. Part 1500; the Forest Service regulations are at 36 C.F.R. Part 220. CEQ’s circular regulations essentially instruct agencies to think about the effects and impacts they should think about. See, e.g., 40 C.F.R. § 1508 (factors relevant to an environmental impact statement (EIS) include direct and indirect effects, including beneficial ones, potential controversy, and uncertainty). The CEQ regulations have remained largely unchanged since 1987, although there is an effort underway to amend them.

Under the CEQ regulations, direct, indirect, and cumulative effects or impacts (terms used interchangeably) must be considered. Direct effects are those “which are caused by the action and occur at the same time and place.” Indirect effects are those “caused by the action” and “reasonably foreseeable,” but occurring “later in time or farther removed in distance.” 40 C.F.R. § 1508.8. Cumulative impact is the “incremental impact of the action when added to other past, present, and reasonably foreseeable future actions,” regardless of the actor. 40 C.F.R. § 1508.7. Neither CEQ nor the courts really know how to define the full range of effects that must be studied, but like the late Justice Potter Stewart and pornography, they recognize them when they see them.

In CEQ parlance, the “detailed statement” is an EIS, 40 C.F.R. § 15.08 (11), and the agency decision that flows from that document following public comment is a record of decision (ROD). 40 C.F.R. § 1505.2. Honored primarily in the breach are the page limits suggested in sections 1505.2 and 1502.7: 150 pages for a simple EIS and 300 pages for a complex one. Decisions on smaller-scale projects may be supported by a more concise “environmental assessment” under 40 C.F.R. § 1508.9, provided the assessment allows the agency to issue a finding of no significant impact (FONSI) under 40 C.F.R. § 1508.13. Certain, even more limited, actions may qualify for cursory review under a variety of “categorical exclusions,” which allows the agency to dispense with much of the paperwork. 40 C.F.R. § 1508.4.

NEPA also requires that federal agencies consult with state, local, and tribal agencies, including any federal agency that “has jurisdiction by law or special expertise with respect to any environmental impact involved.” That typically means consultation with the U.S. Fish and Wildlife Service regarding endangered and threatened species protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., and federal and state historic preservation officers regarding the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq. Generally, the Forest Service (part of the Department of Agriculture) is the lead NEPA agency for projects on lands within the national forest system, and the U.S. Bureau of Land Management (BLM) (part of the Department of Interior (DOI)) leads the effort on other public lands. Other federal agencies such as the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) commonly appear as cooperating agencies. The effort required by the consultation and cooperation processes can be enormous. For one example, 16 federal, tribal, state, and local political subdivisions served as cooperating agencies on an environmental review of the proposed Rosemont Copper Mine near Tucson, Arizona. Seventeen other governmental entities were invited and declined. U.S. Forest Service, Rosemont Copper Project Environmental Impact Statement page, available at www.rosemonteis.us/final-eis.

The Pleasures of NEPA Litigation

A vaguely worded statute that applies to much of America’s most scenic landscapes is, of course, a magnet for litigation. NEPA includes no express private right of action, and claims arising from alleged failure to adhere to the statute are brought against the lead agency in district court under the Administrative Procedure Act, 5 U.S.C. subchapter II, frequently with companion claims. The U.S. Supreme Court’s NEPA case law has been historically sympathetic to the position of the government––typically in the context of a claim that a federal actor failed to consider adequately potential environmental considerations––but not since Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989), has the Court directly addressed a substantial NEPA issue. In Robertson, the Court declined to find that the Forest Service had acted arbitrarily and capriciously when it failed to supplement an environmental impact statement before issuing a special use permit for a ski hill on national forest land. Rather comically in light of subsequent lower court opinions, the Court appeared to be impressed by the fact that the EIS was a whole 150 pages and had 12 appendices.

In any event, the language in Robertson and its predecessors conveys little hint of the controversy in the lower courts. According to the Court, NEPA’s “sweeping policy goals” do not require any particular environmental outcome, but only that federal actors take a “hard look” at their choices. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). While negative impacts and potential mitigation measure must be analyzed, the agency need not necessarily demand mitigation. “NEPA merely prohibits uninformed—rather than unwise—agency action.” Robertson, 490 U.S. at 351. See also Marsh v. Or. Nat. Resources Council, 490 U.S. 360, 371 (1989) (“NEPA does not work by mandating that agencies achieve particular substantive environmental results.”). As the Supreme Court put it in Robertson, “There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.”

According to the Supreme Court, the impacts to be evaluated under NEPA are only those with a “reasonably close causal relationship between a change in the physical environment and the effect at issue . . . like the familiar doctrine of proximate cause from tort law.” Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983). Further, “[i]nherent in NEPA and its implementing regulation” is a “rule of reason” that relieves an agency of the obligation to evaluate environmental effects that cannot be tied to its action. See, e.g., U.S. Dep’t. of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (agency that lacked authority to regulate cross-border vehicle emissions had no obligation to evaluate them).

A reviewing court must conduct a “searching and careful” review, but its standard is ultimately a narrow one: whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). When analysis of technical documents “requires a high level of technical expertise,” the courts must defer to “the informed discretion of the responsible federal agencies.” Marsh v. Or. Nat. Resources Council, 490 U.S. 360 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)). And “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 390 U.S. at 378.

In the three decades since the Supreme Court suggested courts had only a limited role in reviewing alleged NEPA shortcomings, the lower courts have begged to differ. Seemingly flummoxed by the loosely defined statute and CEQ regulations, the lower courts have issued opinions that collectively appear to take every side on every issue. NEPA cases continue to come in the same three flavors identified by the Congressional Research Service (CRS) close to 20 years ago. When an agency decision is based on a categorical exclusion, litigants typically will challenge whether the invocation of the exclusion was appropriate or whether the exclusion itself is proper. When an agency makes a decision based on an environmental assessment, the complaint is usually that the finding of no significant impact was erroneous and an environmental impact statement should have been conducted. And when a full-blown environmental impact statement is performed, the usual disputes are over the analysis of connected actions, cumulative impacts, and potential mitigation measures. Congressional Research Service, Overview of National Environmental Policy Act (NEPA) Requirements (Jan. 11, 2008), www.everycrsreport.com/files/20080111_RS20621_b412c3cb0db7f6836068acfd946121c6b808d6d7.pdf.

While most of the Supreme Court’s NEPA opinions make the process sound easy, the lower courts have frequently struggled to explain precisely what the agency is required to do. For instance, according to the Ninth Circuit, to pass muster a cumulative effects analysis must be “more than perfunctory,” contain “some quantified or detailed information,” and “provide a useful analysis.” Klamath-Siskiyou v. Bureau of Land Mgmt., 387 F.3d 989, 993–94 (9th Cir. 2004). Although NEPA does not mandate mitigation of environmental impacts per se, federal agencies are required to give “full and meaningful consideration to all reasonable alternatives.” Te-Moak Tribe of Western Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 601–02 (9th Cir. 2013). Well, OK.

Additionally, during this period of Supreme Court silence about the guts of NEPA, the Court has displayed growing skepticism about the deference due to administrative agencies under Chevron USA, Inc. v. Nat. Resources Defense Council, Inc., 467 U.S. 837 (1984). Although the courts have always given CEQ’s regulations deference, the Council has no statutory enforcement or regulatory authority. CEQ initially issued nonbinding guidelines as authorized by President Nixon’s Executive Order 11,514, Protection and Enhancement of Environmental Quality, 35 Fed. Reg. 4247 (March 5, 1970). President Carter authorized CEQ to issue binding regulations in an amended executive order, Relating to Protection and Enhancement of Environmental Quality, issued on May 24, 1977, at 42 Fed. Reg. 26,967 (May 24, 1977). The Council exercised its new authority to issue regulations binding all federal agencies effective December 29, 1987 (43 Fed. Reg. 55,978). All bets are off if someone tells President Trump that the man who empowered CEQ was Jimmy Carter.

Is it any wonder federal agencies tend to write long NEPA documents and take their time doing so? There is no reward for brevity or wit, and nobody can sue you until you make a decision. Environmental studies have become progressively more elongated and the written studies lengthier. All but the hardiest project proponents are deterred. And for the hypothetical undecided forest supervisor or public reader, the effect is much like highlighting every sentence of a lengthy book. A study that calls attention to every issue essentially calls attention to none.

To again use the Rosemont project as an illustration, the final environmental impact statement there included 1,400 pages of text and another 1,000 or so pages of appendices. The executive summary was a brief 212 pages. More than 24,000 public comments were filed; although many were duplicative, the Forest Service’s response to comments totaled 496 pages. The record of decision was 142 pages, not counting an additional 45 pages of errata. The Forest Service’s decision is the subject of three consolidated suits by the Center for Biological Diversity and others in the District of Arizona. Ctr. for Biological Diversity v. U.S. Fish and Wildlife and U.S. Forest Serv., Nos. 4:17-cv-00475-JAS (D. Ariz. (lead) 4:17-civ-00576 (2017), and 4:18-civ-00189 (2018)). Without commenting on the merits of the litigation, there’s no doubt that the study process itself killed a lot of trees.

For NEPA practitioners––and could Congress have really intended to create an army of such people?––it’s a living. For project proponents, opponents, and the agency officials caught in the middle, it’s less rewarding. Indeed, for the Forest Service, streamlining NEPA isn’t really an issue of being responsive to outside entities or expediting infrastructure projects. It’s a matter of the agency’s fundamental ability to fulfill its mandate of managing the nation’s forests. One 2007 study for the Forest Service found that a staggering 7,964 employees of the Service spent some time during 2006 on NEPA-related work. Management Analysis, Incorporated, Activities Related to National Environmental Policy Act (NEPA) Compliance in the US Forest Service, Final Report (Aug. 2007), available at www.peer.org/assets/docs/fs/08_14_1_nepa_feasibility_study.pdf. Precisely how many full-time equivalents that effort represented was, sadly, redacted, perhaps to keep Congress guessing.

At the same time, according to 2017 remarks by former Forest Service Chief Tony Tooke, the agency has 80 million acres at moderate to high risk from insects, disease, and catastrophic fires; 25 million of those acres are high-risk. 2017 Western Governors’ Ass’n Winter Meeting, Tony Tooke Remarks, C-SPAN, Dec. 1, 2017. During the last decade the time for reaching a decision on environmental assessments has increased by 20 percent and that for environmental impact statements has gone up by 70 percent. Meanwhile, in the last two decades the Forest Service non-fire workforce has fallen by more than 40 percent.

Fittingly, there have been numerous hearings, studies, and reports about how to improve, update, reform, enhance, modernize, or streamline NEPA. Most have reached the same recommendations: Agencies should coordinate and collaborate better; deadlines should be imposed; perhaps litigation should be made more difficult.

NEPA literature has always featured much wailing and lamentation and considerably less empirical analysis. One welcome exception is a recent article by Professors David Adelman and Robert Glicksman, Presidential and Judicial Politics in Environmental Litigation, 50 Ariz. St. L.J. 3 (Spring 2018). Surveying the incomplete data, the authors concluded that roughly 99 percent of all NEPA-triggering actions are evaluated using a categorical exclusion or environmental assessment. For the federal government as a whole, the authors concluded, “We find little evidence that litigation under NEPA is out of control or that NEPA processes are unduly burdensome.” Id. at 7. The burden on the Forest Service was another story. The authors determined that the Service produced more environmental impact statements than any other agency (an average of 147 per year from 1998 through 2008), that 25 percent of them were challenged, and that 18 percent were actually litigated. Id. at 21, 51. More than half of the cases were filed in the Ninth Circuit, which hosts 63 percent of Forest Service Land. After evaluating some 1,572 district court cases and 656 opinions from the courts of appeals, the authors concluded that Ninth Circuit appellate cases were more likely to be decided by a panel whose judges were appointed by a Democratic president.

Objective data regarding the costs associated with NEPA are hard to come by, except in the transit area. One frequently cited study by the U.S. Government Accountability Office, Little Information Exists on NEPA Analyses (April 2014) found––you guessed it––that most federal agencies do not track the costs they incur in conducting NEPA review or the time it takes them to complete necessary evaluation. Further back, the indispensable CRS reported in 2007 that, while NEPA litigation had abated since the 1970s, agency concern about lawsuits had not. CRS, The National Environmental Policy Act: Streamlining NEPA (Jan. 9, 2007), https://fas.org/sgp/crs/misc/RL33267.pdf. That perhaps was attributable to a rough year in 2004, when there were 170 NEPA cases filed, 80 against the Forest Service. The National Association of Environmental Professionals (NAEP) does compile terrific data on EIS preparation time frames. NAEP’s most recent report evaluated 312 final, supplemental, or draft EISs released in 2016. With 67, 21 percent of the total, the Forest Service was by far the most prolific agency author. Across all agencies, the average final EIS released during 2016 took 5.1 years to complete. NEPA, NAEP Annual National Environmental Policy Act (NEPA), www.naep.org/nepa-annual-report (last visited Nov. 26, 2018). Perhaps it is not so surprising that hard data is difficult to obtain.

Ongoing Reform Efforts

Virtually every Congress since 1970 has entertained amendments to NEPA, and virtually every administration has called for administrative streamlining. Except for highway transit projects––where the time scale for NEPA review has been reduced from near-centuries to mere decades––most of those efforts have produced negligible success.

Congress has yet to enact any significant NEPA amendments but periodically has held hearings to lambaste the statute. The House Natural Resources Committee’s opinion of NEPA is evident from the titles of the hearings it has called, among them, Examining Policy Impacts of Excessive Litigation Against the Department of Interior (June 28, 2017), Examining Impacts of Federal Nature Resources Law Gone Astray (Parts 1 and 2) (July 18 and May 24, 2017), and, most alarmingly, Obama Administration’s Final NEPA Guidance: Litigation Blueprint for Radical Special Interest Groups (Sept. 21, 2016). Those who question the wisdom of publicizing a radical blueprint for anything will be relieved to know the topic was only about a policy calling for NEPA reviews to consider climate change impacts, since rescinded. Even in these sorts of hearings, there are occasional flashes of inspiration. Former CEQ General Counsel Dinah Bear testified on November 29, 2017, for example, that plunging staff levels and expertise exacerbated NEPA delays and that, inexplicably, federal resource agencies had failed to centralize their vast store of information about particular geographic areas. Modernizing NEPA for the 21st Century (Nov. 27, 2017).

The administrative efforts have been more robust. The current administration’s effort began in earnest on August 15, 2017, with issuance of Executive Order 13,807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure. That’s not to be confused with the CEQ guidance issued under President Obama, Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act, 77 Fed. Reg. 14,473 (Mar. 12, 2012). The CEQ noted somewhat ruefully in the earlier rulemaking that, “Many commenters felt that the draft guidance was merely a rehash of previous guidance issued by the CEQ, with no new insights or procedures for making the NEPA process more efficient.” Id. at 14,474. And so, in truth, it was.

Will anything more come of this effort? If nothing else, the showmanship is better. In his June 2017 event to illustrate the inefficiency of NEPA, President Trump pointed to 70 pounds of studies of an 18-mile segment of Maryland roadway from Gaithersburg to Prince Georges County. Left unmentioned was that the project went from draft environmental impact statement to final record of decision in a crisp 18 months.

The key current regulatory effort was launched on June 20, 2018, by CEQ, which asked for comment on a potential major overhaul of its regulations. 83 Fed. Reg. 28,591 (June 20, 2018). For those around since the passage of NEPA, CEQ’s inquiries and the comments on them are like déjà vu all over again. The questions are the right ones, if sometimes preposterously leading. CEQ asked, for instance, whether its regulations should be revised to ensure that multi-agency reviews “are conducted in a manner that is concurrent, synchronized, timely, and efficient” and to “ensure optimal interagency coordination.” It seems doubtful that any of the 12,529 comments called for less efficiency, although perhaps one should not blithely assume so.

The Forest Service is sifting through the 47,341 comments it received in response to its advanced notice of proposed rulemaking to update its NEPA regulations at 36 C.F.R. Part 220. 83 Fed. Reg. 302 (Jan. 3, 2018). The Service also closed comments on October 15, 2018, on a similar proposal to amend its regulations governing hard rock mining and oil and gas exploration in national forests. 83 Fed. Reg. 46,451 and 46,658 (Sept. 13, 2018). To the chagrin of many environmental groups, the Mining Law of 1872, 30 U.S.C. §§ 22–54, generally allows exploration for and mining of “locatable minerals”––base and precious metals such as gold, silver, copper, and others––beneath national forest lands.

DOI––according to some responsible for 28 percent of environmental impact statements issued in 2016––released guidance in April 2018 calling for environmental impact statements generally to be completed in no less than a year and to be fewer than 150 pages. Additional Direction for Implementing Secretary’s Order No. 3355 (Apr. 27, 2018); Order No. 3355, Streamlining National Environmental Policy Act Reviews and Implementation of Executive Order 13807(Aug. 31, 2017). If history is any guide, that leaves approximately 25 pages for analysis after the recitation of acknowledgments.

Both DOI and the Forest Service––issuers of 23 percent of the full EIS reports in 2016––were among the 12 signatories to the April 19, 2018, One Federal Decision memorandum, intended to implement Executive Order 13,807’s goal of completing NEPA review for “major infrastructure projects” within two years.

All this talk of streamlining, of course, has been met with enormous skepticism by environmental groups and their congressional allies. Not least among them is Rep. Raul Grijalva (D–AZ), the likely chair of the House Committee on Natural Resources in a Democratic Congress. His August 10, 2018, letter is the last comment posted to the CEQ rulemaking docket. “Should CEQ use the current rulemaking to substantively roll back existing NEPA protections,” he wrote, “CEQ can expect significant pushback from Congress and the public at large.”

To misquote H. L. Mencken, in this world of sin and sorrow there is always something to be thankful for; you should rejoice that you are a not a Forest Service NEPA official.

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Chris Thomas, Chris Garrett, Bob Maynard, and Ken Houser

Mr. Thomas, based in Phoenix, Arizona, and Mr. Maynard, based in Boise, Idaho, are partners at Perkins Coie LLP. They may be reached at cthomas@perkinscoie.com and rmaynard@perkinscoie.com, respectively. Mr. Garrett, a NEPA specialist, and Mr. Houser, senior principal for the Southwest, are with SWCA Environmental Consultants in Phoenix. They may be reached at cgarrett@swca.com and khouser@swca.com, respectively.