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Avoiding NEPA Pitfalls

Constance E. Brooks, NEPA and Federal Land Development (2006)

In the western United States, it is a rare project that does not involve federal land at some point. The mining and energy industries need federal approval to develop mines and oil and gas leases and to build the necessary facilities and access. The projects must be authorized by either the Bureau of Land Management (“BLM”) or the U.S. Department of Agriculture, Forest Service (“Forest Service”) whenever the use of federal land is implicated.2

The National Environmental Policy Act (“NEPA”) is well known to most natural resource practitioners after more than 35 years of litigation, rulemaking, and administrative decisions. Notwithstanding the extensive body of case law and agency decisions, however, there is still ample opportunity for unexpected developments to derail a project's schedule.

Lengthy appeals and litigation can disrupt the most carefully written schedule for the development of a lease or a mine, thus diverting the company funds to fighting an appeal rather than drilling the well or developing the mine. The process of guiding a project to its conclusion requires an understanding of the NEPA rules,3 agency NEPA policy, and the controversies that can convert the project from routine to the subject of headlines and litigation. This paper identifies procedural and substantive issues that can stall or even defeat a project. The substantive legal issues