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Concepts And Strategies For A Complete And Efficient Nepa Process

Constance L. Rogers, Brian Annes, National Environmental Policy Act (Nov 2017)

As discussed in previous papers, the purpose of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, is to promote better federal decisions (40 CFR 1500.1) by taking a "hard look" at the environmental consequences of federal actions prior to a decision is made that would constitute an "irretrievable commitment of resources." The purpose of this paper is to identify regulatory and process efficiencies that meet both of the dual goals of informed federal decision-making and avoiding unnecessary or duplicative analysis. Specifically, this paper will focus on (1) programmatic review, (2) tiering and incorporation by reference, (3) contractor preparation of NEPA documents, (4) the use of agency guidance, and (5) combining NEPA review with other statutory requirements. The dual goals of informed decision-making and avoiding duplicative analysis have been present since NEPA's enactment and the adoption of the NEPA regulations. The NEPA regulations at 40 CFR 1500-1508 were established in 1978 by the Council on Environmental Quality (CEQ). In addition to prescribing the NEPA process and documentation thereof, these regulations established requirements and guidelines to reduce paperwork and establish efficiencies. For example, 40 C.F.R. § 1502.7 states that "the text of final environmental impact statements [EIS] shall normally be less than 150 pages and for proposals of unusual scope or complexity shall normally be less than 300 pages." It does not take long for a new NEPA practitioner to realize that we have not had a "normal" EIS since the early 1980s. Similarly, the NEPA regulations provide that federal agencies "shall" reduce delay by such measures as: better coordination (40 C.F.R. § 1500.5(a)-(d); combining the NEPA process with other federal review processes (40 C.F.R. §§ 1500.4(k) and 1500.5(g); establishing time limits for the NEPA process (40 C.F.R. §§ 1500.5(E), 1500.7(b)(2) and 1501.8); use of categorical exclusions (40 C.F.R. §§ 1500.5(k), 1500.4(p) and 1508.4); and use of findings of no significant impact when appropriate which exempts the action from the requirement to prepare and environmental impact statement (40 C.F.R. §§ 1500.5(l), 1500.4(q) and 1508.13). The NEPA regulations also provide for the adoption of other agencies' NEPA document (40 C.F.R. §§ 1500.5(h) and 1506.3); preparing programmatic NEPA documents (40 C.F.R. §§ 1500.4(i), 1502.4(b) and 1502.20); incorporation of other NEPA documents by reference (40 C.F.R. §§ 1500.4(j) and 1502.21); tiering the environmental analyses to previous NEPA documents (40 C.F.R. §§ 1502.20); and in certain circumstances providing for supplementation of an existing NEPA document instead of starting over (40 C.F.R. § 1502.9). The NEPA regulations also provides for federal agencies to review and revise their policies to ensure that they comport with NEPA standards (40 C.F.R. § 1500.6). In response to this direction, agencies have adopted myriad policies, manuals and guidance documents that are followed in addition to (and sometimes instead of) the NEPA regulations. From the perspective of the project proponent, inefficiencies related to lack of agency capacity are routinely an issue and such concerns are only increasing with agency staff retirements, hiring freezes