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Considerations For Working With Federal Agencies And Improving Efficiency And Public Participation In The Nepa Process

Arthur R. Kleven, National Environmental Policy Act (Nov 2017)

Naturally, federal agencies and project proponents have differing priorities or goals during and after the preparation of environmental documents under the National Environmental Policy Act (NEPA).2But they both share an interest in the timely production of a defensible NEPA document, and providing the opportunity for meaningful public participation. Consistent with those goals, the Council on Environmental Quality (CEQ)3 and the Department of the Interior4recently issued notices and policy documents setting goals and guidance for more efficient and timely NEPA reviews. This paper provides a non-scholarly, far-from-complete list of considerations, practice points, and pet-peeves developed from the author's hard won (or lost) personal experience, that may help facilitate an efficient and timely NEPA process, or avoid common pitfalls in NEPA preparation. In general, early and regular engagement and communication with the federal agencies with decision-making (and thus NEPA) responsibilities over a particular project is necessary to ensure a timely and efficient NEPA process. For complex or large-scale proposals involving preparation of an environmental impact statement (EIS), most project proponents or applicants (or their counsel), contractors, and federal agencies, are well-versed in process basics like engaging a contractor; establishing or memorializing the relationships between proponents, lead and key federal agencies, and contractors; scheduling NEPA product deliverables and regular status updates, and producing a public participation plan. Suffice to say, no matter the level of planning, the best laid schemes of mice and men go often awry,5 and potentially schedule-bursting events often arise during NEPA preparation for large, complex proposals. Those contingencies may be reduced, and proponent and federal agency goals for timely and efficient NEPA with robust public involvement more easily met, if at the outset of the NEPA process proponents, contractors, and federal agencies know the project, know the agencies, know their roles, and know the public. Know the Project Project proponents and applicants always approach federal agencies to initiate NEPA reviews with fully-formed and complete descriptions of the projects for which authorization is sought--except when they do not. Changes in economic or environmental circumstances may be unpreventable and project modifications unavoidable. A project's scope, of course, defines the entirety of the NEPA process, from the lead and cooperating agencies, to scoping, purpose and need, alternatives, affected environment, to impacts analyses. Providing the federal agencies with a clear and complete description of the project at the outset is, of course, also critical for timely and efficient agency engagement and NEPA review. A thorough description of the proposed project and all component parts at the outset is also necessary to identify connected and cumulative actions that must be discussed in the same NEPA document.6 Proponents and agencies should not allow the understandable focus on large project components and primary authorizations to leave relatively small, ancillary components (e.g., spur utility lines or access roads) unaccounted for until later in the NEPA process. Likewise, proponents or the agency may wish to analyze unconnected, independent actions from the proponent as similar actions7 in an EIS. Doing so may allow for tiering or incorporation by reference for future authorizations.