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"What Are You Looking At?" Defining The Scope Of The Project And Effects For Nepa Reviews

James M. Auslander, National Environmental Policy Act (Nov 2017)

The first task in any National Environmental Policy Act (NEPA)2review is to define the scope of a project and the relevant environmental considerations. This step might sound both obvious and straightforward, but in practice it often is neither. Variables may include, but are not limited to, the geographic area at issue, the extent of the environmental effects discussed, and the specificity of the analysis. Energy and minerals projects are no exception to the challenge of determining the appropriate scope of environmental analysis under NEPA. This article explores these NEPA scoping questions and illustrative case law, which continues to evolve. Three aspects warrant particular attention. First, "segmentation" concerns whether multiple federal actions should be analyzed collectively as a single action within a NEPA document. Second, the "small handles" issue involves to what extent a private project becomes "federalized" due to the need for discrete federal approvals. Finally, staged development and approvals, and the respective rights conferred, impact the scope and detail of the environmental effects that an agency must address at a given point in time. In sum, it is critical to take the time to fully consider the scope of the project or proposal before embarking on the NEPA analysis. The criticality of this issue for defensible NEPA reviews cannot be overstated. Failure to properly characterize the agency action or shortchanging the universe of relevant impacts at the outset can prejudice the underlying project through adverse litigation outcomes and correspondingly extensive and expensive delays. This article is not intended to be an exhaustive survey of all possible situations that might apply in any given case. It also does not duplicate discussions of important related topics expansively addressed in other papers for this Special Institute, including more detailed consideration of indirect and cumulative impacts and connected actions, defining the purpose and need and reasonable range of alternatives, and how to optimally build the administrative record. Affected parties should consult counsel to ensure compliance with NEPA, maximize efficiency, and protect their rights. II. SCOPING THE PROPOSED ACTION AND AVOIDING SEGMENTATION Like any NEPA issue, scoping should be viewed through the lens of NEPA's core "twin purposes of ensuring that (1) agency decisions include informed and careful consideration of environmental impact, and (2) agencies inform the public of that impact and enable interested persons to participate in deciding what projects agencies should approve and under what terms." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004). The NEPA legal obligation belongs to one or more federal agencies - rather than a non-federal applicant - and is wholly procedural. Id. at 756-57. Agencies and project proponents should remember that "NEPA's purpose is not to generate paperwork--even excellent paperwork--but to foster excellent action" informed by an understanding of relevant environmental effects. 40 C.F.R. § 1500.1(c) (2003).