Session A9.1

NEPA Case Law

P.E. Hudson, Esq.  Counsel, Michael Smith, & Fred Wagner, Esq.

9:00 – 10:30 AM (PT) | 12:00 – 1:30 PM (ET)

About the Presentation

The panel is based on a paper that reviews substantive National Environmental Policy Act (NEPA) cases issued by United States Courts of Appeals in 2020. The implications of the decisions and relevance to NEPA practitioners will be explained. This session will summarize the more detailed paper prepared for this session. The paper briefly explains, with an emphasis on the substantive NEPA findings, each opinion issued by the U.S. Court of Appeals. The paper identifies statistics regarding the NEPA appellate opinions, such as twelve-year record of NEPA cases, organized by circuit, and by year. The paper also identifies the agencies involved in each case and presents statistics relevant to the agencies; the paper further identifies the prevailing ratio of federal agencies, including by agency and by document type (categorical exclusion, environmental assessment, environmental impact statement).

The paper analyzes the trends in the court opinions involving NEPA for 2020, with an emphasis on substantive NEPA practice, and by grouping of the cases. Finally, each court opinion is paraphrased and organized in a manner easy to read for practitioners to find the court's ruling. Appellate opinions are grouped and analyzed by agency. Past trends include challenges to purpose and need, alternatives considered, public comment, scientific impact assessment methodologies, GHG emissions and climate change impact assessment, incomplete or unavailable information, determination of significance, segmentation, duty to supplement, connected actions, federal actions, cumulative impact assessment, mitigation, monitoring and adaptive management. Suggestions for improving the implementation of the NEPA process and to meeting current challenges are offered, looking ahead to the future with renewed emphasis on one of the world's oldest and most forward-looking environmental laws.

NEPA Track, 1.5 AICP Credits

About the Speakers

P.E. Hudson
Esq.  Counsel
Department of the Navy OGC

P.E. Hudson, Esq. is the Counsel, Department of the Navy Office of General Counsel in Naval Base Ventura County, California, where she serves as the Counsel for the Center for Seabees and Facilities Engineers and teaches for Civil Engineer Corps Officers School. The focus of her practice is environmental law and planning, and specifically NEPA; she also develops and teaches courses involving NEPA, environmental planning and impact analysis, and environmental law, with a special emphasis on coastal and ocean resources, to federal employees. She has published fourteen federal agency, academic and peer-reviewed articles on environmental planning and impact assessment since 2013.  She served on the NAEP Committee for Best Practice Principles for Environmental Assessments, a CEQ Pilot Project, and received the NAEP's President's Service Award in 2014 and 2019. 

She formerly served as a litigator at a large firm in private practice, and as a federal clerk. She is a member of the bars of California, Florida and Georgia and the Supreme Court of the United States. Ms. Hudson retired from the Navy as a Commander (Oceanography). Any views expressed are Ms. Hudson’s personal views and not necessarily those of the Department of Defense, Navy or Federal Government.

Michael Smith

Dr. Smith is a NAEP Board Member and the California AEP Representative. Dr. Smith has over 27 Years NEPA and CEQA Project and Program Experience. He has managed and oversaw some of the nation's largest, most complex, and highly controversial projects, including major energy and transportation infrastructure projects, regulation of genetically engineered plants, commercial space transportation operations, and approval of new fuel economy standards. He has extensive experience as a NEPA and CEQA Trainer. His Ph.D. is in Sociology (Environment and Natural Resources emphasis) from Utah State University. He has a M.A. in Geography from University of Wyoming and a Bachelor of Arts in Environmental Studies from the University of California, Santa Cruz.

Fred Wagner, Esq.
Venable, LLP

Fred Wagner focuses on environmental and natural-resources issues associated with major infrastructure, mining, and energy project development. Fred manages and defends environmental reviews performed under the National Environmental Policy Act (NEPA) or equivalent state statutes. He works with public agencies and private developers to secure permits and approvals from federal and state regulators under Section 404 of the Clean Water Act (CWA), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). Fred understands the full range of issues surrounding U.S. Department of Transportation (USDOT) surface transportation programs, including grant management, procurement, suspension and debarment, and safety regulations. During his career, Fred has handled a wide variety of environmental litigation in federal trial and appellate courts across the country, from citizen suits to government enforcement actions and Administration Procedure Act (APA) challenges.


Session A9.2

CEQ's Review of the 2020 Final Rule: Issues and Opportunities

Michael Drummond, Edward Boling, Marie Campbell, & Jayni Hein

10:30 – 12:00 PM (PT) | 1:30 – 3:00 PM (ET)

About the Presentation

A discussion of the major issues in the Council on Environmental Quality's (CEQ) 2020 final rule updating the National Environmental Policy Act (NEPA) Implementing regulations, the CEQ process to "consider suspending, revising, or rescinding," the 2020 rule under Executive Order 13990, and recommendations on which provisions from the 2020 rule should be retained or modified. Join CEQ's former Associate Director for NEPA and counsel, Ted Boling, and CEQ's former Deputy Associate Director for NEPA Michael Drummond, as they discuss the next steps in the first comprehensive update to CEQ's NEPA regulations in over 40 years. The panel will be moderated by National Association of Environmental Professionals immediate-past president, Marie Campbell.

With over a million comments on CEQ's proposed rule last year, including extensive comments by NAEP, the debate and controversy over some of the more dramatic departures from the 1978 regulations is well-documented. There were also many changes that drew little criticism and some of the changes have the potential to improve NEPA practice. Panelists will discuss new provisions aimed at increased efficiency, improved outreach and involvement of Tribes, coordination between federal agencies, and use of technologies that did not exist when the 1978 NEPA regulations were issued. The 2020 rule will be compared to the Biden administration goals of listening to science, improving public health and protecting our environment, reducing greenhouse gas emissions, bolstering resilience to the impacts of climate change, and prioritizing both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.

Have questions about the 2020 update to the CEQ NEPA regulations? Join Q & A session and hear the perspective of two of the co-authors of CEQ's 2020 rule.

NEPA Track, 1.5 AICP Credits

About the Speakers

Michael Drummond

• Federal Attorney for the Department of Transportation
• Practice includes NEPA and environmental law
• Served as Director, Environmental Process and Policy Practice with WSP USA
• Nine years at the Council on Environmental Quality (CEQ)
• Helped draft the first comprehensive update to CEQ’s NEPA implementing regulations in over forty years
• Led the development of the first government-wide reports on EIS timelines and page counts
• B.A. from the Evergreen State College and J.D. from the University of Washington School of Law

Ted Boling
Perkins Coie LLP

As an associate director at the President's Council on Environmental Quality (CEQ), Edward (Ted) Boling served as the country's top National Environmental Policy Act (NEPA) attorney. He currently advises clients on the development of renewable energy, resource development, transportation, and infrastructure, drawing on over 30 years of high-level public service. Ted served in the U.S. Department of the Interior (DOI), CEQ, and the U.S. Department of Justice (DOJ) in both Democratic and Republican administrations. His experience includes deep involvement in federal infrastructure issues, as well as leadership of the first comprehensive revision of CEQ's NEPA regulations in 40 years. Ted's work at CEQ also included the National Ocean Policy, CEQ's climate change guidance, and the regulatory response to the Deepwater Horizon disaster. He drafted NEPA guidance on mitigation and monitoring, cumulative impacts analysis, and the development of categorical exclusions from detailed NEPA documentation. Ted advised on the establishment of numerous national monuments, including the first marine national monuments in the United States and the largest marine protected areas in the world. He also assisted in briefing three U.S. Supreme Court cases.

Jayni Hein
Senior Director

Jayni Hein serves in the Biden-Harris administration at the White House Council on Environmental Quality (CEQ) as Senior Director for the National Environmental Policy Act (NEPA). In this capacity, she oversees CEQ’s NEPA policy and implementation efforts and works to advance the administration’s climate, environmental, equity, and economic goals. She has extensive experience leading academic think tanks focused on climate change, energy, and environmental policy. Most recently, she served as the Natural Resources Director at NYU School of Law’s Institute for Policy Integrity, where she also teaches Natural Resources Law & Policy. Previously, she served as Executive Director of UC Berkeley School of Law’s Center for Law, Energy & the Environment and as an attorney at Latham & Watkins LLP in San Francisco, where her practice focused on environmental and regulatory law. Her writing has appeared in numerous academic journals as well as media outlets including The Washington Post, Politico, Slate, The Los Angeles Times, U.S. News, and more. 

Marie Campbell
Principal and CEO
Sapphos Environmental Inc.

Marie is principal and owner of Sapphos Environmental, Inc. She is an environmental compliance specialist with more than 35 years of experience in managing public- and private-sector projects that require strategic planning, environmental compliance documentation, and resource management. She is recognized by the Los Angeles Bar Association as an expert on the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). She has extensive experience with environmental compliance documentation for capital improvement projects for transportation, energy, recreation, health care, and water. She has served as a strategic environmental advisor on complex joint environmental impact statements and environmental impact reports for projects such as multiple conventional and renewable energy projects, the Los Angeles International Airport Master Plan and subsequent improvements, China Shipping Yard, and the Los Angeles County Drainage Area. She served as the project manager for the Martin Luther King, Jr. Medical Campus and Long Beach Memorial Master Plan. She has overseen the entitlement and environmental analysis and permitting for over 3,000 megawatts of renewable and conventional energy projects and transmission facilities in the western United States.