Session A5.1

NEPA is not the Problem

Charles Webb

9:30 – 10:00 AM ET

About the Presentation

Considerable focus is placed on expediting the NEPA process due to the perception that the process takes too long. The perception of lengthy NEPA reviews is accurate but misleading. The average time to prepare an EIS between 2000 and 2018 was 4.5 years. While many focus on NEPA as the culprit for lengthy reviews, design changes, and changes in political priorities are key causes. However, the CFR requirement that the NEPA process act as the clearinghouse for compliance with all other environmental laws does in some cases cause the preparation time for EAs and EISs to balloon upward.1502.25 (1978 regs) or 1502.24 (2020 regs) state that: "To the maximum extent possible, agencies shall prepare draft environmental impact statements concurrent and integrated with environmental impact analyses and related surveys and studies required by all other Federal environmental review laws and Executive orders applicable to the proposed action". It would reduce NEPA duration if federal agencies were allowed the flexibility to complete the NEPA process before complying with all other environmental requirements.

An example is Section 106 of the National Historic Preservation Act, which requires federal agencies to consult with State Historic Preservation Officers on the effects of a proposed action on cultural resources. Federal agencies typically will not complete the NEPA process until the Section 106 consultation is complete (an executed memorandum of agreement) which puts the lead agency's schedule in the hands of an outside agency. Contrast the Section 106 process with Section 404 of the Clean Water Act. Section 404 permitting and detailed mitigation planning take place after the NEPA process is complete, when impacts can be defined more precisely. A Section 404 permit needs to be in the lead agency's hands prior to construction, not prior to completing the NEPA process.

Removing the focus on using NEPA as a clearinghouse would speed up the NEPA process back to desirable durations and reduce legislative efforts to undermine or weaken NEPA in the name of expeditious reviews. Of course, there is a risk to doing this. It is not hard to imagine a federal agency rushing through the NEPA process only to have the action change post-NEPA because of a requirement of another environmental law. My presentation will provide options to manage this risk while providing flexibility and maintaining the essential intent of the National Environmental Policy Act.

About the Speaker

Charles Webb
Senior Project Manager
Jacobs

Charlie Webb is a Senior Project Manager and NEPA practitioner with Jacobs with 30 years experience preparing NEPA documents. Charlie's focus is managing the National Environmental Policy Act (NEPA) process for large-scale transportation improvement projects. Since 2004, he has successfully guided over $8.5 billion in highway improvements through the NEPA process, often on accelerated schedules.


Session A5.2

Consideration of Risk and Risk Mgmt. in NEPA Practice

J. Peyton Doub, CEP, PWS

10:00 – 10:30 AM ET

About the Presentation

Risk is becoming an increasingly important element of many analytical processes. Many NEPA documents such as EISs and EAs have presented impacts deterministically, expressing the effects of an action on an environmental resource qualitatively or quantitatively but without consideration of the probability of those effects occurring. Consideration of probability, even a qualitative consideration, adds another dimension to the analysis that may better inform decision-makers about the overall risk that actions might pose to valued environmental resources. For example, evaluations of the effects of cleanup alternatives at Superfund sites have long incorporated risk assessments addressing effects on human health (human health risk assessment) and ecological resources (ecological risk assessment). These risk assessments strive to quantitatively define not only the effects on human and ecological receptors but the likelihood (probability) of those effects. Such an approach can be adapted, at least in part, to evaluations presented in EISs and EAs.This presentation will briefly introduce the audience to the concept of risk and how risk can add a useful new dimension to assist decision-makers using NEPA documents. The presentation will present some specific examples and leave time for questions and discussion.

About the Speaker

J. Peyton Doub, CEP, PWS
Environmental Scientist
Nuclear Regulatory Commission

Mr. Peyton Doub, CEP, PWS is an environmental scientist with the U.S. Nuclear Regulatory Commission. Mr. Doub has over 30 years of experience with NEPA, focusing primarily on ecology and wetland issues. Mr. Doub has spoken at numerous NAEP annual conferences between 1996 and 2020 and has published several articles in NAEP's journal Environmental Practice.


Session A5.3

Cumulative Schmulative, Should the Word Be In or Out?

Owen Schmidt

10:30 – 11:00 AM ET

About the Presentation

Much has been made of the deletion of the word "cumulative" from the CEQ's NEPA-implementing regulations in 2020. And then its proposed restoration in 2021. But can an adjective actually change the content of a NEPA document? The author presents a model for impact assessment based on statutes, regulations, and case law. The model does not change whether the word is in or out of the NEPA-implementing regulations. The U.S. Supreme Court made it clear that an agency is responsible to assess environmental consequences with a reasonably close causal connection to agency action (proximate cause, in the words of the Supreme Court, "akin to tort law"), and that an agency is not legally responsible to assess environmental consequences for which it does not have statutory authority to do anything about. Compliance with these standards does not depend on use of the adjective "cumulative". Nor do the NEPA-implementing regulations in any of their iterations mandate the use of the term.

The model is neutral on the use of the term. Environmental consequences are incremental, either adding or subtracting, or they are not consequences at all. The consequences of agency action are incremental on the affected environment, or it is not affected at all. Other actions with consequences that may be similarly incremental must be taken into account; the rules for inclusion and exclusion are presented. All of this is done with or without the use of the word "cumulative". There is much to be said about proximate cause and the proper scope of NEPA analysis that is not given in the NEPA-implementing regulations in any of their iterations. The operative method for environmental analysis is not what is "reasonably foreseeable", as in the proposed regulations. It is supposed to be a reasonably close causal connection. The word "reasonable" is supposed to modify the closeness of the causal connection, not the eventual foreseeability of any particular consequence. The model is completely faithful to the relevant statutes, regulations, and case law. 

About the Speaker

Owen Schmidt
Consultant
Owen L Schmidt LLC

Owen L. Schmidt, BA, MA, JD, has more than 32 years of service with the Federal Government. He was Senior Counsel with the U.S. Department of Agriculture, Office of the General Counsel in Portland, Oregon, and also a Special Assistant United States Attorney in the District of Oregon. Before joining USDA in 1991, he was an attorney for the Bonneville Power Administration, where he joined the legal staff after several years as an Environmental Specialist. He has been the NEPA trainer for the Northwest Environmental Training Center and provides an annual NEPA case law update for Law Seminars International since leaving Government.

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