The Evolution of nepa and the "Little nepas"

The Evolution of NEPA and the “Little NEPAs”

• The Evolution of NEPA and the “Little NEPAs”

• Daniel P. Selmi

• Loyola Law School

• Los Angeles

NEPA’s Progeny in 15 states:

• NEPA’s Progeny in 15 states:

• California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, Virginia, Washington, Wisconsin

• Plus the District of Columbia and Puerto Rico

• Others: “one half the states having some sort of NEPA requirement, eight of them…about as pervasive as the federal government.”

NEPA: “major federal actions” / “proposals for legislation

• NEPA: “major federal actions” / “proposals for legislation

• Hawaii: Land categories (state or county lands, conservation lands, shoreline areas).

• Indiana: State licenses or permits: “issuance of a license or permit by any agency of the state.”

• Connecticut: State-funded actions: “proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state.”

Wisconsin: Actions of state agencies, not to local governments or private parties unless their actions involve state agency regulation or funding. Robinson v. Kunach, 251 N.W.2d 449, 452 (Wis. 1977)

• Wisconsin: Actions of state agencies, not to local governments or private parties unless their actions involve state agency regulation or funding. Robinson v. Kunach, 251 N.W.2d 449, 452 (Wis. 1977)

• Maryland: “all state agencies”

• Virginia: “all state agencies, boards, authorities, and commissions…”

New York and California: includes local land use decisions.

• New York and California: includes local land use decisions.

• The NY SEQRA “has made the most fundamental change in the way land development proposals are handled by local governments since the enactment of the zoning and planning legislation over half a century ago.” Quoted in Rathkopf, The Law of Planning and Zoning § 9:31

Delegating the Decision over the Regulatory Scope:

• Delegating the Decision over the Regulatory Scope:

• Massachusetts: Secretary of Environmental Affairs “to establish general and specific categories of projects and permits which shall or shall not require environmental impact reports.”

• Indiana: air pollution, water pollution and solid waste boards “shall by rule define which actions constitute a major state action significantly affecting the quality of the human environment.”

More Massachusetts: Secretary of Environmental Affairs “shall determine the form, content, level of detail and alternatives required for the [environmental impact] report.”

• More Massachusetts: Secretary of Environmental Affairs “shall determine the form, content, level of detail and alternatives required for the [environmental impact] report.”

The CEQ Regulations: Based largely on Cal. experience

• The CEQ Regulations: Based largely on Cal. experience

• Now 30 plus years in operation

• Substantial deference by courts. Department of Transportation v. Public Citizen, 541 US 754 (2004)

• “Many states, in turn, emulated the CEQ NEPA Rules in their next rulemaking iteration.”

• Scoping: Massachusetts innovation to CEQ

• CEQ: Draft Guidance on NEPA Mitigation and Monitoring.

• Wisconsin: Environmental analysis shall substantially follow the regulations issued by the Council on Environmental Quality for EISs….

“Under a number of the little NEPAs, it has been held that that threshold for requirement of an EIS is lower than the federal threshold.” Sive and Chertok, “Little NEPAs and their Environmental Impact Assessment Procedures.”

• “Under a number of the little NEPAs, it has been held that that threshold for requirement of an EIS is lower than the federal threshold.” Sive and Chertok, “Little NEPAs and their Environmental Impact Assessment Procedures.”

• NEPA: “will cause an adverse environmental impact”

• Connecticut: “primary recommendation or initiation of actions which may significantly affect the environment.”

California: The “fair argument” standard

• California: The “fair argument” standard

• Friends of “B” Street v. City of Hayward, 106 Cal. App. 3d 988, 1002 (1980)

• Case by case determinations

• Massachusetts: Review Thresholds

• “identify categories of projects or aspects thereof of a nature, size or location that are likely, directly or indirectly, to cause damage to the environment.”

Washington:

• Washington:

• Cities and counties may raise the exemption limit for minor new construction to better accommodate the needs in their jurisdiction.

• Example: Exempt residential developments at any level between 4 and 20 dwelling units; (2) commercial buildings between 4,000 and 12,000 square feet. Exceptions apply, including if a rezone is required.

Type I: actions that experience has shown are more likely to have significant adverse environmental impacts

• Type I: actions that experience has shown are more likely to have significant adverse environmental impacts

• Type II: actions that have been determined not to have a significant adverse environment effect.

• Unlisted: all actions not Type I or Type II.

• “short” (2-page) and full Environmental Assessment Forms.

• No “conditional negative declarations” for Type I actions

Action Type List (Wisc. Admin. Code 150.20)

• Action Type List (Wisc. Admin. Code 150.20)

• Type I: Require full EIS

• Type II: Preparation of EA. Full EIS if proposed action may significantly affect quality of human environment. and decision procedures of the EIS process.

• Type III: No EA or EIS unless

• Type IV: Generally do not require an environmental assessment or EIS

Type I actions: Examples (617.4(b)(5) and (6)):

• Type I actions: Examples (617.4(b)(5) and (6)):

• “construction of new residential units that meet or exceed the following thresholds:

• 1. 50 units not connected to public water and sewage systems

• 2. In a city with population greater than 150,000 but less than 1 million: 1,000 units to be connected to public water and sewage systems

• 3. In a city of 150,000 persons or less: facility with more than 100,000 square feet of gross floor area.

Wisconsin: “reasonableness” standard in review of determination not to prepare an EIS. Wisc. Envtl. Decade v. Pub. Service Comm’n, 256 N.W.2d 149 (1977).

• Wisconsin: “reasonableness” standard in review of determination not to prepare an EIS. Wisc. Envtl. Decade v. Pub. Service Comm’n, 256 N.W.2d 149 (1977).

• Minnesota: “A determination of whether significant environmental effects result from this project is primarily factual and necessarily requires application of the agency’s technical knowledge and expertise…Accordingly, it is appropriate to defer to the agency’s interpretation of whether the standard is met.” Minn. Ctr. For Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 458 (2002).

New York: “the lead agency must take a hard look at all relevant impacts of the whole action…”

• New York: “the lead agency must take a hard look at all relevant impacts of the whole action…”

• For negative declaration to be upheld: record must show that agency identified the relevant areas of environmental concern, thoroughly analyzed them for significant adverse impact, and supported its determination with reasoned elaboration.

Washington:

• Washington:

• By statute: In any action involving an attack on a determination by a governmental agency relative to the requirement or the absence of the requirement, or the adequacy of a "detailed statement", the decision of the governmental agency shall be accorded substantial weight.

New York: State or local governments can designate “critical environmental areas”

• New York: State or local governments can designate “critical environmental areas”

• 1. Exceptional or unique setting

• 2. Exceptional or unique social, historic, archaeological, recreational or educational values

• 3. Inherent sensitivity to change

• “Raises a red flag” / Affects determination of significance.

The NEPA Experience: Environmental Assessments

• The NEPA Experience: Environmental Assessments

• Originally intended as brief “mini-impact” statement

• Now: EAs are often hundreds of pages long.

• Numbers: Each year 450 or so EISs; 40,000 EAs (followed by mitigated FONSI). The mitigated FONSI “is to the environmental review system what the plea bargain is to the criminal justice system.” Gerrard, The Effect of NEPA Outside the Courtroom, 39 ELR News and Analysis 10615.

• Compare: Minnesota Environmental Policy Act: less than 10 EISs per year; initial studies (EAWs) 150.

New York: Project sponsor is responsible for “preparing a draft EIS.

• New York: Project sponsor is responsible for “preparing a draft EIS.

• It can request the lead agency to do so, but the lead agency may refuse.

• “Project sponsors are responsible for the accuracy of the information they provide for EAFs and EISs.” SEQRA Handbook, p. 68.

• Formal process for “rejecting” submitted draft EIS.

• NEPA: EIS cannot be prepared by a project sponsor.

NEPA: No overt statutory role for the public. “Copies of such statement and the comments and views of the appropriate Federal, State and local agencies….shall be made available…to the public.” 42 U.S.C. § 4332.

• NEPA: No overt statutory role for the public. “Copies of such statement and the comments and views of the appropriate Federal, State and local agencies….shall be made available…to the public.” 42 U.S.C. § 4332.

• CEQ Regulations: agency shall “request comments from the public” on draft EIS, “affirmatively soliciting comments from those persons or organizations who may be interested or affected.”

Few little NEPAs require public hearings:

• Few little NEPAs require public hearings:

• Connecticut: Conn. Agencies Regs. §22a-1d: sponsoring agency “shall hold a public hearing on the [EIS] if 25 persons or an association having not less than 25 persons requests such a hearing…”

• North Carolina: N.C. Admin. Code tit. 1 §25.0604: State Project Agency “may hold a public hearing to complement the EIS process where significant public interest is expressed in the proposed activity….”

Wisconsin: When preparation of an EIS is required, EIS procedures require agencies to hold a “public informational hearing.”

• Wisconsin: When preparation of an EIS is required, EIS procedures require agencies to hold a “public informational hearing.”

• Minnesota: Agency must prepare formal environmental assessment worksheet if (1) 25 or more people sign a petition and (2) material evidence suggests that the action may have a significant environmental effect.

The Commenting Function:

• The Commenting Function:

• Hawaii: “Receive and respond to public comments…for draft environmental assessments….”

• Early consultation (scoping): “Many public agencies have found that early consultation solves many potential problems that would arise in more serious forms later in the review process.” 14 Cal. Code Regs. § 15083.

• The commenting function is widespread in the little NEPAs.

• Public participation is heralded.

Rationales for the heavy emphasis on public participation:

• Rationales for the heavy emphasis on public participation:

• 1. The Acceptance Rationale

• 2. The Civic Discourse Rationale

• “foster membership in the political community and enhance the ideals of democracy as a whole…” Tai, Three Asymmetries, 78 Temple L. Rev. 659, 678 (2005)

• 3. The Expertise Rationale:

• Take comments so as to “‘draw on the reservoir of public information and expertise which SEQRA intends to tap.’” Williamsburg Around the Bridge Block Ass’n v. Giuliani, 223 A.D.2d 64, 73 (N.Y. App. Div. 1996)

4. The Anti-Bias Rationale: ensuring that the SEQRA process is not a “two-handed card game between the local government and the sponsor of the project.” Salkin, SEQRA’s Silver Anniversary, 65 Albany L. Rev. 577, 585 (2001)

• 4. The Anti-Bias Rationale: ensuring that the SEQRA process is not a “two-handed card game between the local government and the sponsor of the project.” Salkin, SEQRA’s Silver Anniversary, 65 Albany L. Rev. 577, 585 (2001)

• 5. The Confrontation Rationale: Forcing public agencies to confront the environmental consequences of their actions. New York: at least a 10 day period before actual decision.

Adverse Results from Public Participation?

• Adverse Results from Public Participation?

• 1. Hawaii: “postcard” deluges of voluminous and repetitive public comments “many of whom have never read the draft [EIS].” Lisa A. Bail, The Voluminous and Repetitious Comments Issue under the Hawaii Envt’l Policy Act.

• 2. Ross, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 Nw U. L. Rev. 173, 225 (1997) (suggesting adverse results from mass participation in NEPA).

1. Decisional Sequences

• 1. Decisional Sequences

• Earliest possible time

• 2. Avoiding Duplication

• Tiering,

• Program EIRs/ EISs

• “Generic EISs” (NY)

• .

“SEQRA is still the most useful mechanism available that comes close to accomplishing what comprehensive and regional planning are supposed to accomplish.” Ientilucci, SEQRA: Down the Garden Path, 6 Alb. L. Envtl. Outlook J. 102 (2002).

• “SEQRA is still the most useful mechanism available that comes close to accomplishing what comprehensive and regional planning are supposed to accomplish.” Ientilucci, SEQRA: Down the Garden Path, 6 Alb. L. Envtl. Outlook J. 102 (2002).

• But: Mismatches between decisions and environmental effects

• 1. Cumulative effects.

• 2. State-local fragmentation of authority.

• Compare: NEPA

• Long Beach Pine Barrens Soc’y v. Planning Bd., 606 N.E.2d 1373 (1992).

The NEPA-SEPA Overlap: Solutions

• The NEPA-SEPA Overlap: Solutions

• 1. Encouraging joint documents: “State and federal agencies shall “cooperate…to the fullest extent possible to reduce duplication….” Haw. Code Rev. §11-200-25; see also 14 C.F.R. §1506.2(b).

• 2. “Can a NEPA EIS be used, without modification or change, as a SEQR EIS? In theory, yes, but rarely in practice.” SEQRA Handbook, p. 190.

District of Columbia: “Alternatives to the proposed action, including alternative locations.”

• District of Columbia: “Alternatives to the proposed action, including alternative locations.”

• “Whether an EIS must include consideration of offsite alternatives depends on whether the project is public or private.” Org. to Pres. Agric Lands v. Adams County, 913 P.2d 793, 798 (Wash. App. 1996).

SEQRA Handbook: offsite alternative appropriate where (1) agency is carrying out the project; (2) private applicant has evaluated alternative sites; (3) applicant owns or has options on such sites; and (4) applicant does not yet own the proposed site. SEQRA Handbook, 63-64.

• SEQRA Handbook: offsite alternative appropriate where (1) agency is carrying out the project; (2) private applicant has evaluated alternative sites; (3) applicant owns or has options on such sites; and (4) applicant does not yet own the proposed site. SEQRA Handbook, 63-64.

• Outcome: Most alternatives are on-site and, consequently, focus on project size.

The Little NEPA Norm: Alternatives and mitigation measures

• The Little NEPA Norm: Alternatives and mitigation measures

• Washington: EIS must discuss reasonable alternatives, including the proposed action with any mitigation measures.

• Minnesota: “feasible” alternatives or mitigation measures

• New York: alternatives “that are feasible, considering the objectives and capabilities of the project sponsor.”

• NEPA: both EISs and Environmental Assessments must discuss alternatives

NEPA Guidelines: 150 pages or less

• NEPA Guidelines: 150 pages or less

• EPA: 37% of EISs stay within that guideline

• North Carolina: 60 page maximum

• N.C. Admin. Code tit. 1 § 25.0603

• Washington: 75-150 pages

• Wash. Admin. Code § 197-11-425(4)

• New York: No set length. “Accepted EIS’s have ranged from as little as ten pages to multiple volumes.” SEQRA Handbook, p. 100.

NEPA is “essentially procedural.”

• NEPA is “essentially procedural.”

• NEPA “does not impose substantive duties…but simply prescribes the necessary process for preventing uninformed—rather than unwise—agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 333 (1989).

• But what are mitigated FONSIs if not substantive?

New York: Choose alternatives which, consistent with social, economic, and other essential considerations, minimize or avoid environmental effects “to the maximum extent practicable”

• New York: Choose alternatives which, consistent with social, economic, and other essential considerations, minimize or avoid environmental effects “to the maximum extent practicable”

• District of Columbia: Disapprove action if the public health, safety or welfare is “imminently and substantially endangered

Washington: “While NEPA and SEPA are substantially similar in intent and effect…the public policy behind SEPA is considerably stronger than behind NEPA.” ASARCO, Inc. v. Air Quality Coal., 601 P.2d 501 (Wash. 1979).

• Washington: “While NEPA and SEPA are substantially similar in intent and effect…the public policy behind SEPA is considerably stronger than behind NEPA.” ASARCO, Inc. v. Air Quality Coal., 601 P.2d 501 (Wash. 1979).

• Rev. Code Wash. 43.21C.020(2)(b): “fundamental and inalienable right to a healthful environment.”

• Deleted from NEPA prior to passage.

• But: Courts are unclear as to whether the SEPA supplied substantive authority or a substantive mandate

Washington: Plan or Rule-Based Mitigation

• Washington: Plan or Rule-Based Mitigation

• Agencies may mitigate environmental impacts, but mitigation shall be based on policies, plans, rules or regulations formally designated by the agency…and in effect when the DNS or DEIS is issued…

• The Little NEPAs Overall:

• “On a nationwide basis, there are few if any cases holding, based on the little NEPAs…that a decision was improper because the environmental impact was excessive.” Gerrard, Litigation Under the “Little NEPA Laws.”

• .

“Washington courts have recognized three potential kinds of direct substantive effect: (1) the interpretation and administration of other state laws in accordance with SEPA’s policies; (2) the supplementation of agency authority so that agency action may be based on otherwise unauthorized environmental grounds; and (3) judicially enforceable substantive limitations on government action.” Settle, The Washington Environmental Policy Act: A Legal and Policy Analysis (2010) §18.01

• “Washington courts have recognized three potential kinds of direct substantive effect: (1) the interpretation and administration of other state laws in accordance with SEPA’s policies; (2) the supplementation of agency authority so that agency action may be based on otherwise unauthorized environmental grounds; and (3) judicially enforceable substantive limitations on government action.” Settle, The Washington Environmental Policy Act: A Legal and Policy Analysis (2010) §18.01

Washington: “even if the action had previously been ministerial, it became environmentally discretionary with the enactment of SEPA.”

• Washington: “even if the action had previously been ministerial, it became environmentally discretionary with the enactment of SEPA.”

• Settle, The Washington Environmental Policy Act §18.01[2]; see Polygon Corp. v. City of Seattle, 578 P.2d 1309 (1978)

“The agency may even impose conditions that are beyond the agency’s jurisdiction, unless those conditions would intrude upon another agency’s jurisdiction.”

• “The agency may even impose conditions that are beyond the agency’s jurisdiction, unless those conditions would intrude upon another agency’s jurisdiction.”

• SEQRA Handbook, 152; see Town of Henrietta v. Dept. of Envt’l Conservation, 76 A.D.2d 215 (App. 1980).

New York 863

• New York 863

• California 808

• Washington 316

• New Jersey 64

• Massachusetts 50

• Connecticut 42

• Minnesota 40

• Wisconsin 38

• Hawaii 29

• North Carolina 19

Montana 15

• Montana 15

• Delaware 10

• Mississippi 7

• South Dakota 6

• Maryland 5

• District of Columbia 5

• Georgia 3

• Michigan 3

• Puerto Rico 2

• Illinois and Indiana 2

• Virginia 1

The Supreme Court and NEPA: a unanimous run from Vermont Yankee.

• The Supreme Court and NEPA: a unanimous run from Vermont Yankee.

• The States: A different picture

• Virginia Environmental Policy Act: No review of substantive content of EIS. Murray v. Green, 396 S.E.2d 653 (1990)

1990-2006: plaintiffs won approximately 16% of the SEQRA cases where an EIS had been prepared. Michael B. Gerrard, Survey of SEQRA Cases, N.Y.L.J. vol. 239 No. 60 (Mar. 28, 2008).

• 1990-2006: plaintiffs won approximately 16% of the SEQRA cases where an EIS had been prepared. Michael B. Gerrard, Survey of SEQRA Cases, N.Y.L.J. vol. 239 No. 60 (Mar. 28, 2008).

“The four states with the highest per capita number of decisions are all among the little NEPAs of broadest applicability.” Michael B. Gerrard, Litigation under the “Little NEPA” Laws (2005).

• “The four states with the highest per capita number of decisions are all among the little NEPAs of broadest applicability.” Michael B. Gerrard, Litigation under the “Little NEPA” Laws (2005).

1. Development of environmental law in a less overtly

• 1. Development of environmental law in a less overtly

• federalized framework

• 2. The Complexity Problem: implementing an overlay system

• 3. Thresholds: the tradeoff between predictability versus comprehensiveness.

• 4. The extension into local land use decisions

5. The Importance of Public Participation

• 5. The Importance of Public Participation

• 6. The Problem of Sequential Decisions

• 7. Projections of ecosystem change: Ex ante predictions of future? Consequence: the importance of monitoring

• 8. The premise of single decisionmaking events versus adaptive management (ongoing, revisiting, readjusting)

9. Ambivalence about alternatives: Otherwise: “what you have left is the documentation of the effects of a decision already made.”

• 9. Ambivalence about alternatives: Otherwise: “what you have left is the documentation of the effects of a decision already made.”

• 10. Integrating environmental review into the heart of project planning (as opposed to integrating it with agency processes).

• 11. The EIS process and bargaining

12. Environmental Knowledge: 1970 and 2011.

• 12. Environmental Knowledge: 1970 and 2011.

• 13. Process, not knowledge, has proved more significant.

• 14. CEQA at 40: The Securities Law Syndrome?