National Environmental Policy Act Webinar - Welcome to … · 2012-11-07 · The Cuyahoga River in...

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Transcript of National Environmental Policy Act Webinar - Welcome to … · 2012-11-07 · The Cuyahoga River in...

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A new movement was forming, called Environmentalismit drew on both conservationism and preservationist. The population wasit drew on both conservationism and preservationist. The population was

better educated and more affluent than any group in history. They were enjoying newfreedoms and higher levels of disposable income. But the headlines were filled withreminders of the toxic byproducts of our uncontrolled industrial heritage combined withgroundbreaking feats in civil engineering. The New Deal sparked a massive public worksprogram that created great feats, a national highway system, hydroelectric dams, etc.But the effects on communities, wildlife and environmental quality were unanticipatedand widely felt. Added to that, Pollution from largely unregulated industry was reachinga breaking point and affecting human health in some very visible ways.

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The incident happened in Donora, Pa., a mill town on the Monongahela River south ofPittsburgh. Donora's economy ran on coal. Donora made its living from a steel mill thatPittsburgh. Donora's economy ran on coal. Donora made its living from a steel mill thatburned coal to fire coke ovens, melt iron ore in blast furnaces, and produce finishedsteel in open hearths.

In those days, mill emissions were unregulated and uncontrolled. Smoky, smelly air thatkilled the grass and ruined the paint was thought to be an unavoidable part of living withindustries that employed thousands.

On Tuesday, October 26, 1948, an atmospheric inversion slammed a lid on Donora.Inversions prevent the air from mixing and dispersing pollution. All the airborne detritusfrom uncontrolled furnaces, ovens, stoves, and locomotives stayed put in the valley. Thefoul mixture–carbon monoxide, sulfur dioxide, metal dust, fluoride compounds–mixedwith fog.

as the sickness and misery spread, the mills kept running. No one in authority had anypower to order them off line. On Sunday morning, Halloween, the zinc mill managergrudgingly shut the smelter down for a day under orders from the front office.On Monday, Nov. 1, the inversion lifted. Rains came and scrubbed the filth from theskies. By the time blue skies returned, 20 Donorans had died. Nearly half the town of14,000 had fallen sick.

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Industrial manufacturing plants directly discharged hazardous chemicals into streams,lakes and rivers.lakes and rivers.Raw sewage was routinely released as well. The results were predictable, foul odors,fish kills, but none more dramatic than the fires.FireThe Cuyahoga River in Cleveland Ohio became a poster child for the nation of just howbad water quality in our nation’s rivers and lakes had become. The river had for almost acentury been regarded as an open sewer that ran through the heart of the city. Fires onthe river dated back as far as 1868. But one that occurred in 1969 triggered a spark ofpress, and coupled with a dramatic photo of a black, gooey hand coming out of theCuyahoga like a B-movie swamp monster defined the plight of the Cuyahoga. Byassociation, it indicted all industrial American cities -- and a culture that for a centuryhad generally viewed natural waterways as a means to an end.

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The plan was opposed vigorously during a six-hour knock-down-drag-out fight atCity Hall in early December 1962, during which Assemblyman Louis DeSalvioCity Hall in early December 1962, during which Assemblyman Louis DeSalviofamously called Robert Moses a “cantankerous, stubborn old man” and said thetime had come for him to release his grip on the city’s development. The citizensof NYC were getting frustrated with having no input into the decisions beingimposed on their neighborhoods.

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Rachel Carson, to bring the pesticide problem to public attention and, incidentally, tolaunch the modern environmental movement. Silent Spring, published in September,launch the modern environmental movement. Silent Spring, published in September,1962, was a brilliant book, but also one that appeared when the time clearly was ripe.The public seemingly had been primed by publicity about radioactive fallout, fears ofpesticide residues on cranberries and the thalidomide scandal, the latter enhanced bypictures of infants born with distorted limbs.

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Numerous environmental action groups were forming as a reaction to these unfoldingevents, Environmental Defense Fund, Natural Resources Defense Council, Friend of theevents, Environmental Defense Fund, Natural Resources Defense Council, Friend of theEarth. These groups were throwing there weight and funds into politics. a new crop ofpoliticians came to office in the mid 60’s with a perceived mandate from theirconstituents to do something about these problems. The people wanted the advantagesof new products, increased food production, easier transportation but they wantedaccountability as well and some control over the most offensive impacts.

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Signed by President Nixon as his first act of 1970, in response to an overwhelmingnational sentiment that federal agencies should take the lead in providing greaternational sentiment that federal agencies should take the lead in providing greaterprotection for the environment. Nixon proclaimed the 1970s as “the environmentaldecade.”NEPA established a first ever National Policy statement on the environment “to createand maintain conditions under which man and nature can exist in productive harmony,and fulfill the social, economic, and other requirements of present and futuregenerations of Americans.”

, provides an interdisciplinary framework for federal agencies to assess and discloseenvironmental impacts. Nation’s broadest environmental law. It applies to all federalagencies and most of the activities they manage, regulate of fund.It was followed by a cascade of additional environmental protection laws, the CleanWater Act and the Clean Air Act in 1972, and then the Endangered Species Act in 1973.

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Purpose. Sec 2 [42 USC 4321]

The purpose of NEPA according to the Supreme Court to “place upon an agency theobligation to consider every significant aspect of the environmental impact of aproposed action.” and to “ensure that the agency will inform the public that it hasconsidered environmental consequences in its decision making process.”

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The open endedness of NEPA has led to many interpretations and case-law precedents,as well as a great deal of debate. Implementation of NEPA has as a result relied heavilyas well as a great deal of debate. Implementation of NEPA has as a result relied heavilyon case history to define the intention behind the wording.Calvert Cliffs’ Coordinated Committee v. Atomic Energy Commission, D.C. Cir. 1971 – oneof the first court cases to interpret NEPA set the tone for all subsequent cases

1 – The general substantive policy is flexible, “it leaves room for aresponsible exercise of discretion and may not require particular substantive resultsThe procedural provisions are not as flexibleAgencies are compelled to take environmental values into account. NEPA requiresagencies to consider environmental issues just as they consider other matters withintheir mandates.Mandates a careful and informed decision-making process and creates judiciallyenforceable duties. Courts will not reverse a substantive decision on the merits but if thedecision were made in a capricious fashion without good faith consideration of theenvironmental factors it is the responsibility of the courts to reverse.

In other words, NEPA doesn’t require agencies to avoid all environmental impacts, itrequires them to identify them, consider them, and make an informed decision on howto proceed and to disclose that process to the public.

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This passage has been interpreted by the court system over the past 40 years. Case lawhas developed the following definitions.has developed the following definitions.The idea of significance has been the subject of frequent litigation from the beginning.The term is used not only to determine what federal actions warrant NEPA, but alsowhat impacts are considered large enough to require a full scale EIS. CEQ regulations usethe term synonymously with Major. An early court case Hanley v. Kleindienst from 1973challenged a GSA determination of no significance on the construction of a jail in NYC. Akey finding of that case was that agencies must develop a reviewable environmentalrecord for the purpose of a threshold determination of significance under 102(2)(C), sodecisions of insignificance can’t be made capriciously. Also, these records must providean opportunity for public input.

A federal action includes any action taken directly by an agency, as well as agencyactions that allow private individuals to affect the environment. An action is federal if anagency is directly involved through rule making, permitting, control ( PIH dispositionapprovals) or funding (HOME grants, mortgage insurance, CDBG funding, etc.).

Impacting the human environmentdirect caused by an action and occur in the same time and place as the

actiondemolition of a historic resource

indirect occur later in time and degrees removed from the originalincreased sedimentation rates downstream due to

increase runoff from a new developmentCumulative results from the effects of an action combined with other

past, present or reasonable foreseeable future- school crowding from increase in density as a result of a

series of large housing developments in a single zone- air quality impacts due to multiple large scale

construction projects happeningsimultaneously in a general vicinity.

Human environment includes natural and physical environment and the relationship ofhumans to that environment. Allows for a link between the effects on the physical and

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A proposal exists when an agency has a goal and is actively preparing to make a decisionon one or more alternative means of accomplishing that goal and the effects can beon one or more alternative means of accomplishing that goal and the effects can bemeaningfully evaluated.

In the HUD world, the granting of HUD money is the major federal action.

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Prior to the E.O the CEQ governed the implementation of NEPA via a set of guidelines.These guidelines lacked the weight of official regulations and were often ignored. ThisThese guidelines lacked the weight of official regulations and were often ignored. Thiscontributed to tendency of NEPA implementation being guided by lawsuits.

With the advent of specific regulations, federal agencies were then required to developtheir own set of written regulations for implementation.

The general purpose of 1500 is to implement the action-forcing items of NEPA underTitle 1, Section 102(2), it is a set of instructions for integrating NEPA into the earlyplanning process, evaluating significance, preparing the detailed statements andinvolving the public in the decision making process.

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Roadmap for federal agencies to follow in determining whether NEPA compliance isrequiredrequired

Classes of actions that require an EISCategorical Exclusion – those that normally do not require an EISEA – actions that are beyond CatEx but not necessarily an EIS; if proposal doesn’t requirean EIS and is not covered by a CatEx, then EA

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Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delayslater in the process, and to head off potential conflicts. Each agency shall:(a) Comply with the mandate of section 102(2)(A) to “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences andthe environmental design arts in planning and in decision-making which may have an impact on man's environment,” as specified by §1507.2.(a) Comply with the mandate of section 102(2)(A) to “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences andthe environmental design arts in planning and in decision-making which may have an impact on man's environment,” as specified by §1507.2.(b) Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses. Environmental documents and appropriateanalyses shall be circulated and reviewed at the same time as other planning documents.(c) Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses ofavailable resources as provided by section 102(2)(E) of the Act.(d) Provide for cases where actions are planned by private applicants or other non-Federal entities before Federal involvement so that:(1) Policies or designated staff are available to advise potential applicants of studies or other information foreseeably required for later Federal action.(2) The Federal agency consults early with appropriate State and local agencies and Indian tribes and with interested private persons and organizations when its owninvolvement is reasonably foreseeable.(3) The Federal agency commences its NEPA process at the earliest possible time.

§ 1501.7 Scoping.There shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action. This processshall be termed scoping. As soon as practicable after its decision to prepare an environmental impact statement and before the scoping process the lead agency shall publish anotice of intent (§1508.22) in the Federal Register except as provided in §1507.3(e).(a) As part of the scoping process the lead agency shall:(1) Invite the participation of affected Federal, State, and local agencies, any affected Indian tribe, the proponent of the action, and other interested persons (including thosewho might not be in accord with the action on environmental grounds), unless there is a limited exception under §1507.3(c). An agency may give notice in accordance with§1506.6.(2) Determine the scope (§1508.25) and the significant issues to be analyzed in depth in the environmental impact statement.(3) Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review (§1506.3), narrowing the discussionof these issues in the statement to a brief presentation of why they will not have a significant effect on the human environment or providing a reference to their coverageelsewhere.(4) Allocate assignments for preparation of the environmental impact statement among the lead and cooperating agencies, with the lead agency retaining responsibility for thestatement.(5) Indicate any public environmental assessments and other environmental impact statements which are being or will be prepared that are related to but are not part of thescope of the impact statement under consideration.(6) Identify other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently with,and integrated with, the environmental impact statement as provided in §1502.25.(7) Indicate the relationship between the timing of the preparation of environmental analyses and the agency's tentative planning and decision-making schedule.(b) As part of the scoping process the lead agency may:(1) Set page limits on environmental documents (§1502.7).(2) Set time limits (§1501.8).(3) Adopt procedures under §1507.3 to combine its environmental assessment process with its scoping process.(4) Hold an early scoping meeting or meetings which may be integrated with any other early planning meeting the agency has. Such a scoping meeting will often be appropriatewhen the impacts of a particular action are confined to specific sites.(c) An agency shall revise the determinations made under paragraphs (a) and (b) of this section if substantial changes are made later in the proposed action, or if significant newcircumstances or information arise which bear on the proposal or its impacts.

ScopingOnce an agency has identified a proposal for a major federal action that may significantly affect the quality of the human environment, it must prepare an EIS. The first step isscoping, “an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action.” Scoping is tobegin “as soon as practicable” after an agency has decided to prepare an EIS and must involve affected federal, state, and local agencies, Indian tribes, the proponent of theaction, and the public.Scoping is the point when an agency establishes a schedule for the entire NEPA process. Agencies are encouraged to set time limits appropriate to the proposed action beingreviewed. Factors to be considered include: the potential for environmental harm that may result from the proposed action; its size and extent; the public need for the proposedaction; the number of persons and agencies involved; and whether the proposed action is controversial. Scoping meetings are to be held early and may be integrated with otherearly planning work. In the scoping process an agency must, “indicate the relationship between the timing of the preparation of environmental analyses and the agency’stentative planning an decision-making schedule.”

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Emergency situation left out here

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I.e., will not significantly affect the quality of the human environment

HUD 58.34.e.g.

Administrative and management activities (58.34(a)(3))Certain public services (58.34(a)(4))Engineering or design costs (58.34(a)(8))

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1506.11Recognizes that in some instances an emergency may make compliance with NEPARecognizes that in some instances an emergency may make compliance with NEPAtemporarily infeasible.

There are two general categories of circumstances in which an agency may avail itself ofthe emergency exemption. In the first, if a time schedule expressly or impliedly imposedon an agency’s action by a statue or regulation simply does not allow an agency to fulfillNEPA’s requirements before taking the action at issue, the courts have found that thestatute or regulation takes precedence over NEPA. For example, the Natural Gas Actimposed a statutory duty on the Federal Power Commission to “take effective interimcurtailment action in the exigencies presented by gas shortages.” In Gulf Oil Corp. v.Simon, the court stated, “Congress underscored the need for immediate action byspecifying … that the President should promulgate regulations within 15 days after theenactment (of the Emergency Petroleum Allocation Act)… Congress must have intendedthat the President proceed forthwith to allocate oil supplies without the elaborateformal determination of environmental impact…” IN Atlanta Gas Light Co., the FifthCircuit held that the time-consuming analysis ordinarily required by NEPA did notsuspend the duty imposed by the NGA.

In the second scenario, the circumstances surrounding the agency’s action makecompliance with NEPA prior to the action impracticable. Such a situation may result, forexample, when certain national security concerns are present. In Valley Citizens for aSafe Environment v. Vest, the Air Force was permitted to bring flights into Westover AirForce Base to serve Persian Gulf operations based on CEQ certification of an emergency,the Air Force’s commitment to prepare an EA as soon as possible, and specific militaryexigencies. Another possible example is when an agency must act to protect publichealth or safety.

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Definition 1508.4

Categorical exclusions are intended to facilitate agency compliance with NEPA byidentifying common actions that will rarely, if ever, be major federal actions withpotentially significant impacts on the human environment.

While the identification of specific categorical exclusions is largely left to the discretionof the agencies, that discretion is constrained by the CEQ regulations that define thepurpose of categorical exclusions and require agencies to adopt exceptions to theCatExes. In recent years, the CEQ has encouraged agencies to make greater use of theirauthority to define CatExes. In 2010 CEQ issued final guidance setting forth an approachfor adoption and administration of CatExes going forward.

Agencies must consult with CEQ when developing a CatExMust summarize the information in the agency’s record that supports theproposed exclusionMust identify how extraordinary circumstances may “limit the use of thecategorical exclusion:And must provide for public comment.

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1508.9EA is not the “detailed statement” required by NEPA section 102(2)(C) – it’s anEA is not the “detailed statement” required by NEPA section 102(2)(C) – it’s anadministrative creation originating in the CEQ regulations. But it has evolved to be thedominant form of environmental analysis under NEPAOver 50,000 EAs prepared annually (average of fewer than 500 EISs)As reliance on EAs has increased, have expanded beyond concise document described inCEQ regulations

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1508.9(b)The EA requires only brief discussions of:The EA requires only brief discussions of:

The need for the proposalAlternatives to the proposalEnvironmental impacts of the proposed action and its alternatives

It’s really here where NEPA incorporates all other environmental lawsA list of agencies and persons consulted in developing the EA

Include no action alternative

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The Significance Determination is a crucial aspect of the EA. That is, whether there is a “Findingof No Significant Impact” and thus no further action required under NEPA, or a finding ofof No Significant Impact” and thus no further action required under NEPA, or a finding ofsignificance, which would then require an EIS a crucial aspect of EAWhereas the “major federal action” is not usually a difficult matter for agencies or courts todetermine, what constitutes “significantly affecting the quality of the human environment”, thedetermination of significance is often more problematic.

Severity – 10 Factors(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if theFederal agency believes that on balance the effect will be beneficial.(2) The degree to which the proposed action affects public health or safety.(3) Unique characteristics of the geographic area such as proximity to historic or culturalresources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically criticalareas.(4) The degree to which the effects on the quality of the human environment are likely to behighly controversial.(5) The degree to which the possible effects on the human environment are highly uncertain orinvolve unique or unknown risks.(6) The degree to which the action may establish a precedent for future actions with significanteffects or represents a decision in principle about a future consideration.(7) Whether the action is related to other actions with individually insignificant but cumulativelysignificant impacts. Significance exists if it is reasonable to anticipate a cumulatively significantimpact on the environment. Significance cannot be avoided by terming an action temporary orby breaking it down into small component parts.(8) The degree to which the action may adversely affect districts, sites, highways, structures, orobjects listed in or eligible for listing in the National Register of Historic Places or may cause lossor destruction of significant scientific, cultural, or historical resources.(9) The degree to which the action may adversely affect an endangered or threatened species orits habitat that has been determined to be critical under the Endangered Species Act of 1973.(10) Whether the action threatens a violation of Federal, State, or local law or requirementsimposed for the protection of the environment.

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Given the importance of the significance determination resulting from preparation of an EA, federalagencies have in many instances adjusted the proposed action in order to stay below the threshold ofagencies have in many instances adjusted the proposed action in order to stay below the threshold ofsignificance and so justify issuance of a FONSI rather than trigger preparation of an EIS.

CEQ regs don’t speak directly to mitigated FONSI, but Forty Questions Memorandum does.Mitigation measures may be relied upon to make a finding of no significant impact only if theyare imposed by statute or regulation, or submitted by an applicant or agency as part of theoriginal proposal. As a general rule, the regulations contemplate that agencies should use a broadapproach in defining significance and should not rely on the possibility of mitigation as an excuseto avoid the EIS requirement. In some instances, where the proposal itself so integratesmitigation from the beginning that it is impossible to define the proposal without including themitigation, the agency may then rely on the mitigation measures in determining that the overalleffects would not be significant (e.g. where a n application for a permit to build a small hydrodam is based on a binding commitment to build fish ladders, to permit adequate downstreamflow, and to replace any lost wetlands, wildlife habitat and recreational potential). In thoseinstances, agencies should make the FONSI and EA available for 30 days of public commentbefore taking action. Section 1501.4(e)(2).

Courts have given little deference to limiting interpretation by CEQ. Cabinet MountainsWilderness/Scotchman’s Peak Grizzly Bears v. Peterson --- if proposal is modified prior to implementationby adding specific mitigation measures which completely compensate for any possible adverseenvironmental impacts stemming from the original proposal, the statutory threshold of significantenvironmental effects is not crossed and an EIS is not required. To require an EIS in such circumstanceswould trivialize NEPA and would “diminish its utility in providing useful environmental analysis for majorfederal actions that truly affect the environment.”

BUT fact that mitigation can be relied upon doesn’t mean that any proposed mitigation will be suffice.Expand here with Preservation Coalition, Inc., v. Pierce where 9th Circuit rejected HUD’s reliance on arrayof measures to be carried out by third parties not subject to HUD’s control and direction.

Mitigation measures also have been rejected by courts. EXPAND (194)

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Grizzly Bear – Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. PetersonCourt upheld Forest Service’s approval of mineral exploration in a designatedCourt upheld Forest Service’s approval of mineral exploration in a designatedwilderness area, based on an EA that included recommendations for mitigationmeasures to minimize or avoid impacts on grizzly bears“If … the proposal is modified prior to implementation by adding specificmitigation measures which completely compensate for any possible adverseenvironmental impacts stemming from the original proposal, the statutorythreshold of significant environmental effects is not crossed and an EIS is notrequired. To require an EIS in such circumstances would trivialize NEPA andwould “diminish its utility in providing useful environmental analysis for majorfederal actions that truly affect the environment.”

Speed Limit – Audubon Society of Central Arkansas v. DaileyCourts have also emphasized the need for an agency to examine in the EA thepossible impacts if, for some foreseeable reason, the identified mitigationmeasures are not carried out.“We emphasize the requirement that mitigation measures be supported bysubstantial evidence in order to avoid creating a temptation for federal agenciesto rely on mitigation proposals as a way to avoid preparation of an EIS.”In particular – “… the EA itself comes very close to explicitly acknowledging thatwithout the enforcement of the 35 mph speed limit the project would havesignificant impact on the environment, yet the administrative record shows thatthe entity responsible for enforcing the speed limit has not enforced it on theexisting road.”

Wetlands – Abenaki Nation of Mississquoi v. HughesCompensatory wetlands mitigation satisfactorily brought a hydroelectric projectbelow the threshold of significance for an EIS..Also, Friends of the Payette v. Horseshoe Bend Hydroelectric Co. – compensatorywetland replacement mitigation, incorporation of mitigation measures for baldeagles and fishery protection in permit, and mitigation for recreation and otherimpacts sufficient to support FONSI. 30

Applicants can’t prepare

Proposal ID’ed that may significantly affect the quality of the human environment … THEN PREPARE EISStep 1: Scoping

Early and open process for determining the scope of issues to be addressed and foridentifying the significant issues related to a proposed actionScoping should begin as soon as practicable after agency has decided to prepare EISScoping must involve affected federal, state and local agencies, Indian tribes, theproponent of the action and the public.Scoping is point where agency establishes a schedule for the entire NEPA process

Step 2: Alternatives AnalysisCalled lynchpin of EIS2 separate alternatives analysis requirements

102(2)(C) which details contents of EIS requires “alternatives to the proposed action”Fed agencies also directed to “study, develop, and describe appropriate alternatives torecommended courses of action in any proposal which involves unresolved conflictsconcerning alternative uses of available resources.”

Regs require alternatives section of EIS to include following 6 elementsRigorous exploration and objective evaluation of all reasonable alternatives and adiscussion about why alternatives were eliminated for detailed studySubstantial treatment of each alternative considered in detail, including the proposedaction, so that reviewers may compare their merits.Reasonable alternatives outside the jurisdiction of the lead agencyThe alternative of no actionThe agency’s preferred alternative or alternatives,Appropriate mitigation measures not included in the proposed action or alternatives

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May be oral hearings

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Recognize this is busy slide – meant to show that EIS’s are involved documentsPage limits force things into appendixPage limits force things into appendix

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20 States have implemented NEPA style laws for state level projects.

International lending agency NEPA like requirements have created a globalenvironmental policy fashioned after NEPA, affects over 100 countries around the world.It has fundamentally changed the way we approach planning our actions and putconsideration for the environment on par with consideration of economic concerns.Every federal agency in existence now has staff dedicated to environmentalconsiderations.

This single piece of legislation has greatly affected the entire world. In America inparticular, our young people simply can’t imagine a landscape that would allow for thepossibility of rivers of fire or the willful obliteration of sensitive resources. It changed theway we act by changing the way we think.

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