Expeditious NEPA Compliance by the Shortest Applicable Process

Expeditious NEPA Compliance by the Shortest Applicable Process: How to Do It?

The American Recovery and Reinvestment Act of 2009 (ARRA) requires that adequate resources be devoted to ensuring that applicable environmental reviews are completed on projects funded under the act, that such reviews be completed “on an expeditious basis,” and that “the shortest applicable process allowed under the National Environmental Policy Act be utilized." What does this mean for a local government, federal agency, or private firm involved in ARRA work?

NEPA and Its Kin
The National Environmental Policy Act (NEPA), enacted in 1969, establishes general policy favoring taking care of the environment, and specifically requires that federal agencies consider the effects of work they propose to fund on “the quality of the human environment.” A number of other laws have similar requirements – notably the Endangered Species Act (ESA) and Section 106 of the National Historic Preservation Act (NHPA). All these laws apply to ARRA-funded projects.

The Purpose of Review
The (often forgotten) purpose of review under NEPA and its kin is to see what the environmental impacts will be if the project being reviewed is carried out, and if such impacts are severe, to seek reasonable ways to avoid or reduce them.

Adequate Resources
“Adequate resources” to complete reviews under NEPA generally means enough money and time to carry out studies of potential effects, to consult with the interested public and with experts as needed to define the effects and explore ways to reduce or avoid them, and to implement whatever impact avoidance or reduction schemes are developed. What this means in any particular case, of course, depends on local circumstances.

Shortest Applicable Process
Each federal agency has its own procedures for doing NEPA review, but under the general regulations issued by the Council on Environmental Quality (CEQ) there are three ways to complete review. Which one is appropriate depends on how severe the impacts of the proposed project are likely to be.

Categorical exclusion screening. Many project types are “categorically excluded” from review under NEPA – meaning that in theory, their likely impacts are so minor that there is no need to review them at all. However, because theory is not always reflected by reality, the regulations require that projects thought to fit into excluded categories be screened somehow to determine whether “extraordinary circumstances” exist that require a higher level of review. Exactly how this screening is done – and what happens if extraordinary circumstances are discovered – depends on the NEPA procedures of the relevant federal agency.

Environmental assessment. Where a project is not categorically excluded, but the severity of its impacts isn’t known, the responsible federal agency is required to perform an “environmental assessment” (EA). The EA is supposed to be a “brief but thorough” analysis to determine whether the project’s impacts are likely to be significant. If they aren’t, the agency can issue a “finding of no significant impact” (FONSI) and proceed. If there are likely to be significant impacts, the agency must prepare an environmental impact statement.

Environmental Impact Statement. An environmental impact statement (EIS) is a detailed analysis of a project’s impacts, and of alternatives to avoid or reduce the impacts. NEPA doesn’t prohibit having significant impacts on the environment, but it does require a hard examination of what they are, and real efforts to find ways to avoid or reduce them. The EIS is considered by the agency in deciding whether and how to proceed with the project; once a decision is made, the agency issues a “record of decision” (ROD) and proceeds. The ROD often lays out what is to be done to avoid or reduce impacts.

Complying with NEPA (and its kin) on an ARRA Project
Generally speaking, the shortest NEPA process is screening a categorically excluded project, so – again generally speaking – it’s best to allocate ARRA funds to projects that fall into categories excluded from NEPA review under the relevant agency’s NEPA procedures. However, there are pitfalls in this approach, because depending on the project, there may be “extraordinary circumstances” that cause considerable delay.

The EA and FONSI generally comprise the next shortest NEPA process, but here again if there are significant impacts, they can lead to significant delays. The EIS-ROD is usually the most complicated, longest form of NEPA review.

The worst delays of all result from trying to sweep impacts under the rug, or from conducting a “quickie” analysis that doesn’t look fully and comprehensively at the project’s potential impacts and seek ways to resolve them – unless, of course, you’re successful in doing so.

As a general rule, it is wisest to assume that impacts will occur, and allocate the resources necessary to identify and resolve them, as an orderly part of your project. Remember, NEPA and most of its kin don't prohibit having environmental impacts; they simply require that they be acknowledged, revealed to and discussed with the public, and resolved somehow if there's a way to do so.

Don’t Forget Those Kin
In carrying out review under NEPA, don’t forget all the related laws – ESA, Section 106 of NHPA, the Clean Air Act, the Clean Water Act, a host of others. Review under these laws is just as mandatory as is review under NEPA, and one does not substitute for another. In other words, the fact that you’ve complied with NEPA doesn’t mean you’ve complied with NHPA or ESA or any of the others – unless you have, following the regulations relevant to each of them.

What If Your Project is “Shovel-Ready?”
There’s been a lot of talk in the run-up to ARRA about funding only projects that are “shovel-ready.” Presumably this means projects on which, among other things, NEPA review has been completed. If review under NEPA and its kin has already been completed on your project, that’s definitely a good thing, but be careful. It’s not always easy to know whether review really has been completed. Sometimes NEPA has apparently been complied with but Section 106 of NHPA or some other review requirement has not. Sometimes the law was “complied with” years ago, and since then laws or circumstances have changed, creating the need for further review. For example, no one was giving much consideration ten years ago to a project’s potential impacts on climate change, but now it’s a big issue. Similarly , it’s only been in the last decade or so that NEPA analysts have begun systematically to examine “environmental justice” issues – will this project have disproportionate adverse impacts on the environments of low income or minority people? “Cumulative effects” – how this project’s effects will contribute to the general pattern of change in a resource or an area – is another issue that has begun to get much more attention in recent years than in the past; it’s been the basis for a good deal of project-stopping litigation. So a project that was “shovel-ready” a decade ago may not be so ready today; older impact analyses may need some tuning-up.

Who Can Help (or Hurt) You?
There are innumerable consulting firms eager to help you complete NEPA review on your projects, but be careful. The environmental impact assessment (EIA) industry is not very well regulated or overseen by government or anyone else. As a result, there are a lot of not-particularly competent, and not-especially ethical, companies out there. Different companies can also mean different things when they say they do “environmental” assessments. Some companies are essentially engineering firms that focus on solving problems of air and water pollution; others pay close attention to impacts on natural resources but don’t deal very well with, say, impacts on the urban environment or historic buildings, while others know how to deal with the built environment but aren’t very good with plants and animals. You need to do some research to find the right kind of help. Checking with state and local regulators is a good way to start, but there is no simple, universally applicable way to make sure you get the right kind of assistance. A lot depends simply on thinking about what you propose to do and what it’s going to do to the world. Will it dig up a lot of ground? Knock down or modify a building or neighborhood? Remove a lot of trees? Pump stuff into the air or water? Displace people? Then design a scope of work that focuses on assessing the impacts of such changes, and look for firms that can demonstrate the ability to assess them.

The Prime Directive: Don’t Wait!
The one certain thing about review under NEPA and its kin is that the sooner you get started on it, the faster and more reliably you’re likely to get it done. Conversely, if you wait – if you treat the reviews as something you can check off your list late in the planning process, you’re likely to get into trouble that will delay or even kill your project. So if you’re considering an ARRA-funded project, and you’re not sure that NEPA and the other environmental review laws have already been complied with, then get to work NOW figuring out what kinds of reviews are necessary and getting them underway.

Addendum: Per Active's suggestion below, here's a link to the energy and environment forum, where ARRA and its environmental implications will be further discussed: www.energyenvironmentforum.com