Information-sharing and discussion by the community of practitioners & advocates of NEPA (National Environmental Policy Act of 1969) which requires the decisionmaking by all federal agencies to be more participatory and better informed.
NEPA: to do or not to do?
December 16, 2009 at 5:41 pm #87407
Ok NEPA Nerds, I have a question for you.
I am currently assigned to a project wherein, as a result of several lawsuits, OGC is saying “Thou shalt do NEPA. Thou shalt do an EIS.” However, it is the type of action that is normally done administratively (we are talking about outfitter/guide uses here). But, OGC says, so we shall do.
I convinced everyone that EIS was overkill, so we focused on EA. However, everyone is lamenting over why we can’t just do it administratively. They do not see “what the NEPA decision is.” Long story short, I am currently constructing an argument that we don’t have to do EIS/EA because all the settlement requires is that we do whatever analysis is “pursuant to NEPA.” In this case, all NEPA requires is CE.
So, can OGC really force us to do NEPA that is not required? On what grounds? I have rallied some troops who are willing to say “Thanks, OGC, but we’re ignoring you.” But I thought I might see what some other NEPA folks think. If you were me, what would you do?
December 17, 2009 at 3:49 pm #87415
Categorical Exclusions are established through a rule making process by each agency. For the Forest Service these categories have been institutionalized through 36 CFR 220.6 and the Forest Service Handbook 1909.15 Chapter 30. There are a variety of categories that apply to different types of special uses so I may need further detail on the activity to fully address the issue but in general there are 2 different “findings” that need to occur in order to properly use a categorical exclusion.
First a finding needs to be made that yes indeed there is an appropriate category for your activity and that the scope of your activity is within the scope of the the category. More recent categories that have been established provide much more detail as to the scope of the categories. Categories that were established in the 1980’s – which is when several of the special uses categories were originally listed – are much more vague and open to interpretation. This has lead the agency to establish more specific categories such as the one dealing specifically with ski areas in more recent years. A good decision matrix demonstrating the attributes of the decision in relationship to the parameters of the CE category can help in this regards.
If in fact your activity falls within the bounds of an appropriate category than a finding pertaining to extraordinary circumstances needs to occur. A categorical exclusion can only be used if there are “no extraordinary circumstances”. On your proposed project are there impacts to T&E species, roadless values, etc. that could constitute an extraordinary circumstance. If there are then you may go from a CE to an EIS in order to address significant effects.
Just a point of clarification here – a finding is a legal conclusion based upon the evidence. So what evidence is there that yes this activity falls within the parameters of the category and there are no extraordinary circumstances.
In closing one thing to clear up is not whether NEPA is required – it is for this activity. It is a question of what level of analysis and documentation is required to meet NEPA and to meet the public good.
December 17, 2009 at 5:42 pm #87413
Who is the “decider”?
The Office of General Counsel (OGC) does not have the power to “make” anyone do anything. They only provide “counsel” to the decisionmaker (who ever that is).
Of course, some decisionmakers take the cautionary advice of the OGC and use it for political cover, e.g., “I can’t do X, because the OGC won’t ‘let’ me.” Unless the OGC has real veto-power, then all they can really do is offer advice.
So, if the OGC offers their advice to the “deciderer” (the NEPA Office?) and then the NEPA Officer makes a decision different from what the OGC recommends, then that should be the end of it .. unless the OGC decides to appeal to the NEPA Officer’s boss.
The purpose of any OGC is to keep the Agency out of legal trouble. And the best way to NOT lose court cases is to stay OUT of court. And the best way to stay out of court (i.e., not get sued) on NEPA is to do more than the law requires (i.e., “NEPA overkill”).
So the OGC is always doing to “err” on the side of “NEPA overkill”. So it then falls to the “decider” as to whether to only do what NEPA requires … or do what is politically safe for the “decider”.
December 17, 2009 at 7:27 pm #87411
Good point Steve, about erring on the side of NEPA overkill. That is exactly what’s going on here. And honestly, I was moving us along the EA path (I found a valid way to do so without its being a waste of time for the sake of overkill). The primary problem is, OGC says we should do NEPA, but no one can decide/agree on what that NEPA should be. So no progress can be made.
And yes, David, I am moving away from the discussion of “no NEPA” to “what is the appropriate level of NEPA,” because as you state that is accurate. We will do NEPA; it’s just a question of what level.
I think I have built a pretty good case for using CEs. One would have to prove “extraordinary circumstance” to push it to EA level. And for this project, it would only be social issues — all the other resources have been cleared. So, someone would have to say that the social impacts of the proposed level of o/g use posed extraordinary circumstances, and I think that’s a stretch. There are some areas we’ve identified as critical and possibly over capacity — but we are acknowledging the need for further analysis and are capping the use at existing levels for now. So, we are covered.
I appreciate the feedback. The Line Officer is willing to challenge OGC on this one and maybe even willing to say, “Thanks but I’m doing CEs anyway.” We’ll see…….In any case, I just want us to **** or get off the pot, one way or the other. Everyone is tired of the endless circles (this has been going on for years).
March 4, 2010 at 2:43 am #87409
Hi! I’m new to this group. Geekchick, what was the final result of your situation here? Oh, and I just realized we live in the same area. I am in Fallon.
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