Archive for the ‘CEQ’ Category

Guidance on Mitigated FONSIs and Less-Charmingly-Named Aspects of NEPA Mitigation

The same day that the Ninth Circuit ruled to overturn the Federal Defendant Rule, which had – until then – prevented private parties from intervening in NEPA claims, the White House Council on Environmental Quality (CEQ) was busy issuing guidance on another part of NEPA relating to mitigation.

Photo by geoftheref. Some rights reserved.

Under NEPA, agencies may propose mitigation measures to help minimize the environmental impact of a Federal project. These measures may be part of the project’s fundamental design, or considered as alternatives in the project’s Environmental Impact Statement (EIS). An agency may even make a commitment to mitigation so extensive that the predicted environmental impacts of the project no longer require an EIS. In these cases, the agency is only required to file the less-stringent Environmental Assessment (EA) – a move coined the “mitigated FONSI.” (FONSI stands for Finding of No Significant Impact.)

On January 14th, CEQ released a guidance memorandum titled “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact.” (The Federal Register version came out a week later, becoming effective upon publication.) The memo aims to improve agencies’ accountability for their proposed mitigation measures by addressing specifically:

  • How to ensure that mitigation commitments are implemented;
  • How to monitor the effectiveness of mitigation commitments;
  • How to remedy failed mitigation; and
  • How to involve the public in mitigation planning.

This mitigation guidance memo is the second of three NEPA-related guidance documents issued by the CEQ in honor of NEPA’s 40th anniversary. The first, on categorical exclusions, was finalized more than two months ago. The third, which guides Federal agencies in improving “their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals,” is still in draft form.

For in-depth analysis of the guidance, see the related Van Ness Feldman Alert.

CEQ Coaches Federal Agencies; Helps Them CE Their Way Out Of the Game

Photo by US Mission Canada. Some rights reserved.

Earlier this week, the CEQ published final guidance on categorical exclusions for federal agencies.

The Council on Environmental Quality (CEQ), as we’ve mentioned before (when the EPA threatened the Department of State with a CEQ referral), is both a coach and referee of the federal government’s environmental team. The CEQ “coordinates federal environmental efforts,” advises the president on environmental policy, and acts as the mediator in interagency disagreements. The CEQ, established by the National Environmental Policy Act (NEPA), also oversees agency implementation of the environmental impact assessment process.

Under NEPA, federal agencies must consider the environmental impact of their proposed actions. To meet NEPA requirements, these agencies must prepare a detailed review document called an environmental impact statement.

However, not all federal projects will trigger NEPA’s obligations: a “categorical exclusion” (CE) is a “category of actions which do not individually or cumulatively have a significant effect on the human environment” (40 CFR 1508.4). CEs do not normally require the preparation of either an environmental impact statement or an environmental assessment.

Projects that qualify as CEs are more typically defined by what they aren’t rather than what they are. For instance, Federal Highway Administration regulations define CEs as actions which: “do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts” (23 CFR 771.117, emphasis added).

Can your project be excluded? When all you have is a list of NOs, how exactly do you figure that out? CEQ’s guidance is meant to help you.

The new guidance:

  • provides methods for substantiating categorical exclusions,
  • clarifies the process for establishing categorical exclusions,
  • outlines how agencies should engage the public when establishing and using categorical exclusions,
  • describes how agencies can document the use of categorical exclusions, and
  • recommends periodic agency review of existing categorical exclusions

Read this Nossaman E-Alert to find out why this guidance could mean more litigation against agencies.

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