Environmental Law
Andreen
Fall 2014
I. NEPA- Information forcing statute
a. Creates a new WH office- the Council on Environmental Quality.
i. Comes up with guidelines for following NEPA that are binding on other agencies.
b. Forces the government (CEQ and EPA, also other agencies) to do their homework.
c. EPA must comment on every EIS
d. § 101- Policy
i. To use all practicable means and measures, including financial and technical assistance, to promote general welfare. A lot of crap about mankind’s responsibility to promote good environment.
e. § 102
i. essentially makes agencies and courts insure that “presently unquantified environmental amenities” will be considered in decisionmaking along with economic and technical consideration.
ii. BIGGIE- for every “major Federal action significantly affecting the quality of the human environment,” the head of the agency proposing the action must promulgate a report—an EIS, Environmental Impact Statement that has
a. Environmental impacts
b. Adverse effects which cannot be avoided
i. Reasonable foreseeability- but see the incomplete information part.
c. Alternatives
i. Even those not within the jurisdiction of the lead agency; that’s why you have to go to other agencies with expertise. 1502.14.
ii. Includes impact of not doing anything
iii. Mitigation. 1508.25.
d. Relationship of the short term use and the long term effects
e. Irreversible commitments of resources. What resources will be used and when will it be a sunk cost.
f. Requires the official to consult with and obtain comments from agencies that have special expertise with respect to any environmental impact.
i. Special expertise- 1508.26
g. Copies of this EIS shall be made to other agencies, the CEQ, and the public.
h. Must consider these factors all throughout the process, so if new info comes out, still consider. Strycker’s Bay, Calvert Cliffs.
2. “major Federal action”- 1508.18.
a. directly or indirectly financed by the federal govt.
b. does not include state actions that are made available by general revenue sharing. Atlanta Coalition. Also does not include “recommendations” or nonbinding advice from federal agencies. Kleppe.
c. Includes- formal plans, agency decisions to allocate resources to implement statutory programs, approval of specific projects.
d. Also includes agency inaction. Sierra Club v. Hodel.
i. Helps if you have a mandatory duty (Agency shall…)
ii. But can still get review sometimes. APA § 706. “Courts shall compel agency action unlawfully withheld or unreasonably delayed”
iii. But usually there is a duty (not an option) to control nonfederal action.
3. “significantly”- 1508.27
a. affected region, affected interests, locality. Long and short term. Direct impacts (sure to happen now) and indirect
b. Intensity- severity
c. Character of the locality- keep clean places clean, essentially.
d. Cumulative effects (context)- what impact does this have on further projects? Significance cannot be avoided by terming an action temporary or breaking it down into component parts.
e. Also cumulative harm resulting from its contribution to existing adverse conditions
f. Psychological harm not taken into account, but when social issues are interrelated, EIS has to discuss.
i. So psychological harm not enough to trigger an EIS, but when an EIS is prepared, have to discuss social issues.
4. Tiering- 1508.28
a. Ripeness concern, really. This is for when a general plan or policy requires states to apply for funding for specific projects, EIS required once the state applies for a specific project.
5. Scoping- 1508.25
a. EIS must addres
i. Cumulative
ii. If categorical exclusion, don’t do one.
iii. If not either of these, do an EA and see if you need EIS or get to FONSI it.
b. Exceptions
i. Some agencies have categorical exclusions from the EIS requirement- 1507.3(b)
ii. When the agency has done the “functional equivalent” of an EIS. Tiddy.
c. Some agencies go ahead and do EIS.
d. Some do an EA (Environmental Assessment)- basically a leetle EIS. Then determine FNSI or EIS required.
e. FNSI- Finding of No Significant Impact. 1501.4
i. Subject to public comment.
ii. Agencies can find FNSI on an arbitrary and capricious standard or reasonableness, depending on the jurisdiction. Andreen probably likes reasonableness.
iii. Decision to find FNSI or to do an EIS is subject o A&C review. Andreen says do both hard look (procedural) and A&C (substantive).
f. Decision to do an EIS
i. A&C and hard look – Andreen
8. Judicial review not ripe until FNSI or FEIS.
9. EIS Preparation Procedure- 1502.9
a. Categorical exclusion- No EIS
b. Always do an EIS for [activity] – EIS
c. Not either- prepare an EA to determine EIS or FONSI
