Transcript COURSE METHODOLOGY - UC Davis School of Law

The Evolution of NEPA and
the “Little NEPAs”
Daniel P. Selmi
Loyola Law School
Los Angeles
The Mysterious Number of “Little
NEPAs”
NEPA’s Progeny in 15 states:
California, Connecticut, Georgia, Hawaii, Indiana, Maryland,
Massachusetts, Minnesota, Montana, New York, North Carolina,
South Dakota, Virginia, Washington, Wisconsin
Plus the District of Columbia and Puerto Rico
Others: “one half the states having some sort of NEPA
requirement, eight of them…about as pervasive as the federal
government.”
The Jurisdictional Scope of the Little
NEPAs: I
NEPA: “major federal actions” / “proposals for
legislation
Hawaii: Land categories (state or county lands,
conservation lands, shoreline areas).
Indiana: State licenses or permits: “issuance of a
license or permit by any agency of the state.”
Connecticut: State-funded actions: “proposed to be
undertaken by state departments, institutions or
agencies, or funded in whole or in part by the
state.”
The Jurisdictional Scope of the Little
NEPAs: II
Wisconsin: Actions of state agencies, not to local
governments or private parties unless their actions
involve state agency regulation or funding.
Robinson v. Kunach, 251 N.W.2d 449, 452 (Wis.
1977)
Maryland: “all state agencies”
Virginia: “all state agencies, boards, authorities, and
commissions…”
The Jurisdictional Scope of the Little
NEPAs: III
New York and California: includes local land use
decisions.
The NY SEQRA “has made the most fundamental
change in the way land development proposals are
handled by local governments since the enactment
of the zoning and planning legislation over half a
century ago.” Quoted in Rathkopf, The Law of
Planning and Zoning § 9:31
Jurisdictional Scope: Delegation and
Flexibility I
Delegating the Decision over the Regulatory Scope:
Massachusetts: Secretary of Environmental Affairs “to
establish general and specific categories of projects and
permits which shall or shall not require environmental
impact reports.”
Indiana: air pollution, water pollution and solid waste
boards “shall by rule define which actions constitute a
major state action significantly affecting the quality of the
human environment.”
Jurisdictional Scope: Delegation and
Flexibility II
More Massachusetts: Secretary of Environmental
Affairs “shall determine the form, content, level of
detail and alternatives required for the
[environmental impact] report.”
The Implementation Synergy Between
NEPA on the Little NEPAs
The CEQ Regulations: Based largely on Cal. experience
Now 30 plus years in operation
Substantial deference by courts. Department of Transportation
v. Public Citizen, 541 US 754 (2004)
“Many states, in turn, emulated the CEQ NEPA Rules in their
next rulemaking iteration.”
Scoping: Massachusetts innovation to CEQ
CEQ: Draft Guidance on NEPA Mitigation and Monitoring.
Wisconsin: Environmental analysis shall substantially follow the
regulations issued by the Council on Environmental Quality for
EISs….
Threshold Tests: The “will”/ “may”
Dichotomy
“Under a number of the little NEPAs, it has been held
that that threshold for requirement of an EIS is lower
than the federal threshold.” Sive and Chertok,
“Little NEPAs and their Environmental Impact
Assessment Procedures.”
NEPA: “will cause an adverse environmental impact”
Connecticut: “primary recommendation or initiation of
actions which may significantly affect the
environment.”
Threshold Tests: Fair Arguments /
Review Thresholds
California: The “fair argument” standard
Friends of “B” Street v. City of Hayward, 106 Cal.
App. 3d 988, 1002 (1980)
Case by case determinations
Massachusetts: Review Thresholds
“identify categories of projects or aspects thereof
of a nature, size or location that are likely, directly
or indirectly, to cause damage to the environment.”
Flexible Thresholds: Agency
Discretion to Establish
Washington:
Cities and counties may raise the exemption limit for
minor new construction to better accommodate the
needs in their jurisdiction.
Example: Exempt residential developments at any
level between 4 and 20 dwelling units; (2)
commercial buildings between 4,000 and 12,000
square feet. Exceptions apply, including if a rezone
is required.
Thresholds: Categorizing in New
York
Type I: actions that experience has shown are more likely to
have significant adverse environmental impacts
Type II: actions that have been determined not to have a
significant adverse environment effect.
Unlisted: all actions not Type I or Type II.
“short” (2-page) and full Environmental Assessment Forms.
No “conditional negative declarations” for Type I actions
Thresholds: Categorizing in
Wisconsin
Action Type List (Wisc. Admin. Code 150.20)
Type I: Require full EIS
Type II: Preparation of EA. Full EIS if proposed action
may significantly affect quality of human
environment. and decision procedures of the EIS
process.
Type III: No EA or EIS unless
Type IV: Generally do not require an environmental
assessment or EIS
Thresholds: More Categorizing in
New York
Type I actions: Examples (617.4(b)(5) and (6)):
“construction of new residential units that meet or exceed the
following thresholds:
1. 50 units not connected to public water and sewage
systems
2. In a city with population greater than 150,000 but
less than 1 million: 1,000 units to be connected to public
water and sewage systems
3. In a city of 150,000 persons or less: facility with
more than 100,000 square feet of gross floor area.
Threshold Tests: Judicial Review I
Wisconsin: “reasonableness” standard in review of determination
not to prepare an EIS. Wisc. Envtl. Decade v. Pub. Service
Comm’n, 256 N.W.2d 149 (1977).
Minnesota: “A determination of whether significant environmental
effects result from this project is primarily factual and
necessarily requires application of the agency’s technical
knowledge and expertise…Accordingly, it is appropriate to
defer to the agency’s interpretation of whether the standard is
met.” Minn. Ctr. For Envtl. Advocacy v. Minn. Pollution Control
Agency, 644 N.W.2d 458 (2002).
Threshold Tests: Judicial Review II
New York: “the lead agency must take a hard look at
all relevant impacts of the whole action…”
For negative declaration to be upheld: record must
show that agency identified the relevant areas of
environmental concern, thoroughly analyzed them
for significant adverse impact, and supported its
determination with reasoned elaboration.
Threshold Tests: Judicial Review III
Washington:
By statute: In any action involving an attack on a
determination by a governmental agency relative
to the requirement or the absence of the
requirement, or the adequacy of a "detailed
statement", the decision of the governmental
agency shall be accorded substantial weight.
Categorizing: Critical Environmental
Areas
New York: State or local governments can designate
“critical environmental areas”
1. Exceptional or unique setting
2. Exceptional or unique social, historic,
archaeological, recreational or educational values
3. Inherent sensitivity to change
“Raises a red flag” / Affects determination of
significance.
NEPA: Mini-Impact Statements
The NEPA Experience: Environmental Assessments
Originally intended as brief “mini-impact” statement
Now: EAs are often hundreds of pages long.
Numbers: Each year 450 or so EISs; 40,000 EAs (followed by
mitigated FONSI). The mitigated FONSI “is to the
environmental review system what the plea bargain is to the
criminal justice system.” Gerrard, The Effect of NEPA Outside
the Courtroom, 39 ELR News and Analysis 10615.
Compare: Minnesota Environmental Policy Act: less than 10 EISs
per year; initial studies (EAWs) 150.
Who Prepares the EIS
New York: Project sponsor is responsible for “preparing a
draft EIS.
It can request the lead agency to do so, but the lead
agency may refuse.
“Project sponsors are responsible for the accuracy of the
information they provide for EAFs and EISs.” SEQRA
Handbook, p. 68.
Formal process for “rejecting” submitted draft EIS.
NEPA: EIS cannot be prepared by a project sponsor.
Public Participation: NEPA
NEPA: No overt statutory role for the public. “Copies
of such statement and the comments and views of
the appropriate Federal, State and local
agencies….shall be made available…to the
public.” 42 U.S.C. § 4332.
CEQ Regulations: agency shall “request comments
from the public” on draft EIS, “affirmatively
soliciting comments from those persons or
organizations who may be interested or affected.”
Public Participation: Hearings I
Few little NEPAs require public hearings:
Connecticut: Conn. Agencies Regs. §22a-1d: sponsoring
agency “shall hold a public hearing on the [EIS] if 25
persons or an association having not less than 25 persons
requests such a hearing…”
North Carolina: N.C. Admin. Code tit. 1 §25.0604: State
Project Agency “may hold a public hearing to complement
the EIS process where significant public interest is
expressed in the proposed activity….”
Public Participation: Hearings II
Wisconsin: When preparation of an EIS is required,
EIS procedures require agencies to hold a “public
informational hearing.”
Minnesota: Agency must prepare formal
environmental assessment worksheet if (1) 25 or
more people sign a petition and (2) material
evidence suggests that the action may have a
significant environmental effect.
Public Participation: Scoping and
Commenting
The Commenting Function:
Hawaii: “Receive and respond to public comments…for draft
environmental assessments….”
Early consultation (scoping): “Many public agencies have found
that early consultation solves many potential problems that
would arise in more serious forms later in the review process.”
14 Cal. Code Regs. § 15083.
The commenting function is widespread in the little NEPAs.
Public participation is heralded.
Public Participation:
Rationales I
Rationales for the heavy emphasis on public participation:
1. The Acceptance Rationale
2. The Civic Discourse Rationale
“foster membership in the political community and enhance
the ideals of democracy as a whole…” Tai, Three
Asymmetries, 78 Temple L. Rev. 659, 678 (2005)
3. The Expertise Rationale:
Take comments so as to “‘draw on the reservoir of public
information and expertise which SEQRA intends to tap.’”
Williamsburg Around the Bridge Block Ass’n v. Giuliani, 223
A.D.2d 64, 73 (N.Y. App. Div. 1996)
Public Participation:
Rationales II
4. The Anti-Bias Rationale: ensuring that the SEQRA
process is not a “two-handed card game between
the local government and the sponsor of the
project.” Salkin, SEQRA’s Silver Anniversary, 65
Albany L. Rev. 577, 585 (2001)
5. The Confrontation Rationale: Forcing public
agencies to confront the environmental
consequences of their actions. New York: at least a
10 day period before actual decision.
Public Participation: Adverse
Effects?
Adverse Results from Public Participation?
1. Hawaii: “postcard” deluges of voluminous and repetitive
public comments “many of whom have never read the draft
[EIS].” Lisa A. Bail, The Voluminous and Repetitious Comments
Issue under the Hawaii Envt’l Policy Act.
2. Ross, Participation Run Amok: The Costs of Mass Participation
for Deliberative Agency Decisionmaking, 92 Nw U. L. Rev.
173, 225 (1997) (suggesting adverse results from mass
participation in NEPA).
Decisional Overlaps
1.Decisional Sequences
Earliest possible time
2.Avoiding Duplication
Tiering,
Program EIRs/ EISs
“Generic EISs” (NY)
.
Mismatches
“SEQRA is still the most useful mechanism available that comes
close to accomplishing what comprehensive and regional
planning are supposed to accomplish.” Ientilucci, SEQRA: Down
the Garden Path, 6 Alb. L. Envtl. Outlook J. 102 (2002).
But: Mismatches between decisions and environmental effects
1. Cumulative effects.
2. State-local fragmentation of authority.
Compare: NEPA
Long Beach Pine Barrens Soc’y v. Planning Bd., 606 N.E.2d
1373 (1992).
Duplication
The NEPA-SEPA Overlap: Solutions
1. Encouraging joint documents: “State and federal
agencies shall “cooperate…to the fullest extent
possible to reduce duplication….” Haw. Code Rev.
§11-200-25; see also 14 C.F.R. §1506.2(b).
2. “Can a NEPA EIS be used, without modification
or change, as a SEQR EIS? In theory, yes, but rarely
in practice.” SEQRA Handbook, p. 190.
Offsite Alternatives: Various
Approaches I
District of Columbia: “Alternatives to the proposed
action, including alternative locations.”
“Whether an EIS must include consideration of offsite
alternatives depends on whether the project is
public or private.” Org. to Pres. Agric Lands v.
Adams County, 913 P.2d 793, 798 (Wash. App.
1996).
Offsite Alternatives: Various
Approaches II
SEQRA Handbook: offsite alternative appropriate
where (1) agency is carrying out the project; (2)
private applicant has evaluated alternative sites;
(3) applicant owns or has options on such sites; and
(4) applicant does not yet own the proposed site.
SEQRA Handbook, 63-64.
Outcome: Most alternatives are on-site and,
consequently, focus on project size.
Alternatives and Mitigation
The Little NEPA Norm: Alternatives and mitigation measures
Washington: EIS must discuss reasonable alternatives, including
the proposed action with any mitigation measures.
Minnesota: “feasible” alternatives or mitigation measures
New York: alternatives “that are feasible, considering the
objectives and capabilities of the project sponsor.”
NEPA: both EISs and Environmental Assessments must discuss
alternatives
Length of the EIS
NEPA Guidelines: 150 pages or less
EPA: 37% of EISs stay within that guideline
North Carolina: 60 page maximum
N.C. Admin. Code tit. 1 § 25.0603
Washington: 75-150 pages
Wash. Admin. Code § 197-11-425(4)
New York: No set length. “Accepted EIS’s have
ranged from as little as ten pages to multiple
volumes.” SEQRA Handbook, p. 100.
Substantive Effect I
NEPA is “essentially procedural.”
NEPA “does not impose substantive duties…but simply
prescribes the necessary process for preventing
uninformed—rather than unwise—agency action.”
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 333 (1989).
But what are mitigated FONSIs if not substantive?
Substantive Effect II
New York: Choose alternatives which, consistent with
social, economic, and other essential considerations,
minimize or avoid environmental effects “to the
maximum extent practicable”
District of Columbia: Disapprove action if the public
health, safety or welfare is “imminently and
substantially endangered
Substantive Effect III
Washington: “While NEPA and SEPA are substantially similar in
intent and effect…the public policy behind SEPA is
considerably stronger than behind NEPA.” ASARCO, Inc. v. Air
Quality Coal., 601 P.2d 501 (Wash. 1979).
Rev. Code Wash. 43.21C.020(2)(b): “fundamental and
inalienable right to a healthful environment.”
Deleted from NEPA prior to passage.
But: Courts are unclear as to whether the SEPA supplied
substantive authority or a substantive mandate
Substantive Effect: Mitigation
Washington: Plan or Rule-Based Mitigation
Agencies may mitigate environmental impacts, but mitigation shall
be based on policies, plans, rules or regulations formally
designated by the agency…and in effect when the DNS or
DEIS is issued…
Substantive Effect: Litigation
The Little NEPAs Overall:
“On a nationwide basis, there are few if any cases holding,
based on the little NEPAs…that a decision was improper
because the environmental impact was excessive.” Gerrard,
Litigation Under the “Little NEPA Laws.”
.
Substantive Effects: Types
“Washington courts have recognized three potential kinds of
direct substantive effect: (1) the interpretation and
administration of other state laws in accordance with
SEPA’s policies; (2) the supplementation of agency
authority so that agency action may be based on
otherwise unauthorized environmental grounds; and (3)
judicially enforceable substantive limitations on
government action.” Settle, The Washington Environmental
Policy Act: A Legal and Policy Analysis (2010) §18.01
Substantive Effect: Transforming
Ministerial Acts
Washington: “even if the action had previously been
ministerial, it became environmentally discretionary
with the enactment of SEPA.”
Settle, The Washington Environmental Policy Act
§18.01[2]; see Polygon Corp. v. City of Seattle,
578 P.2d 1309 (1978)
Substantive Effect: Conditions
Beyond Agency Jurisdiction
“The agency may even impose conditions that are
beyond the agency’s jurisdiction, unless those
conditions would intrude upon another agency’s
jurisdiction.”
SEQRA Handbook, 152; see Town of Henrietta v.
Dept. of Envt’l Conservation, 76 A.D.2d 215 (App.
1980).
Litigation: Appellate Decisions as of
2005
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New York 863
California 808
Washington 316
New Jersey 64
Massachusetts 50
Connecticut 42
Minnesota 40
Wisconsin 38
Hawaii 29
North Carolina 19
Litigation: More amounts
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Montana 15
Delaware 10
Mississippi 7
South Dakota 6
Maryland 5
District of Columbia 5
Georgia 3
Michigan 3
Puerto Rico 2
Illinois and Indiana 2
Virginia 1
Litigation: the Influence of the
Courts
The Supreme Court and NEPA: a unanimous run from
Vermont Yankee.
The States: A different picture
Virginia Environmental Policy Act: No review of
substantive content of EIS. Murray v. Green, 396
S.E.2d 653 (1990)
Litigation: Outcomes
1990-2006: plaintiffs won approximately 16% of the
SEQRA cases where an EIS had been prepared.
Michael B. Gerrard, Survey of SEQRA Cases,
N.Y.L.J. vol. 239 No. 60 (Mar. 28, 2008).
Relationship Between the Scope of the
Little NEPA and Litigation
“The four states with the highest per capita number of
decisions are all among the little NEPAs of broadest
applicability.” Michael B. Gerrard, Litigation under
the “Little NEPA” Laws (2005).
The States as “Laboratories”:
Conclusions I
1.
Development of environmental law in a less overtly
federalized framework
2.
The Complexity Problem: implementing an overlay
system
3.
Thresholds: the tradeoff between predictability
versus comprehensiveness.
4.
The extension into local land use decisions
The States as “Laboratories”:
Conclusions II
5.
The Importance of Public Participation
6.
The Problem of Sequential Decisions
7.
Projections of ecosystem change: Ex ante
predictions
of future? Consequence: the
importance of monitoring
8. The premise of single decisionmaking events
adaptive management (ongoing, revisiting,
versus
readjusting)
The States as “Laboratories”:
Conclusions III
9.
Ambivalence about alternatives: Otherwise:
“what you have left is the documentation of
effects of a decision already made.”
10.
Integrating environmental review into the
heart of project planning (as opposed to
integrating it with agency processes).
11.
The EIS process and bargaining
the
The States as “Laboratories”:
Conclusions IV
12.
Environmental Knowledge: 1970 and 2011.
13.
Process, not knowledge, has proved more
14.
CEQA at 40: The Securities Law Syndrome?
significant.