Transcript Slide 1

Summary of NEPA and SEPA
Coastal Engineering and Land Use Issues in North
Carolina
Greenville, NC
January 13, 2009
Sean M. Sullivan
Overview
» Summary of the Acts
» Applicability
» What’s Required
» The Process
» Practical Considerations
Overview
» Summary of the Acts
» Applicability
» What’s Required
» The Process
» Practical Considerations
Summary of the Acts
» National Environmental Policy Act
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›
›
42 U.S.C. § 4321, et seq.
Purpose – Ensure that federal
agencies investigate and consider
the environmental consequences of
their actions.
Environmental Impact Statement
(“EIS”).
Summary of the Acts
(cont’d)
» North Carolina Environmental
Policy Act (“SEPA”).
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N.C.G.S. § 113A-1, et seq.
Purpose – Require state agencies
to consider and report on the
environmental consequences of
their actions.
Summary of the Acts
(cont’d)
» Both statutes are procedural in
nature.
› They force federal and state agencies
to evaluate and consider the effects
of their actions.
› Neither statute requires an agency to
alter its plans based on the results of
the analysis.
Summary of the Acts
(cont’d)
» Implementing Regulations – for
both NEPA and SEPA, individual
agencies have their own procedural
regulations in addition to the
general regulations.
» Compliance with NEPA will satisfy
SEPA as well.
Overview
» Summary of the Acts
» Applicability
» What’s Required
» The Process
» Practical Considerations
Applicability
» NEPA – a federal agency must
prepare an EIS for any:
› “Major federal action significantly
affecting the quality of the human
environment.” (MFASAQHE).
› Can apply to:
› Internal policy decisions
› Rulemakings
› Permitting Decisions
Applicability (cont’d)
» Determining whether NEPA Applies
› Rule – if the effects of an action will not rise
to the level of a MFASAQHE, an EIS is not
required.
› Procedure
› Some actions are designated as requiring an
EIS by regulation; or
› An agency can perform an Environmental
Assessment (“EA”) to determine if an EIS is
necessary; or
› An agency can establish Categorical
Exemptions from NEPA for certain actions.
Applicability (cont’d)
» Three Criteria for SEPA to Apply:
› State Actions;
› That will significantly affect the quality
of the human environment; and
› Involve either:
› Expenditures of public money; or
› Use of State Land
Applicability (cont’d)
» Determining whether SEPA Applies
› Same basic format as for NEPA
› SEPA has Minimum Criteria rather than
Categorical Exemptions.
› Minimum Criteria
› In order for an action to be exempt, it must
satisfy both:
› General minimum criteria; and
› Specific minimum criteria.
Applicability (cont’d)
» When in doubt, do an EA.
› For NEPA and SEPA.
› Goal - Determine whether to prepare
an EIS.
› An EA analyzes the environmental
effects of a project, but the question is
the extent of the effects.
Applicability (cont’d)
» Effects to consider in the EA:
› Direct effects – immediate consequences
of the proposed action.
› Indirect effects – reasonably foreseeable
effects of the proposed action.
› Cumulative effects – effect of the proposed
action when combined with other existing
or planned actions.
Applicability (cont’d)
» Two Choices Based on Result of
EA:
› Finding of No Significant Impact
(“FONSI”).
› No EIS required.
› Proposed action requires an EIS.
Overview
» Summary of the Acts
» Applicability
» What’s Required
» The Process
» Practical Considerations
What’s Required
» The lawyer’s answer – It depends.
» Two basic paradigms:
› If NEPA applies to the proposed
action, follow the NEPA Paradigm.
› If NEPA does not apply to the
proposed action, but SEPA does,
follow the SEPA Paradigm.
What’s Required (cont’d)
» The NEPA Paradigm
› Recall that if both NEPA and SEPA apply to
an action, compliance with NEPA will
satisfy SEPA as well.
› Caveat – If SEPA applies, you must submit
your NEPA documents for distribution through
the NC clearinghouse process.
› Consult the agency’s regulations to
determine how to proceed (EIS, EA, or
Categorical Exemption).
What’s Required (cont’d)
» The SEPA Paradigm
› State agencies typically prepare an
EA before doing an EIS.
› But, they have discretion to proceed
directly to an EIS.
› State agencies document their review
of the EA and/or EIS and their
ultimate decision in a Record of
Decision (“ROD”).
What’s Required (cont’d)
» The Mitigation Concept
› The proponent can mitigate the
effects of a project to the point that an
EIS is not required and a FONSI is
appropriate.
› Mitigation steps must be legally
binding.
› Example – incorporation of
mitigation requirements into a final
What’s Required (cont’d)
» The Mitigation Concept (cont’d)
› Examples of Mitigation
› Refraining from certain actions to
limit the effects of a project.
› Repairing or rehabilitating the
environment.
› Compensating for the effects
through other actions.
What’s Required (cont’d)
» Required Content of the EIS
› Purpose and need for the project;
› Description of the affected
environment;
› Effects of the project (direct, indirect,
cumulative); and
› Alternatives analysis (including no
action).
Overview
» Summary of the Acts
» Applicability
» What’s Required
» The Process
» Practical Considerations
The Process
» NEPA Procedures
› For NEPA, the level of public interest
in a project can affect the process.
› Some public notices are mandatory
and some are discretionary.
› EA/FONSI – Public notice is
discretionary.
The Process (cont’d)
» NEPA Procedures (cont’d)
› For an EIS, public notice and comment on
the draft EIS is mandatory.
› Timing Constraints
› Comment period on draft EIS must be at least
45 days.
› No final decision until at least 90 days have
passed since publication of the notice of
availability regarding the draft EIS.
› Notice of availability for final EIS must be
published at least 30 days prior to agency’s
final decision.
The Process (cont’d)
» NEPA Procedures (cont’d)
› Judicial Review
› Done as part of judicial review of overall
agency action.
› Standard – courts apply deferential
“arbitrary and capricious” standard of
review.
› Caveat – courts must ensure that the
agency took a “hard look” at the
consequences of the proposed
project.
The Process (cont’d)
» NEPA Procedures (cont’d)
› SEPA Clearinghouse Requirements
› If SEPA applies to your project as well as
NEPA, you must distribute the NEPA
documents through the clearinghouse
process.
The Process (cont’d)
» SEPA Procedures
› NC Department of Administration
Clearinghouse Procedures
› EAs, FONSIs, draft EISs and final EISs
must be distributed through this
procedure.
› Affords other state agencies the
opportunity to comment.
› Initiates a public comment period as
well.
The Process (cont’d)
» SEPA Procedures (cont’d)
› Judicial Review
› Compliance with SEPA is reviewed
during review of overall agency action.
› Standard – courts apply deferential
“arbitrary and capricious” standard of
review.
› First step is to file a contested case with
the Office of Administrative Hearings.
Overview
» Summary of the Acts
» Applicability
» What’s Required
» The Process
» Practical Considerations
Practical Considerations
» Scoping – Purpose and Need
› The questions you ask determine the
answers that you get.
» Other Consultation Statutes May Apply
› National Historic Preservation Act
› Can incorporate into NEPA review.
› Endangered Species Act
› May need consultations with US Fish and
Wildlife Service.
› May affect availability of categorical
exemptions.
Practical Considerations (cont’d)
» Dot your “I’s” and cross your “T’s”
› NEPA compliance is a favorite for
environmental groups opposed to a
project.
› Ultimately, the statutes are procedural and
compliance is within your control.
Contact Information
Sean M. Sullivan
Williams Mullen
3200 Beechleaf Court, Suite 500
Raleigh, NC 27604
(919) 981-4312
[email protected]
www.williamsmullen.com