Session 10

Back to Session 10: The National Environmental Policy Act

Adequacy of EIS

Integrating Value Into NEPA

According to EPA: The National Environmental Policy Act (NEPA) requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet this requirement, federal agencies prepare a detailed statement known as an Environmental Impact Statement (EIS). EPA focuses on three main areas regarding NEPA compliance:

• assuring that EPA's own actions comply with NEPA and other environmental requirements."

Under Section 309 of NEPA, EPA's role in this process is:

"to review and publicly comment on all EISs to determine if there are unacceptable levels of environmental impacts from the proposed project or decision. EPA is also required to review the adequacy of public disclosure in the EIS. EPA also optionally reviews other NEPA analyses such as some Environmental Assessments (EAs). All EISs need to be formally filed with EPA Headquarters so EPA can announce that the EIS is available for public comment on the Web and in the Federal Register. EPA also publishes a summary of Region 8 review and a rating for the EIS. EISs currently under review by the EPA are made available through the EPA Headquarters Office of Federal Activities."

Consequently, one measure of "adequacy" associated with NEPA is the adequacy of public disclosure as such disclosures relate to environmental impact statements.

Adequacy of Public Disclosure

According to the National Park Service, adequacy of public disclosure under NEPA involves the following steps:

A. Notice of Intent (NOI)

CEQ (1508.22) specifies that a notice of intent (NOI) to prepare an EIS must be placed in the Federal Register. The notice must:

(a) describe the proposed action and alternatives, if any, developed to date.
(b) describe the intended scoping process and tell when and where any scoping meetings might be held.
(c) give the name and address of an NPS contact.
(d) state whether the proposed EIS is delegated or non-delegated (see 516 DM, 6.3(b), and ESM 95-2), unless you submit a memo to OEPC giving NPS's position at the same time the NOI is issued.

 

Scoping that has been conducted on an EA which then leads to an EIS does not usually substitute for the official required scoping of the EIS. However, if you stated in the public notice for scoping on the EA that an EIS might be prepared, and the NOI for the EIS indicates that comments on the scope of the alternative and impacts will continue to be considered, scoping for the EA may substitute for additional scoping of the EIS (Q13).

B. Scoping

 

External Scoping

Scoping With Agencies

 

Scoping is an early and open process to determine the scope of environmental issues and alternatives to be addressed in an EIS. You should conduct both internal scoping (see section 2.6) with appropriate NPS staff (including the IDT) and external scoping with the interested and affected public. Scoping is done to:

1.  determine important issues.

2.  eliminate issues that are not important or relevant.

3.  divide up assignments.

4.  identify relationships to other planning efforts or documents.

5. define a time schedule of document preparation and decision-making.

6. “size the analysis box,” which includes defining purpose and need, agency objectives and constraints, and the range of alternatives."

The National Park service also made a distinction between "external scoping" and "scoping with agencies."

1. "External scoping — The public plays an integral role in scoping, and external, or public, scoping is required for any EIS. Scoping is a process, not an event or a single meeting. Parks and other issuing offices are encouraged to use public scoping sessions as well as other means to gather early input on EISs. Examples are direct mailings to park visitors, interested organizations, or park neighbors. These letters should include a project description, a map (if relevant), a description of alternatives and issues to date, a request for any additional issues or alternatives, and the commentor's rationale for suggesting they be analyzed. Newsletters, ads in local or national media, open houses, or literature available for park visitors are also means of gathering early public input.
    

2. Scoping with agencies — Scoping with interested federal, state, and local agencies and Indian tribes should be part of the internal scoping process (see section 2.6 and section 2.13 on cooperating agencies).

   1. Historic preservation officers — You should invite the early participation of the state or tribal historic preservation officer by letter when historic properties are associated with any NPS alternative under consideration in an EA or an EIS.

    

   1. Other agencies — Any interested agency, or any agency with jurisdiction by law or expertise, must be contacted to obtain early input and should be solicited to be cooperating agencies. This could include federal, state, local or tribal agencies or units of government. If the agency has jurisdiction by law, it must be contacted in writing. If not, it can be involved less formally.

    

   1. Indian tribes — Early in the scoping of an EIS, the involved decision-maker and members of the IDT should identify potential American Indian issues and the likelihood of tribal/state agency formal interests in NPS proposed actions. Any affected tribes must be invited to scoping meetings and provided with review copies of documents."

C. Draft EIS Notice of Availability/Filing with EPA (see ECM 95-3)

 

NPS requires that draft EISs be available for public review for a minimum of 60 calendar days from the day the EPA Notice of Availability (NOA) is published in the Federal Register (1506.10). CEQ also requires that you file draft (and final) EISs with EPA (1506.9).

 

After the draft or final EIS is filed, EPA publishes a NOA in the Federal Register to inform the public that a draft or final EIS is ready for public review. In addition, you are required to file an NOA with the Federal Register at the same time you send the appropriate number of copies of the EIS to EPA. The publication of the EPA NOA in the Federal Register (and not the NPS notice) serves as the beginning of the 60-day public review period on the draft (and a 30-day waiting period before the record of decision is signed on the final).

 

The draft or final EIS must have been transmitted to all appropriate agencies, it must be available to the general public, and the NPS NOA must have been filed with the Federal Register before copies of the EIS are filed with the EPA.

 

D. Recipients of Draft EIS

 

You must send a copy of the draft EIS to:

1. all federal agencies that have jurisdiction by law or special expertise, and all appropriate federal, state, or local agencies or Indian tribes.

2. any interested or affected individuals or organizations.

3.  anyone who requests a copy.

It is acceptable to send an electronic copy or make an electronic copy available if the person requesting has access to such a copy. After all printed copies have been distributed, persons requesting the EIS should be directed to the nearest library or government office that has a record copy.

 

E. Timelines for Review of Draft EIS

 

NPS provides a 60-day period for review of its draft EISs, beginning on the date when the EPA publishes its notice of availability in the Federal Register. Park offices are encouraged to take late comments if possible. The review period can be extended at the discretion of the responsible federal official with appropriate notification of the EPA (1506.10). The decision may be based on some or all of the following considerations:

1. Will the extension cause undue delays in projects with life or safety issues?

2. Will granting the extension jeopardize the overall public participation effort?

3. Will granting the extension jeopardize decisions that must be made immediately?

4. Will the extension adversely affect natural, cultural, or even funding resources?

You may also wish to collect comments that arrive a few days after the review period has ended without formally extending the period.

 

F. Public Meeting/Hearing

 

You may provide an opportunity for oral input on a draft EIS. If you choose to do this, the meeting/hearing should take place no sooner than 30 days from the time EPA's notice of availability is published. Under 1506.6, you are required to hold a public input session if:

1. substantial environmental controversy over the proposed action or substantial interest in holding the session exists.

2. another agency with jurisdiction over the action has requested a session and has provided supporting reasons for its request.

The format may be a “workshop,” “meeting,” “hearing,” or other option, but attendees must be allowed to express reasonable substantive concerns with the draft EIS. Speakers may be limited to a certain number of minutes to ensure that all who wish to speak are heard in a reasonable amount of time. Attendees should be reminded that the purpose of the session is to collect input on the adequacy of the EIS and not to express preferences for or against the proposal. NPS may provide an opportunity for attendees to declare their support or opposition in writing at the public input session, or simply encourage participants to write during the remaining comment-and-review period.

 

The meeting should be advertised by a reliable method such as a purchased ad, direct mail, Internet electronic mail, notices posted in local gathering spots, or community or other organizations spreading the word. Press releases are published or aired at the discretion of the media, and are not considered as reliable or effective as an advertisement.

 

G. Final EIS NOA/Filing with EPA

 

When you have adequately responded to all comments received during the 60-day review and are ready to release the final EIS, you must file the final EIS with EPA and send an NOA to the Federal Register. As with the filing requirements for a draft EIS (see 4-8(C)), EPA will publish a separate NOA. Your park must wait at least 30 days from the time EPA publishes the NOA before a record of decision is signed. When a summary of the ROD, or the entire record, is published in the Federal Register, your park may begin to implement the selected alternative or approved plan.

 

H. Recipients of Final EIS

 

You should send a full final EIS to:

(a) any individual or organization that has made a substantive comment.

(b) all agencies or tribes that have commented.

(c) anyone who requests it.

It is acceptable to send an electronic copy or make an electronic copy available if the person requesting has access to such a copy. A summary of the final EIS may be sent to all others, including those who received a full draft EIS but did not comment. After all printed copies have been distributed, those requesting the EIS should be directed to the nearest library or government office that has a record copy."

Timing

Timing of and EIS plays out in two characteristic fashions.

1. Timing of Report Preparation: A significant concern relating to the adequacy of an EIS has to do with the timing of its preparation. For instance, many agencies will first development a much shorter "environmental assessment" either prior to or in lieu of preparing and EIS (which is much more involved). Sometimes these EA's (which are sometimes referred to as "mini-EIS" assessments are simply inadequate to guide agency decision-making.

2. Timing and the Scope of the EIS: Sometimes, as in the case of Kleppe v. Sierra Club [427 U.S. 390 (1976)], national EIS documents are used for decision-making whenever more narrowly defined "regional" EIS models would be more appropriate. However, the opposite can also occur when "regional" EIS reports are used in lieu of national assessments. In these instances, the wrong approach (in terms of scope) is used at an inappropriate "time" in the process. For instance, in Kleppe, the Supreme Court concluded that "A comprehensive EIS is appropriate when there are significantly cumulative or synergistic environmental effects" although it is left to the discretion of the agency to determine when this is the case. Typically this issue is dealt with through the process of "tiering" which involves preparing a succession of EIS assessments from broader to more narrowly defined scale.

Environmental Assessments

Perhaps we should take a moment to say more about Environmental Assessments. In the opinion of the National Preservation Institute:

Why Do an Environmental Assessment (EA)

"An EA is done to determine whether an action is a "major federal action significantly affecting the quality of the human environment." The CEQ regulations don't say much about the content of an EA, but they do contain a substantial definition of what it means to have a "significant" impact, and this can be used to structure the EA analysis. The EA is supposed to be "brief but thorough." It's not supposed to be "encylopedic," nor is it supposed to be a "mini-EIS" (though many are). It can be, and often is, the context in which other authorities, such as Section 106, are addressed.

 

The EA leads either to the decision to do an EIS, or to a Finding of No Significant Impact (FONSI). The FONSI is published for public review and comment. Some courts have found that it is OK for a FONSI to include an agency's committment to mitigation measures that will, if implemented, bring the impacts of the project down below a significant level. Such FONSIs are referred to as "mitigated FONSIs." About 50,000 EAs are done each year.

 

What Should Go Into an EA?

 

The regulations are very unspecific about the required content of an EA, but they do say that the EA must explain the need for the proposed project, the alternatives considered, and the environmental impacts of each alternative. It must also identify agencies and persons consulted in preparing the EA.

In their definitions section, at Section 1508.27, the CEQ regulations define the word "significantly" as used when the Act refers to "major Federal action significantly affecting the quality of the human environment." Since it is such actions that require preparation of an EIS, the definition of "significantly" indicates how the significance of impacts should be measured in an EA. If the effects aren't significant when measured against the definition, then a Finding of No Significant Impact can be issued and the project proceeds with no further NEPA review, but if the definition is met, then an EIS is needed. The definition is framed in terms of "context" and "intensity." Context means the geographic, social, and environmental contexts within which the project may have effects. The regulations refer to:

• Society as a whole, defined as including all human society and the society of the nation
   

• The affected region
   

• Affected interests, such as those of a community, Indian tribe, or other group
   

• The immediate locality

The regulations also say that both short-term and long-term impacts must be considered -- in other words that impacts must also be considered in the context of time.

 

It is important not to think of the various contexts as a hierarchy. An impact on society as a whole is not necessarily more important than an impact on a particular interest or locality. "Intensity" is the severity of the potential impact, considered in context. The regulations direct agencies to consider:

• Both beneficial and adverse impacts
   

• Impacts on human health and safety
   

• Impacts on an area's unique characteristics, such as historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, and ecologically critical areas.

Note that impacts on "historic or cultural resources" are explicitly identified as attributes that must be addressed in order to measure the significance of a project's potential environmental effect. Hence such impacts must be considered in an EA. Note also that it's "historic or cultural resources." The two terms are not synonymous.

 

The regulations go on to identify the potential for controversy, the presence of uncertainty or unknown risks, cumulative effects, adverse effects on historic properties, scientific, cultural or historical resources, endangered and threatened species, and potential violations of law or other requirement designed to protect the environment as factors to consider in measuring the intensity of potential impacts.

• Controversy is generally understood to mean controversy about the environmental effects of a project -- not mere unpopularity.

• Cumulative effects refer to the role of a project's effects in contributing to a pattern of effects of multiple projects, programs, or trends.

Ideally, the definition of "significantly" at 40 CFR 1508.27 should provide an outline for an EA. Going through the outline -- asking oneself "are we likely to affect this measure of intensity?" with respect to each measure, in each context -- should bring the analyst to a logical conclusion about whether there will be a significant effect. Unfortunately, many agencies don't use the definition this way.

 

How are EAs Reviewed?

 

The regulations are unspecific about internal and external review of an EA, so the amount and kind of review that takes place varies widely. Practically speaking, some kind of review is obviously necessary in many cases, because whoever is preparing the EA obviously can't know what all the possible impacts are; she will have to ask people. This does not necessarily mean a formal review and comment process. Review may occur in the context of EA preparation, as part of consultation with knowledgeable or concerned parties, and with reference to other environmental laws like Section 106.

 

EAs and Cultural Resources

 

As noted, the definition at 40 CFR1508.27 mentions historic and cultural resources twice, in different ways. Clearly, impacts on both historic properties and other kinds of cultural resources are supposed to be considered in an EA. The EA is also an excellent, and commonly used, context for coordination with Section 106 of NHPA.

40 CFR 1508.14

 

40 CFR 1508.14 -- the regulatory definition of the "human environment" -- is an often misinterpreted section of the CEQ regulations. After defining the human environment to include the natural and physical environment and human relationships with that environment, it says that economic and social effects by themselves do not require preparation of an EIS. It goes on to say that when an EIS is prepared and economic or social effects are interrelated with effects on the natural or physical environments, then such effects must be considered.

 

Agencies have occasionally interpreted this to mean that they do not need to consider economic and social effects in an EA. This is a pretty exotic reading of the regulatory language. Section 1508.14 does NOT say that economic or social effects do not need to be considered in EAs. The point of 40 CFR 1508.14 is just that if there are no other potential impacts, economic and social impacts are not by themselves sufficient to constitute a "significant effect on the human environment" requiring preparation of an EIS. Nor, of course, does 40 CFR 1508.14 mean that potential impacts on human culture and its resources are not sufficient by themselves to require preparation of an EIS, since it doesn't even mention such impacts.

 

The Outcome of an EA

 

The EA results either in the conclusion that an EIS is necessary, or in a written "Finding of No Significant Impact" or FONSI. The FONSI, in theory, demonstrates that the impacts of the project don't rise to the level of significance, with reference to the significance measures listed at 40 CFR 1508.27. The FONSI:

• Includes either the whole EA or a summary (usually the latter)
   

• References any other pertinent environmental documents (e.g., an MOA)
   

• Says why it's concluded that there's no significant impact
   

• If some factors are weighted more heavily than others, says so
   

• In most jurisdictions, may include or refer to mitigation measures that the agency plans to implement in order to keep impacts below the level of significance (Such a FONSI is called a "mitigated FONSI")
   

• Must be available to the public, but may or may not be put out for formal public review.

Common Problems with EAs

 

Since the CEQ regulations are vague about what should be in an EA, many if not most agencies and consultants simply adapt the much more detailed procedures for doing Environmental Impact Statements (EISs). This tends to result in long, complicated, costly documents that are, in essence, EISs with little or no public participation, and that aren't particularly clear about why the agency thinks that impacts won't be significant.

 

EAs and EISs serve fundamentally different purposes. An EA is to determine whether a specific threshold is crossed -- the threshold of "significant" impact. An EIS simply has to reveal the impacts, not demonstrate that a threshold is or is not crossed. So when one turns an EA into a "mini-EIS", one produces a document that often doesn't clearly show that there will or will not be a significant impact. Instead one merely discusses all the impacts (at best), and then asserts a conclusion whose relationship to the analysis is not always very clear. In addition, of course, a "mini-EIS" may not be very "mini." It may be as long and complicated as a regular EIS; it's just usually prepared with little [formal] public participation.

 

Another problem is lack of "scoping" -- that is, figuring out the scope of the analysis. Because the regulations talk of scoping only in the context of EISs, formal scoping is not always done with respect to an EA; instead the analysis done more or less by rote.

 

With respect to historic properties, a very common problem is "deferral," in which the agency acknowledges that it doesn't know much about what effects there may be on historic properties, but whatever they are, Section 106 review, to be performed later, will take care of them, and therefore there's no significant impact.

 

And with respect to other kinds of cultural resources, a common problem is that they aren't considered at all. Historic properties (or even more narrowly, archeological sites) are sometimes the only things discussed in the "cultural resource" part of an EA, and if social impacts are considered, they are often considered only terms of easily quantifiable socioeconomic variables like population, employment, and use of public services. The result is that impacts on many classes of cultural resource simply are not identified, or considered in deciding whether significant impacts may occur."

Substituting EAs for EISs

When  EAs are used and serve as guides for action and at a later date an EIS is conducted, then the EIS comes after the agency has made a decision or taken an environmentally - related action. Consequently, the timing of the EIS is not good.

Once again, APHIS provides insight into how these two report instruments should differ from one another:

"The environmental assessment is a concise public document which has three defined functions. (1) It briefly provides sufficient evidence and analysis for determining whether to prepare an EIS; (2) it aids an agency's compliance with NEPA when no EIS is necessary, i.e., it helps to identify better alternatives and mitigation measures; and (3) it facilitates preparation of an EIS when one is necessary. Section 1508.9(a).

 

Since the EA is a concise document, it should not contain long descriptions or detailed data which the agency may have gathered. Rather, it should contain a brief discussion of the need for the proposal, alternatives to the proposal, the environmental impacts of the proposed action and alternatives, and a list of agencies and persons consulted. Section 1508.9(b).

 

While the regulations do not contain page limits for EA's, the Council has generally advised agencies to keep the length of EAs to not more than approximately 10-15 pages. Some agencies expressly provide page guidelines (e.g., 10-15 pages in the case of the Army Corps). To avoid undue length, the EA may incorporate by reference background data to support its concise discussion of the proposal and relevant issues.

 

Agencies should avoid preparing lengthy EAs except in unusual cases, where a proposal is so complex that a concise document cannot meet the goals of Section 1508.9 and where it is extremely difficult to determine whether the proposal could have significant environmental effects. In most cases, however, a lengthy EA indicates that an EIS is needed."

By comparison, an environmental impact statement,  is a "detailed statement… on the environmental impact of the proposed action…” Consequently, EAs are designed to determine whether an EIS is necessary and are not to be substituted for and EIS. Moreover, EISs are, by comparison, much lengthier and more involved than the typical EA.

EIS Adequacy Rubric

The EPA uses the following rubric to rate the adequacy of an EIS:

1. "(Adequate) The draft EIS adequately sets forth the environmental impact(s) of the preferred alternative and those of the alternatives reasonably available to the project or action. No further analysis or data collection is necessary, but the reviewer may suggest the addition of clarifying language or information.

    

2. (Insufficient Information) The draft EIS does not contain sufficient information to fully assess environmental impacts that should be avoided in order to fully protect the environment, or the reviewer has identified new reasonably available alternatives that are within the spectrum of alternatives analyzed in the draft EIS, which could reduce the environmental impacts of the proposal. The identified additional information, data, analyses, or discussion should be included in the final EIS.

    

3. (Inadequate) The draft EIS does not adequately assess the potentially significant environmental impacts of the proposal, or the reviewer has identified new, reasonably available, alternatives, that are outside of the spectrum of alternatives analyzed in the draft EIS, which should be analyzed in order to reduce the potentially significant environmental impacts. The identified additional information, data, analyses, or discussions are of such a magnitude that they should have full public review at a draft stage. This rating indicates EPA's belief that the draft EIS does not meet the purposes of NEPA and/or the Section 309 review, and thus should be formally revised and made available for public comment in a supplemental or revised draft EIS."