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Cumulative Effects Analysis under NEPA Proposed 2020 Regulations - Barbara Kerrane

August 19, 2020

                 Cumulative Effects Analysis under NEPA Proposed 2020 Regulations

                                          Barbara Kerrane - LLM Student

The National Environmental Policy Act (NEPA) had two primary purposes at the time of its enactment in 1970 characterized as agencies response to and consideration of environmental

impact and, “provid[ing] a springboard for public comment.” (Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)).

NEPA is a procedural statute that is implemented by regulations promulgated by the Council on Environmental Quality (CEQ). The current CEQ regulations are found in 40 C.F.R. Parts 1500-1508. On January 10, 2020, the CEQ published proposed changes in the Federal Register for a sixty-day public comment period. (85 F.R. 1684-01). The proposed regulations purport to streamline the existing regulations and make significant changes to the definitions of direct, indirect, and cumulative effects. Specifically, in the proposed changes to §1508, the CEQ intends to, “simplify the definition of effects by consolidating the definition into a single paragraph and striking the specific references to direct, indirect and cumulative effects.” (85 F.R. 1707-1708). The proposed definition of effects or impacts includes,

[E]ffects of the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives. Effects include reasonably foreseeable effects that occur at the same time and same place and may include reasonably foreseeable effects that are later in time or further removed in distance” (Id. at 1728-29, §1508).

The CEQ further proposes that, “[a]nalysis of cumulative effects is not required.” (Id. at 1729). This is in stark contrast to the current definition that, “[c]umulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from

individually minor but collectively significant actions taking place over a period of time.” (40

  • 1508-7). Analysis of cumulative effects is complimentary to analysis of greenhouse gas (GHG) emissions and resulting climate change with its impending long term and far-reaching effects. (Center for Biological Diversity v. Nat’l H’wy Traffic Safety Admin., 538 F.3d 1172, 1217 (9th 2008)) (“The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.”)

Also, CEQ proposes new mandatory time limitations to procedures under NEPA that include one year for an environmental assessment (EA) and two years for an environmental impact statement (EIS) and page limitations for an EA of 75 and for an EIS 150. (Id. at 1717). This may make it more difficult for agencies to conduct what would be newly optional analysis, such as assessing cumulative impacts, if the proposed regulations are adopted. This may result in some federal agencies no longer conducting the analysis even if they could request an extension from a senior agency official and prefer to include a cumulative impacts analysis to avoid litigation.

Notwithstanding new permissive regulations and limitations, federal agencies should still conduct cumulative impacts analyses. Agencies must consider the legislative history of NEPA

 

and the body of case law on consideration of cumulative impacts. Agencies must also consider “context” or the “potentially affected environment”, under the proposed regulations, when determining the scope of actions for tiering and this necessarily involves looking at the facts that are involved in a cumulative impact analysis. Because some outside agency consultations, such as the Endangered Species Act (ESA), still require cumulative impact analysis at some level, such analyses will still be incorporated into associated NEPA documents.

  1. Legislative History and Caselaw

A plain reading of NEPA itself makes its mandate clear that every recommendation on a proposal must include, “any [emphasis added] adverse environmental effects which cannot be avoided….”, and “to the fullest extent possible…the policies, regulations and public laws of the United States shall be interpreted and administered with the polices set forth in this Act.” (42

U.S.C.A. 4332(1) and (2)(C)(ii)). This read together with the legislative history makes a solid argument that federal agencies should continue cumulative impacts analyses.

Courtney Schultz, an assistant professor of Forest and Natural Resource Policy at Colorado State University, cited NEPA’s legislative history when enacted as, “indicat[ing] that cumulative impacts were always intended to be one of the central aspects of NEPA analysis.” (27

  1. Envt’l L. and Litig. 125, 127 (2012)). In a 1969 House debate, Rep. Robert Leggett (D-CA) stated, “when a Federal project, such as the Peripheral Canal project, irreversibly changes the ecology of a vast region there needs to be in depth study of the total environmental effects of such a program.” He also said, “[t]here is a definite need for a consistent and expert source of review of national policies, environmental problems and trends, both long and short term.” (115 Cong. Rec. 26569, 26584). The Senate report from the Committee on Interior and Insular Affairs described the Senate Bill 1075, NEPA, as “designed to deal with the long-range implications of the crucial environmental problems”…”[t]hey were the spinoff, the fallout, and the unanticipated consequences which resulted from the pursuit of narrower, more immediate goals.” (115 Cong. Rec. 19008, 19010).

The legislative history includes language such as “total”, “problems and trends, both long and short term” and “unanticipated consequences” and is indicative of Congress’ intent that federal agencies consider broad and long-range effects of government actions in NEPA analyses. These type of effects are more consistent with “incremental impacts” in the current definition of cumulative effects than the currently proposed definition of effects.

In Kleppe v. Sierra Club, the Supreme Court held that “…when several proposals for coal related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. Only through comprehensive consideration of pending proposals can the agency

evaluate different courses of action.” (427 U.S. 390, 409-411 (1976)). In Natural Resources Defense Council, Inc. v. Callaway, the Tenth Circuit cited the statutory language and legislative history of NEPA in holding that the Navy had to consider other similar projects in the same geographic area when conducting an EIS. The Court said,

 

NEPA was, in large measure, an attempt by Congress to instill in the environmental decisionmaking process a more comprehensive approach so that long term and cumulative effects of small and unrelated decisions could be recognized, evaluated and either avoided, mitigated, or accepted as the price to be paid for the major federal action under consideration. (524 F.2d 79, 88 (9th Cir.1975).

In the 2020 proposed regulation, the CEQ cited Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), as the impetus to clarify the lack of foreseeability of effects stemming from actions over which the agency has no control. (85 FR 1708). When confronting the lack of a NEPA evaluation of environmental effects of cross-border travel of motor vehicles from Mexico, the Court held that because the Federal Motor Carrier Safety Administration (FMCSA) “lack[ed] discretion to prevent these cross-border operations, we conclude that these statutes impose no such requirement on FMCSA.” (Id. at 756). Specifically, control over vehicle emissions from Mexican trucks were not indirect emissions for purposes of NEPA. Id. at 773.

The Court did cite Kleppe in Public Citizen but only for the proposition that, “[a]n agency’s decision not to prepare an EIS can be set aside only upon a showing that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A)). See also Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).” Id. at 763. In a case concerning migratory birds, Natural Resources Defense Council, Inc., v. Hodel, the D.C. Circuit Court cited Kleppe and explained, “NEPA, as interpreted by the courts, and CEQ regulations both [emphasis added] require agencies to consider the cumulative impacts of proposed actions.” (865 F.2d 288, 297 (D.C. Cir. 1988)). The limitation in Public Citizen is on extending analysis of cumulative effects to actions over which an agency has no discretion. This would seem to still require cumulative impact analysis under Kleppe and Hodel of actions over which agencies had discretion, namely their own actions.

Should a court agree that Congress spoke on the subject through legislative history and required analysis of cumulative impacts, the proposed regulations may fail Chevron step-one analysis. (Chevron, U.S.A. v. NRDC, Inc, 467 U.S. 837, 845 (1984)) (“First, always, is the question whether Congress has directly spoken to the precise question at issue…”). In Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., the Supreme Court stated “[n]ormally, an

agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” (463 U.S. 29, 42 (1983)). This may be a daunting challenge since NEPA is a procedural statute but should a court determine that analysis of cumulative impacts is required by NEPA §102 (2)(C)(ii) as an “important aspect of the problem”, it could potentially invalidate the proposed regulations.

Depending on how the CEQ responds to public comment, the actual process of changing the regulations could be considered arbitrary and capricious under Chevron step-two analysis. In Western Watersheds Project v. Kraayenbrink, the Tenth Circuit stated, “When an agency, such as the BLM, submits proposed regulatory changes for public comment and then offers no meaningful response to serious and considered comments by experts, that agency renders the

 

procedural requirement meaningless and the EIS an exercise in “form over substance”. (632 F.3d 472, 492-493 (9th Cir. 2011). Also see Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 42 (1983), (“[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance”). (467 U.S. 837, 843(1984)) (“If, however, the court determines Congress has not directly addressed the precise question at issue…the question for the court is whether the agency’s answer is based on a permissible construction of the statute”). The issue may hang on whether a court would consider CEQ’s removal of mandatory cumulative effects analysis so contrary to the prior regulation and not based on sound reason. Even if the CEQ were to finalize its proposal that cumulative impact analysis is not required with a reasoned analysis, reviewing courts might still find that failure to perform this analysis makes an agency NEPA document arbitrary and capricious.

  1. Scoping and Tiering

An agency could choose to consider cumulative impacts of an action in an EIS due to the potential future need to tier an EA to an EIS if impacts that would not be required to analyze under the proposed regulations then become required if an agency expanded the action to a new area. In other words, to support tiering, the programmatic document needs to look at the big picture, to include cumulative impacts.

 

Agencies may consider cumulative impacts during the scoping process to determine the context and intensity of actions in anticipation of tiering a future EA from an EIS. The proposed changes move this analysis from 40 C.F.R. 1508.27 to 40 C.F.R. 1501.9 and propose to change the term ‘‘context’’ to ‘‘potentially affected environment’’ and ‘‘intensity’’ to ‘‘degree’’. The proposed regulations still require an agency to consider connected actions unlike unconnected single actions. (85 F.R. 1716-1717). See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir. 1990) (“NEPA requires that where several actions have a cumulative or synergistic environmental effect, this consequence must be considered in an EIS”).

The question of whether an action is connected or unconnected is another way of looking at the effects of an action. Considering actions connected to one another is more akin to considering a cumulative impact than impacts of a single, disconnected action. For instance, if an agency considers construction of one parking lot around a new office building under the Clean Air Act (CAA) for its effect of increased fuel carbon emissions on designation of attainment, the fact that three other parking lots nearby to other office buildings in the area are being planned, could be considered under the CAA as connected for purposes of the analysis. (42 U.S.C.

7407(d)(1)(C)).

CEQ also made proposed changes to the definition of tiering that still “refe[r] to the coverage of general matters in broader environmental impact statements or environmental impact assessments” but shortens the analysis of which appropriate action to tier. (40 C.F.R. 1508.28, 85 FR 1508.1(ff)). In Dine Citizens Against Ruining our Environment v. Bernhardt, the Tenth Circuit rejected government arguments that the Bureau of Land Management (BLM) did not need to assess the cumulative impacts of all of the predicted wells because no operator had

 

actually proposed to drill them all. In response, the Court noted that BLM had concluded in 2014 that it was “reasonably foreseeable” that the wells would be drilled. As a result, BLM had to consider cumulative impacts, even if drilling all the wells was not imminent. Also, the Court held the BLM may tier an EA to an existing EIS and reach a finding of no significant impact (FONSI) if, “the EIS fully analyzed those significant effects”. (923 F.3d 831, 851 (10th Cir.

2019)).

  1. The Endangered Species Act

Even if the proposed regulations are promulgated as is, other regulations that are not pending amendment, such as those implementing the Endangered Species Act (ESA) will still require cumulative impacts analysis. (50 C.F.R. 402.02). If an action required ESA consultation as a part of a NEPA analysis an agency would still conduct an abbreviated cumulative impacts analysis when state or private, non-federal activities are involved if these effects are reasonably certain to occur within the area of consultation. (50 C.F.R. 402.02). In Center for Biological Diversity v. Ross, the plaintiffs argued that, “NMFS’s failure to consider reasonable alternatives to mitigate the longline permit’s environmental impacts, failure to take a hard look at cumulative impacts and failure to prepare an environmental impact statement violated NEPA.” (2019 WL 7020195 at 6, N.D. Cal. Dec. 20, 2019). The court held that “the failure to find the death of a single sea turtle over a two-year period significant to warrant the preparation of an EIS was arbitrary and capricious.” (Id. at 7). An agency could also conduct such analysis when determining the area of critical habitat. Because the agency must include the results of consultation in its NEPA document, it will necessarily be incorporating these cumulative impact considerations. One could argue that if the agency is considering cumulative impacts for biological resources, it should do so for other resources as well.

Conclusion

Although proposed CEQ regulations would no longer require federal agencies to consider cumulative effects analysis and impose limits on time and page number for EAs and EISs, agencies may still conduct these analyses to prevent actions from being enjoined or otherwise delayed by the courts or coincidentally conduct the analyses while scoping and tiering EA and EIS or under another environmental statute such as the ESA. The impact, if any, of the proposed regulations, if promulgated, are to be determined