NEPA Adaptation and Controversey: A Brief History of NEPA and How it - - PowerPoint PPT Presentation

NEPA Adaptation and Controversey:

A Brief History of NEPA and How it Has Changed

American Planning Association • 2017 National Planning Conference Sunday, May 7, 2017 • 4:00 – 5:15pm Session #9109684

His istoric ical l Fou

• undations of
• f the EI

EIS

Events + Theories + Organizations + Regulations = Change

Ev Events

• 1952 London Smog
• 1960 Jacques Cousteau and

Prince Rainier III of Monaco publicly oppose French plan to dump radioactive wastes into the Mediterranean

• 1966-74 -- French begin

nuclear testing at Moruroa in the South Pacific, French Polynesia

• 1969 Cuyahoga river bursts

into flames 5 stories high from oil and chemical pollution

• 1969 Santa Barbara Oil well

explodes off the coast of California spills 235,000 gallons of oil and covers 30 miles of beach with tar

• 1960 -- US Congress funds

two-year Public Health Service study on air pollution from cars.

• 1962 -- Silent Spring written

by Rachel Carson first appears in the New Yorker then as a best seller

• 1968 -- Paul Erlich publishes

The Population Bomb

• 1968 -- Garrett Hardin

publishes his article Tragedy

• f the Commons in Science

Th Theor

• ries

• 1961 -- World Wildlife Fund
• 1964 – Hazel Henderson Citizens for

Clean Air in New York

• 1966 -- Barry Commoner establishes

Center for the Biology of Natural Systems

• 1967 --Environmental Defense
• 1970 -- Natural Resources Defense

Council

• Previously existing organizations

Sierra Club and National Wildlife Federation, Defenders of Wildlife

Organization

• ns

• 1963 -- Nuclear Test Ban Treaty between U.S. and

U.S.S.R. (Russia) stops above ground tests of nuclear weapons.

• 1964 --Sept. 3-- National Wilderness Preservation

System is created

• Administrative Procedures Act of 1946 procedural

guarantees for public notice and group comment during rule making

• 1966 -- Freedom of Information Act

Regu gulation

• ns

The National Environmental Policy Act (NEPA) [42 U.S.C. 4321 et seq.] was passed in 1969 and signed into law on January 1, 1970.

“The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high- density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private

• rganizations, to use all practicable means and measures, including

financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

Con

• ngressional I

Intent

How Has t the NEP EPA Proce

• cess C

Changed?

• Procedural Changes
• Lawsuits
• Changes in Applicable Laws
• Changes to the Adversarial Nature of NEPA

Proce

• cedural C

Change

200 400 600 800 1000 1200 1400

Number of EISs Submitted 1979-2014

All EISs Submitted Final EISs Submitted

Proce

• cedural C

Change

Why?

• Development of the environmental assessment process

as a way to provide answers as to whether there is a likely significant impact before doing the entire

• Development of categorical exclusions, which lists

projects that have historically not had impacts so that studies aren’t needed of those projects

Movi ving g Su Suits i into R

• Revi

views

Example NEPA and DOT 4(f)

• DOT Act of 1966 required government to demonstrate that

there are no “feasible and prudent alternatives to building through public lands.”

• 1968 DOT is building I40 in Memphis. They decide to go

through Overton Park. No findings are made as to why.

• Supreme Court rules in Overton Park v. Volpe that findings

must be made and orders the project stopped. http://www.pbs.org/program/ten-that-changed-america/10- parks-changed-america/

Minute 31:40

Moving La Laws s into R Reviews

California CEQA and GHG

• The California Global Warming Solutions Act of 2006, required a sharp

reduction of greenhouse gas (GHG) emissions.

• Senate Bill 97 (Chapter 185, 2007) required the Governor's Office of

Planning and Research (OPR) to develop recommended amendments to the State CEQA Guidelines for addressing greenhouse gas emissions. OPR was required to prepare, develop, and transmit the recommended amendments to the Natural Resources Agency on or before July 1, 2009.

• The Natural Resources Agency transmitted the adopted amendments

and the entire rulemaking file to the Office of Administrative Law (OAL)

• n December 31, 2009. On February 16, 2010, the Office of

Administrative Law approved the Amendments, and filed them with the Secretary of State for inclusion in the California Code of Regulations. The Amendments became effective on March 18, 2010.

Yet still peop

• ple c

com

• mplain a

abou

• ut length

(time/mon

• ney) for
• r a

an EI EIS

• Too many projects have to be studied
• Project have to study topics that are not relevant to the

project

Years to Complete EIS By Variable With Without 4(f) Review 4.7 2.8 404 Permit 4.3 2.4 Above Median Below Median Meetings 4.5 2.4 Public Hearings 4.2 2.7

La Lawsu suits

http://www.epa.gov/compliance/nepa/eisdata.html? http://ceq.hss.doe.gov/legal_corner/litigation.html

492 534 594 597 553 553 558 554 504 137 150 130 150 118 108 86 132 97 100 200 300 400 500 600 700 2001 2002 2003 2004 2005 2006 2007 2008 2009 Total NEPA EIS Filed Total Cases Filed

Who S

• Sues?

Public Interest, 52.1% Individual Citizens, 17.3% Multiple, 10.8% Business Groups, 6.5% Local Govt, 4.8% Indian Tribes, 3.1% State, 2.7% Property Owners, 2.4% Other, 0.2%

Percent Suits by Plaintiff Type

U.S. Su Supreme Cou

• urt a

and St Standing

• Standing (Injury, Causation, Redressability)
• U.S. v. SCRAP granted broad interpretation of who in fact is
• injured. (1971)
• The injured party must be particular people not organizations

(Sierra Club v. Morton 1972)

• Court rejected view that citizen suit provision of the statute

conferred upon all persons an abstract, self-contained, non- instrumental ‘right’

• Rather, an American citizen plaintiff must have suffered a

tangible and particular harm. (Lujan v. National Wildlife Federation 1992)

• Ecuador – Rights of Nature

http://www.nytimes.com/2008/12/14/magazine/14ideas-section3-t-003.html

Who G

• Gets Sued?

10 20 30 40 50 60 70 80 90 2003 2004 2005 2006 2007 2008 2009

Number of Suits Per Agency Axis Title

USDA* DOI* DOT* DOC - NOAA USACE FERC Navy NRC EPA DOE Army HUD FCC TVA GSA

USDA includes FS and APHIS DOI includes BLM, FWS, BuRec, NPS, BIA/NIGC, MMS, OSM DOT includes FHWA, FTA, FAA

Cause of

• f the Suit

31% 24% 22% 10% 5% 8% Inadequate EIS No EIS Inadequate EA No EA No SEIS Other

Su Succe ccess of

• f Su

Suits

50 100 150 200 250 300 350 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

NEPA Litigation Survey 2001-2013

Final EIS Lawsuits Rulings for Plaintiffs

Con

• nflict

ct R Resol

• lution
• n
• In 1998, Congress passed the Environmental Policy and

Conflict Resolution Act.

• Established to assist Federal Government in implementing section

101 of the National Environmental Policy Act of 1969 (42 U.S.C. 4331)

• Provides assessment, mediation, and other related services to

resolve environmental disputes involving agencies and instrumentalities of the United States.

• In 2005, OMB & CEQ issued a joint “Memorandum on

Environmental Conflict Resolution”

• In 2012, OMB & CEQ issued a join “Memorandum on

Environmental Collaboration and Conflict Resolution”

How Doe

• es Sc

Scop

• ping F

g Fit into

• Nor
• rmative Theor
• ry of
• f

Pl Planning? g?

• Problem identification
• Data gathering
• Goal setting
• Identification of policy alternatives
• Weighing of alternatives/means v. ends
• Implementation
• Evaluation

Th Thou

• ugh

ghts f for

• r Discu

cussion

• n
• If there was one thing you could change about the

environmental review process under NEPA, what would it be and what would be the result?

• What role do you think planners should play in the

NEPA process? How could the strengths of planners be better utilized for better outcomes?

• What are the barriers to more robust participation

in environmental review by planners? How could these be overcome?

Lisa Schreibman,

Director of Strategic Planning, Operations Planning MTA-New York City Transit lisa.schreibman@nyct.com

Diana Mendes,

HNTB Corporation Senior Vice President National Transit/Rail Market Sector Leader dmendes@hntb.com

Moderator: Lindy Wordlaw,

Senior Manager, Public Sector Programs Elevate Energy Lindy.Wordlaw@ElevateEnergy.org

Di Discussion /

• n / Q&A