Host: [00:00:00] Welcome to the NEPA project. A monthly podcast discussing NEPA and other environmental topics. In this episode we will discuss the purpose of NEPA and other environmental laws and regulations. From a historical perspective and its relevance today. This episode is brought to you by the Shipley Group. The Shipley Group provides training to help you comply with environmental laws and effectively and efficiently communicate environmental information. For more information go to shipleygroup.com. The guests on this episode will be Joe Carbone, Judy Kurtzman, Michael Smith and Rhey Solomon. Joe Carbone retired after 37 years with the U.S. Forest Service where he oversaw the agency's NEPA Policy in Washington D.C. and Atlanta. Joe also served as a deputy associate director for NEPA at the Council on Environmental Quality and 2016 where he worked on NEPA guidance and procedures. Judy Kurtzman worked for Utah State University, in the Quiney College of Natural Resources for over 15 years. While at the university she taught courses on NEPA and other environmental laws for undergraduate and graduate level students and administered the NEPA certificate program offered a partnership between Utah State University and the Shipley Group. During the last twelve years, she has also taught Shipley Group courses. Michael Smith is a nationally recognized leader in NEPA and other associated environmental law compliance with over 20 years of experience in project and program management. Technical Analysis, Policy Development, and Training Education for a wide range of public and private sector clients. Rhey Solomon retired from the Forest Service in 2003 after 32 years of government service and is now an independent environmental consultant. Rhey served as the deputy director of ecosystem management in the Washington office before retirement. Let's get to the conversation.

Judy Kurtzman: [00:01:53] In this initial podcast we're going to be focusing our discussion on the history of NEPA and bringing you up to date on how NEPA is functioning today. It will include information on Congress's debate over NEPA, now and prior to its initiation in 1970 when President Nixon signed it into law and we'll be talking about how other laws integrate into the NEPA process and how they have influenced the NEPA process. Beginning with the history we'll be looking at what went on in the 50s and 60s prior to the signing of the law as well and discussing about how NEPA influenced the passage of the Clean Water Act the Clean Air Act and some of the other important environmental laws that were passed during the early 70s.Joe will be talking about about the CEQ regulations that are an integral part of NEPA and an important aspect for anybody doing NEPA to understand, and how those were developed and the courts influence on those regulations. And finally we will discuss the relevancy of NEPA today to federal agencies decision making process as well as some the accomplishments and challenges that are associated with the process and that are being debated today. So next Rhey.

Rhey Solomon: [00:03:35] I've always felt that before one can appreciate the National Environmental Policy Act and its implications and its importance to federal particularly environmental decision making that ones got to understand the context of when this happened and why. And so let me give just a little contextual background as to where this fits and so if you go back and you look at that era of particularly the 60s and what was going on in our American society at that time you clearly have some major legislation particularly with the Civil Rights Act that was passed in 1964 which is a major piece of legislation that that in part I think set a stage for some rather large pieces of legislation including much of the environmental legislation that was passed in the 70s. So as a part of that context that sets the stage for NEPA is in the late 60s, 67, 68. You find that the Vietnam War protests were something that were on the agenda of American society not unlike years ago with some of the debates we had with our involvement in Afghanistan and Iraq and all that. And so a lot of the Vietnam protests captured some of the societal interest and concerns with what government was doing or not doing. And then you get the civil unrest that resulted primarily from the Civil Rights Act and the expectations of that act. And so by the time you get to the late 60s you find that a lot of the unrest about unfair treatment of minority and disadvantaged communities comes into play. And so you start getting the riots in Los Angeles which were in the early 60s and then that culminates with the riots in Detroit in the late 60s. And so a lot of that social unrest about civil rights is also spreading throughout the nation and is occupying a lot of the discussion of our society in terms of laws and attitudes and behaviors. And then you follow that with finally the assassination of Martin Luther King which that just brought that to the forefront in a higher level than it was before.

[00:06:21] So you have all these social issues now coupled with that which a lot of people I don't know whether they recognize that connection but but sometimes don't understand that in the late 60s was also the landing on the moon which was a huge technological advance. And the reason I bring that in is you will find that a lot of legislation particularly environmental legislation passed in that era have a philosophy embedded in them that we can solve whatever environmental problems we have through technology. And you see that flowing through a lot of the regulatory efforts in the Clean Air, Clean Water Act and so forth that go towards a strong regulatory technology based approach to environmental problems. So you find that a lot of what Congress was doing at the time then is really focused on using legislation as a way of setting some regulatory controls on some of the environmental problems we have. And so by the time you get done with looking at this era it is often characterized as the era of dissent and disobedience meaning there's a lot of unrest. There's a lot of dissent about what Congress and agencies ought to be doing relative to a lot of different issues environment being one and I've always argued that because some of these other social issues were prominent when the national environmental policy act was passed and some of the other environmental legislation quite frankly it slipped under the radar screen because some of these other policy issues that outstripped the concerns with the environment were also being discussed during that same period. And so that kind of sets the stage for the social setting and then I'll turn it over to Michael to expand on what brought the environmental concerns and particularly the National Environmental Policy Act into place. So Michael.

Michael Smith: [00:08:46] Yeah thanks Rhey. Yeah I think you know that context is really important because even though we can point to a few specific things that happen directly related to the environment during this same period that Rhey is talking about particularly in the decade of the 1960s leading up to the passage of NEPA. You know they weren't obviously divorced from all these other things going on at all. I'll try to talk about some of those connections but I'll start with kind of a very seminal event that I think encapsulated a number of different things that were going on and it was very early in the decade in 1962 was the the publication of Rachel Carson's book Silent Spring and that book and Rachel Carson was a pretty interesting individual. She was a government scientist however a marine biologist and probably many of you are familiar at least with the topic and the subject of that book which was primarily focused as the title suggests on birds and the title being sort of a metaphor for the loss of birds primarily through the use of the application of synthetic pesticides. But you know interestingly she didn't have a scientific biological background specific to avian ecology or mammology but instead was a marine scientist.

[00:10:11] But through her own personal interest and observations and where she lived and with neighbors and literally with with friends and neighbors sort of documented and anecdotally originally sort of the loss of songbirds, primarily through the application and several government led aerial spraying programs both for mosquitoes and there was a significant in the late 1950s a significant event involving aerial spraying DDT for fire ants for a potential begginings of invasion of fire ants in the northeastern U.S.. And actually there was a very early one of the earlier sort of environmentally related lawsuits where a group of citizens in Long Island New York actually sued the federal government for the application the aerial spraying in that case actually went to the Supreme Court and the residents lost. The government prevailed however out of that came some language in the decision that basically kind of gave the initial permission for citizens to eventually gain standing in environmental related lawsuits which we'll talk about later really gained traction at the very end of the decade and then through the 1970s and kind of happening almost simultaneously with the passage of NEPA We'll talk later about how the courts and court decisions and the ability for citizens and non-governmental organizations to challenge the federal government under the statute were related to this statute really has had a profound impact on the way we do NEPA today and continues to have a very substantial impact for a number of different reasons that we'll talk about later. So that book and her research which was basically this was not a scientific book this was a popular press book but it was documenting a lot of research that she had done and basically sort of restating research that was being done by both government and university scientists and actually in some cases kind of the beginnings of what became an environmental NGO community and Audubon Society was very prominent in some of the early work that they were doing and some of the research that she documented about the effects of the synthetic pesticides on not only avian species but there's a significant portion of that book that also talks about the effects on humans and there there was not a lot of concrete research that had been done at that point by universities and the federal government on potential cancer and other afflictions that might result from particularly in synthetic pesticides. But there was some early research and some suggestions. And so that was also part of that work and I think that it's you know it's interesting to see eventually as legislation evolved through the decade as Rhey mentioned earlier that you know we ended up with a focus in NEPA that is there's a substantial component related to effects of environmental harm not necessarily on the environment per se or on other species or the environment ecosystem itself but on the potential adverse effects to humans. And you know when we talk about the statute later that becomes kind of a central a central focus as well. The other portion of her book was also the fact that she documented instances of the government and certainly industry having public relations and other campaigns which she felt and I think later were proved to be true where basically misinformation or false information was being spread and she felt that that the process of the effects of these chemicals on both you know birds and other aspects of the ecosystem as well as humans needed to be opened up. And again I think we see eventually in NEPA and certainly some of our other environmental laws that in addition to their protection or their disclosure of environmental effects components. There is also an opening of the public process that eventually happened through NEPA and other statutes as well that I think you know again are completely or solely attributable to her book. But It was very influential and cited as being very influential. Now going farther into the decade after the publication of that book. I think it's also interesting that we have several major sort of environmental disaster may be too strong and we were both very prominent environmental events and as Rhey said you know some of these things sort of slipped under the radar because there was so much else going on in other areas of civil rights and riots and protests and war. But some of these events did rise to the level of kind of being right there in the front of the national radar. And I think it's also interesting that these things happened also at that time really when television and television news both at the national network level and at the local level really came into being. And I think it's sort of an accident that they kind of happened together. But I don't think it's an accident that we end that and that having sort of a big influence on how prominent they think happened. So for instance the Cuyahoga river a lot of people say that is a very influential event. The fires that resulted from the pollution on the surface of the river resulting actually and I think a series of eight or nine different fires over a decade but one in particular in 1969 just prior to the passage of NEPA that caused you know over a billion dollars of damage and burned a large portion of the waterfront of Cleveland along the river again had a lot of traction on the national news and the ability to report such a bad sort of live or almost in real time video footage was very influential and then also that same year we had that the largest at that time offshore oil spill happened in the United States off the coast of Southern California off of Santa Barbara. And again the images of thousands of them oil birds and marine mammals. You know were again very influential certainly to the public. But I think also it's been cited to members of Congress as to the importance of responding to you know again this recognition that you know growth and development and other things were leading to some adverse impact. And I think what Rhey said is really important. And I would agree with him about science and technology as being response. And I think it's interesting when you go back and you sort of read about what was happening at that time you don't see the resistance that we hear a lot of today to regulation being something that would harm or impede progress or economic development. But instead it was really viewed as a solution that you know we just haven't been applying technology and science to these problems these issues these these results. But you know we will and you know the legislation will require that to happen and then when we do that you know all will be better at least you know a lot will be better. And I think that that's also you know really important and of course in addition to these sort of nationally prominent events. There were a number of other local and regional level environmental issues that I think partly just as a result of the problem sort of building over time to the point where it became very prominent such as you might take like air quality in Southern California in the Los Angeles station is finally getting to a point where it's you know it's infecting thousands of people through pulmonary and respiratory. And these and the fatalities are just got to be such a point that it wasn't just a nuisance like oh the air doesn't look so good. What was actually causing health effects and of course we had other kinds of chemical types of contamination and pollution and certainly water quality as well just say Cuyahoga River but in other places throughout the United States and that was a big focus as well and a lot of the environmental legislation. So with that I'm going to turn it over to Joe to kind of springboard off of how some of those events then influence and eventually lead us to the passage of NEPA by Congress in late 1969.

Joe Carbone: [00:18:25] Sure. Thanks Michael. Thanks Rhey for the background. It gives us a nice idea about the backdrop of where Congress was acting within that time and certainly during the 60s there were several efforts to establish some kind of a national program on the environment. But it wasn't until 1969 during that time as Michael was saying where some of these environmental issues were in the forefront of the news the Cuyahoga River fires in Santa Barbara oil spill and so now we're looking in 1969 and in early 69 February Sen. Henry Jackson is the chairman of the Interior and Insular Affairs Committee.

[00:19:22] He introduces a bill which would create a Council on Environmental Quality but doesn't have anything in that bill about a national environmental policy or anything that is actually action forcing or requiring the government to do anything in particular so that he introduces that bill in February and then just prior to that, Congressman John Dingell submits an amendment to the Fish and Wildlife Coordination Act and that contains a brief policy statement and about the environment as well as provisions for a Council on Environmental Quality. And so that became the early framework for NEPA. So then during Senate hearings the requirement for a detailed statement which is what we now know as the environmental impact statement that NEPA calls for a detailed statement by the responsible official and that was introduced in the Senate hearings and then also a statement of policy. So the bill passed the Senate by July of 69 and unanimously and so it applied to all environmental impacts rather than just only fish and wildlife. Now you've got this bill coming out of the Senate. You have one that was introduced by Congressman Dingell in the House now have a conference in conference language Senator Jackson's version originally had granted each person a fundamental and inalienable right to a helpful environment that was deleted in favor of more of a less forceful kind of language where the language says each person should enjoy a helpful environment in other provision called for a finding by the responsible federal official as to the environmental impact of a proposed agency action. And so that finding provision didn't survive into NEPA but was an early attempt at something like the present environmental impact statement requirement. Professor Lynton Caldwell from the University of Indiana he influenced Senator Jackson's ideas on this provision calling for something that was more action forcing than just a statement of policy.

[00:22:10] So you see in 1969 a rather rapid development of legislation that starts in February and by January 1st of 1970 the president President Nixon signed it into law. So in less than a year that was pulled together recognizing that all through the 60s there were several attempts at passing legislation for environmental policy. But once this momentum coming out of this backdrop that Michael and Rhey talked about jelled in 69 pretty quickly the United States found itself with an environmental policy as well as some action forcing provisions in legislation. On the heels of passing NEPA there were other other laws that came into the scene and Judy's going to cover those for us.

Judy Kurtzman: [00:23:08] Thank you Joe. And before I move into the other environmental laws I just want to give a little bit on what Joe said about the passage of NEPA and the importance of NEPAs influence on the thinking of as as Michael and Ray mentioned the thinking of Congress at the time and of the public. So under NEPA, the CEQ, The Council on Environmental Quality was established and Joe's going to talk about the CEQ a little more in depth but at the time that NEPA was passed CEQ was believed to be somewhat the overseer of the country's environmental status. What were the major problems we're having as well as being in the president's cabinet and helping the president understand what are most pertinent environmental concerns. We're less than a year after it was passed however Congress brought in in December of 1970 or developed the Environmental Protection Agency the EPA and much like NEPA and the CEQ. The EPA was created to address concerns about environmental pollution, particularly the ones that Michael is talking about pesticides and insecticides and the influence that they were having on the health of the nation. That also the influence they were having positively on the ability for agriculture to be more successful. So when EPA was created in December of 1970 its purpose was to oversee the insecticides and pesticides being used but Congress also during that same time established or I should say amended the Clean Air Act and they added Section 309 to the Clean Air Act which gave the EPA a part in the NEPA process. So EPA is responsible for reviewing all draft Environmental Impact Statements that federal agencies have developed as well as to put a notice in the Federal Register of the intent of the agency and the availability of draft environmental impact statements for comment. The EPA also was given the responsibility of rating draft environmental impact statements for two different aspects. One rating is based on the actions within that are being analyzed within the draft document their level of impact and the other rating is based on how EPA feels the adequacy of the document is in complying with Section 102 of the Act as well as the CEQ regulations. So EPA has an administrative duty with NEPA and while they don't have any regulatory responsibilities or authority, their rating of draft environmental impact statements can have a huge influence on an agency's ability to first of all justify their level of impacts to the public as well as to the EPA and sometimes the Army Corps of Engineers. But it also influences the potential lawsuits that can come if a draft EIS is deemed by the EPA to not be adequate in addressing NEPA and the CEQ regulations as well as having a high level and unacceptable level of impact potential litigants will see that as a as a green light more or less for lawsuits. So the EPA can influence even though it's not regulatory can influence the NEPA process for agencies. But at the same time it can give agencies a head up to get their final environmental impact statement into line as well as potential mitigation measures, helping them with mitigation measures, that would reduce the level of impact. The EPA was passed with this authority to write the regulations in addition to the NEPA process. The EPA was also given responsibility for developing the regulations for the Clean Air Act and the Clean Water Act. The Clean Air Act was first amended in 1970 and the Clean Water Act was also amended in 1972. So although we had a Clean Air Act and we had a Clean Water Act of sorts prior to the early 1970s neither of those laws had any real teeth and they weren't really being acknowledged as something that states or industry needed to have much concern about. So in 1970 the Clean Air Act was amended to require states to start regulating industry and the amount of emissions in six different areas. They're referred to today as NAAQS it's the National Air Quality Ambient Standards. And most states today have developed their own standards that are more stringent than the ones developed by the EPA. And federal agencies are required to follow the state's standards if they are more stringent.

[00:30:13] The Clean Water Act when it was amended in 1972 was also given teeth and the EPA is ultimately responsible for overseeing the Clean Water Act but they do it in partnership with the U.S. Army Corps of Engineers. The Army Corps of Engineers is responsible for giving national and individual permits for destruction of wetlands and dredging and filling of waters of the U.S. and it is the Army Corps of Engineers who issue those permits. However the EPA has the ultimate say over whether the level of impacts that particularly an individual action is happening is too destructive and they can override those permits and oftentimes that comes about during their review of an environmental impact statement when they're made aware of the level of impacts that an action may be having on waters of the U.S.. So the EPA has played a large role in helping agencies, and some agencies may not feel this way, but in helping agencies address problems that the EPA identifies during the draft environmental impact statement stage as well as implementation of mitigation measures that will reduce or avoid or potentially reconstruct after the action is completed. And the EPA also has played a large role in, as Michael mentioned, cleaning up our air and our water over the last almost 50 years. Through regulations that they have implemented and enforce. At the time that the Clean Water Act was passed two thirds of our waters in the U.S. were no longer fishable or swimmable. Today that number has dropped to a third. So the EPA has been working diligently to clean up a number sections of our human environment. So with that I will pass it back to Michael who will talk about the regulations and some of the court rulings that influence the National Environmental Policy Act and regulations that came out from that. So Michael.

Michael Smith: [00:33:15] Thank you Judy. Judy was mentioning you know that early very early creation of that revision in the Clean Air Act Section 309 giving EPA the authority to review and comment and rate or grade federal agencies statements that they were preparing in those very early days and NEPA was really part of a larger situation where there was a lot of confusion. There were two things going on. One was a lot of confusion about what exactly the statute was calling agencies or mandating them to do in this sort of environmental impact review process. And of course, part of that the reason for that is simply the language and the structure of the statute itself for those of you looked at it you know it's very short particularly for a federal environmental statute it's only about six pages long. And it's actually written in pretty simple clear understandable language and some people would even say parts of it are even written somewhat elegantly especially from writing from Congress. But the result of that it doesn't have a lot of detail in it and in fact, I think it would be fair to say it was pretty substantially vague on exactly how to comply with. Particularly again as Joe discussed, that action forcing mechanism the procedure to prepare the detailed statement. And so that was one piece and the other piece was there was just, you know, resistance from many federal agencies to want to do that and that kind of change their decision making process. Particularly I think. Not only disclosing the facts but also examining being mandated to consider alternatives as well. And also in some cases have a public process and then have members of the public suggest alternative ways of doing something that I think particularly for agencies that employed lots of experts and expertise in whether it's infrastructure or you know other areas felt that that was sort of a you know maybe an improper questioning of their sort of authority. And so there was a feeling of, in the early days NEPA a lot of just outright ignorance or a lack of compliance. And so I think certainly obviously Congress responded to that by sort of giving EPA this you know kind of I've heard some people call it sort of a quasi, sort of, policing power that doesn't really, as Judy discussed has necessarily and enforcement. You can't really call it an enforcement mechanism but certainly it was a layer of kind of external review or a separate review of the agencies. But the other big thing that happened as a result of this was the interjection of the courts of the federal courts and essentially citizens and others using sort of this newfound power I guess if you will in federal court again in the late 1960s early 70s granting the status and standing for citizens and others to challenge the federal government on a wide variety of these newly emerging environmental statutes and including NEPA. And so there was a flurry of federal court activity and decisions. And one of the most prominent cases and it was really the first federal court decision at the appellate level that had a real substantive effect on how NEPA balloon's going to be viewed by the federal courts. And we see the the language and the principles and in this decision affecting NEPA practice even today it had a huge influence on how it transpired through the federal government.

[00:37:03] So the case is called the name of the case Calvert Cliffs Coordinating Committee versus the Atomic Energy Commission. And we don't have an atomic energy commission around today they eventually became the Nuclear Regulatory Commission the NRC. But at that time in the 60s there was proposed originally a nuclear power plant on the east shore in Maryland on the shore of Chesapeake Bay by the gas electric company that came in probably I'm sure as many of you know the project was eventually constructed despite the litigation the Calvert Cliffs Nuclear facility. But at that time there was controversy over the potential environmental effects of having this nuclear power facility located right above the bay and discharging water coolant water into the bay and effects not only of potential radiological contamination in the bay but also the temperature and the heating and the effects it would have on the aquatic ecosystem, crab fishery economically etc. and out of that came originally some research from scientists at the John Hopkins University in Baltimore. That led to a group that formed called the Calvert Cliffs Coordinating Committee that eventually challenged the agency's decision to construct the power plant and ultimately in the District of Columbia Court of Appeals. The court ruled in favor of the challengers.

[00:38:35] It was really the first loss by the federal government at the appellate court level and in a very strongly worded opinion the court basically said that in fact the agency needed to comply with those procedural section 102 components of NEPA and that the agency's argument which had been that their main mandate was not to consider environmental effects but was to consider radiological contamination and threats of accidents and safety essentially for humans but not necessarily other broader environmental effects or effects on the ecosystem. And they also argued that they comply and they were complying with other environmental laws related to his duty mentioned air quality and water quality and other state level types of environmental review and permitting and because that they have done that or they were in the process of doing that that that would essentially substitute for NEPA review and the court very adamantly said no that they disagreed with that approach and they said just because the agency might fulfill a threshold or acquirement for say an air quality impact or a level of water pollution that didn't mean there was no effect, it just meant that it was below the level of exceeding some standard a requirement. But there was still potentially an adverse effect and that therefore that should be number one disclosed to the public. But also remember two, that the agency should then consider that effect amidst all the other impacts both positive and negative and economically and the effects on the nation's energy supply etc.and that the detailed statement that NEPA that Congress required through NEPA was the vehicle in which they should disclose that essentially that conversation that decision making process by the agency. And so they felt by the agency saying well we're not really going to do that. They in effect were in and the court ruled that they were violating NEPA and they did require them to go and prepare what became an environmental impact statement for that particular project.

[00:40:45] And so that again of course while I was that was just specific to that agency there were certainly other agencies of the time that you know I think felt similar reasoning that you know their mandate particularly if they weren't say a resource agency like the Forest Service and Bureau of Land Management that you know again environmental protection wasn't in their organic act or in their preview and therefore perhaps well again NEPA didn't apply. But again the court very adamantly said yes it does to any federal agency and this is a requirement unless you have some sort of statutory conflict that would prevent you from doing or using the internal analysis. You had to do it. And so again that had a very profound effect in that kind of open the gates to a lot of federal court decisions and the District Court and appellate court level and then eventually we started to see in the mid 1970s cases in some cases going to the Supreme Court in another case it's often cited in this era as having a very an influential effect on NEPA was the Kleppe v. Sierra Club Supreme Court decision in 1976. And this was a case involving the Bureau of Land Management considering coal leasing in the northern Great Plains and they had one specific lease and they felt was at a project stage kind of meeting that definition of a major federal action. And so they prepared a NEPA EIS on that particular proposal. But the challengers led by the Sierra Club felt that there was actually a much broader plan that the agency had for a much more extensive program of coal leasing throughout four different states in the northern Great Plains and therefore the agency should have looked at all of them together in a single deep analysis.

[00:42:35] Now in the end the Supreme Court ruled against the challengers and for the federal government for BLM and said no that they didn't have to do it in this instance because those other actions in the future had not advance to what the court felt was that that proposal for a major federal action stage. In other words and this became kind of a famous quote that people use all the time today they said that other proposals were merely contemplated. And so this kind of established this question that had been coming up repeatedly throughout the early days of NEPA. At what point do you have, should you start the NEPA process and maybe even more importantly what point do you have to finish it before taking action. So even though they ruled against that there are some important other principles that came out of the language in the decision one of which is the court said if in fact the agency had had a number of different proposals coming to that formal proposal stage. At the same time then in fact they would need to do a single NEPA document that would look at and they use the language of cumulative or synergistic effects and then a lot of ways this then influenced, eventually, as I think Joe will talk about next, one of the key requirements that was then added in the CEQ implementing regulations just a few years after this decision was a requirement to both consider cumulative impacts in the individual NEPA analysis but also the CEQs language to consider whether the agency may have a group of cumulative actions as well. So that became an important component coming out of this particular decision.

[00:44:19] And so finally the other thing that was going on to this period in addition to the court decisions was there was a lot of pressure on CEQ to develop specific instructions essentially for agencies to implement NEPA again largely because of the way the vagueness of the statute in terms of how to actually do that. The action forcing procedure and preparing the detailed statements and CEQ actually right away, I think 1971, they published the first version of implementing regulations but they were much shorter and briefer than what we use today. And they had several other revisions but it was really the election of Jimmy Carter in 1976 and in the Carter administration early on there was a big movement to substantially increase staff and a big charge and this also came out of an executive order that President Carter issued very early in its ministration that the agency actually really developed a much more detailed set of instructions and the court decisions then that it occurred up until that time 1976 1977 or so, greatly influence, I think a lot of the key principles that then came out of the 1978 issuance of the CQ regulations that that team that had worked on through an extensive process of consulting with federal agencies and NGO groups and industry and putting that all together and coming out with that version of course that versioning I know its long time ago almost actually 40 years ago, as many of you know that's essentially still the regulations that we use today. There was one relatively well one change in one little section in the regulations that happened in the mid 1980s otherwise those regulations from 1978 are still the ones that we use today. So they are incredibly important and influential.

[00:46:12] And we'll talk about later in this podcast or in later ones it becomes a significant issue with our practice of people today because obviously many things have changed. We've had probably thousands of federal court decisions since 1978 at the federal district court and appellate court and several Supreme Court decisions as well since then but we know that the regulations themselves haven't been changed to kind of update that in so many areas of NEPA practice say, for instance, how we prepare environmental assessments are still a lot of confusion about exactly what the requirements are. But nonetheless, that history to move to where we ended up with those implementing regulations is important and again lives with us today and I'm going to turn it over to Joe now to talk about what CEQ did there in that effort in the mid late 1970s to create regulations that we use today. Joe.

Joe Carbone: [00:47:10] Thanks Michael. As Michael said. While CEQ did have early guidelines in 1971. They did not actually issue final regulations on NEPA until 1978. So you have this period of time, eight years, from when the Act was passed. You got some guidance coming out of CEQ, a lot of word coming out of the courts and interpretations about what section 102 of NEPA means these action forcing provisions. And so we get these these interpretations, that as Michael said, those things influence the CEQ final regulations coming out in 1978. So while CEQ has always had some level of guidance its this ongoing case law that kept ramping that up and fine tuning it to what we currently use today. With very little change. The one change you Michael mentioned.

[00:48:19] And so some of this language like Michael says, cumulative actions, cumulative effects that shows up in the CEQ regs directly influenced by the courts and influences really how we how we approach environmental impact statements today. So one of the things that the CEQ regulations and those are are in the code of federal regulations 40 CFR Code of Federal Regulations. 1500 to 1508. So I want to highlight some of these particular areas within the Council on Environmental Quality regulations that have a touch back to both the ACT and the requirements coming out of the act. So the opening section of the CEQ regs, under their purpose and policy in their mandate, it reflects the policy and the purposes of NEPA itself from Section 101. So that section kind of re-establishes or puts it out there for federal agencies that are implementing the act to understand that this comes from an interest of not only protecting the environment and taking on the responsibility as well as stewards of the environment for future generations. So that's what the action forcing provisions from Section 102 are intended to do. And so CEQ reminds us that with that whole purpose of why we even have the act to begin with so that shows up in the regs. The CEQ regs lay out a process for compliance. Basically they lay out this process that agencies will follow to integrate environmental impact statements with agency planning and decision making as well as with other environmental laws. So the the intent is not just about writing a detailed statement but it's to do this with a purpose and that it will be integrated into agency planning and decision making and that will be integrating other environmental statutes within that. CEQ regulations, probably the bulk of them, speak to requirements for environmental impact statements.

[00:50:51] Many of these requirements coming out of interpretations by the courts. So the CEQ regs provide the detailed requirements from not only the content of an environmental impact statement but also, how they will be circulated for public review, public comment, again, laying out not just that it's about paperwork but it's about information that will inform agency decision making as well as involve and inform the public. CEQ Reg's also have quite a bit in them about reducing paperwork so early attempts at writing environmental impact statements. Obviously these are supposed to be detailed statements as is called for in the act. And so trying to get to the point of well it's not just about the paperwork it's not just about amassing paper, but it's about paper work that is done with meaning for a decision and that can be used by decision makers in the public and so, CEQ regs lay out many things. It's pretty much oozing with paperwork reduction in delay reduction kinds of mechanisms. These include things like environmental assessments. While the statute did not call for an environmental assessment, the CEQ regs allow for agencies to prepare environmental assessments for those cases where they are unsure whether or not they'll have a significant environmental effect. And so the intent there is, an environmental assessment is supposed to be a concise document that just provides the agency with its rationale as to why an environmental impact statement won't be necessary. Therefore there won't be a need for quote a detailed statement.

[00:53:00] CEQ regs also identify categories of actions that the agencies can identify categories of actions that do not typically have significant environmental impact statements and therefore those actions would not typically trigger the need for an environmental impact statement. Nor would they need to trigger an environmental assessment. And so the CEQ regs issuing their regulations on this push this to the agencies, and require the agencies to put out their own regulations in complying with NEPA as well as within the umbrella being within the umbrella of the CEQ regulations. One of the provisions that they're asking the agencies to do is to identify those actions that are typically would not have significant effects which we know as categorical exclusions. So this whole construct of the CEQ regs, lays out in great detail the requirements for the detailed statement the environmental impact statement. It puts a backdrop to remind agencies about why NEPA was passed and it also lays out requirements first for agencies to write their own regulations to further efficiency in the act. That Efficiency in the act is the ability to provide for categorical exclusions for those agency actions that don't typically have significant effects. The Supreme Court has also clarified agency responsibility under NEPA. It has stated that that NEPA has twin aims and so there's two things for the agencies that they have obligation for under NEPA and these would be to consider every environment significant environmental aspect or impact of a proposed action and then secondly to inform the public that it has indeed considered environmental concerns in its decision making process. So this twin aim of NEPA, again first places upon the agency an obligation to consider every significant aspect of the environmental impact of a proposed action. And second it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision making process.

[00:55:42] So Congress didn't enact NEPA and require agencies to elevate environmental concerns over other appropriate considerations. But it required that agencies take a hard look at their environmental consequences before taking actions with significant environmental effects and to inform the public in the decision making about those. So with that I'll turn it back over to Rhey to talk about some current trends in NEPA.

Rhey Solomon: [00:56:19] Thanks Joe. Of course the current trends are varied and rather complex particularly with changes of administration, changes with Congress and all of that. But but let me let me at least go back to probably looking at the late 90s and then into the turn of the century where CEQ, I think after that initial number of decades, saw some opportunities to focus attention on ways, as Joe already indicated of streamlining and making the NEPA process more efficient. And probably the first effort to do so that was done in a packaged way rather than individual items was the modernization report of 2003. And I think that report still today is very applicable with the kinds of improvements or trends that the CEQ had in mind. So let me just quickly summarize some of those and then add to that a more recent one. One of those is certainly looking at NEPA in an effort to be more collaborative. Meaning the involvement with other state, local, federal agencies as well as perhaps some working relationships and greater attention to public involvement and working in a more collaborative setting. That doesn't mean collaborative decision making in the sense that the federal government of course cannot as part of law engage in discussions with all kinds of different interests and arrive at a decision.

[00:58:19] But certainly we can engage in a collaborative process where you bring various interest to the table, you dialogue with them in a more constructive way than we might have done back in the 80s and 70s. And as a result you try to reach a agreement on what a course of action might be. So certainly this effort of collaboration has been advanced by CEQ and a number of efforts since then CEQ has put out a guide for public participation and collaboration which expands on that. And so that's one of the areas I think that you find a current trend is is moving forward with. Another that was also advocated back probably in the late 90s but more especially into around 2008 up to current and that is the use of adaptive strategies. Meaning that NEPA was intended as a planning instrument or tool and not an instrument that would be used to actually monitor, adjust and maintain a continuous improvement program. And so the adaptive strategy was suggested by CEQ as a way of really ensuring whatever planning decisions were decided by your NEPA document that you have a way of adjusting your projects as you go or certainly at a minimum that you would monitor what's going on with those projects and then in future projects be able to learn from those and make the adjustments through an adaptive management strategy. And so I think NEPA is gaining more acceptance as a vehicle by which to do the adaptive model of planning and take NEPA into more of an implementation tool rather than strictly a planning tool.

[01:00:35] A third one that has gained attention lately is the idea of particularly for the regulatory community moving towards more programmatic agreements among the various regulatory agencies and management agencies on how to set sideboards, constraints, guidelines standards for operating a project within a program agreement. Thereby freeing up the limited resources within the regulatory community whether it's NOAA fisheries or EPA or fish and wildlife service to devote their energies on the really more complex projects and through programmatic agreements to establish protocols that if followed allow agencies to move forward in an environmental protective way without having to go to some type of a formal consultation with the regulatory community. And that is gaining more and more emphases as we find government trying to be streamlined.

[01:01:58] Which then brings into the last item and that would be particularly the emphasis of late by this administration of streamlining the NEPA process both in the sense of the amount of time it takes to do the analysis and complete the document as well as the amount of paperwork that is devoted particularly to the length of the environmental assessments and environmental impact statements. And that is an ongoing effort that I think a lot of agencies are currently wrestling with and I would think that there are ways of reaching some of those goals. But we'll have to see how well the agencies can respond to that. And so with that I'm going to turn back over to some of the other participants and have them interject any other trends that they see that might be going on. So Joe. Michael. Judy anything you want to offer.

Judy Kurtzman: [01:02:58] I would like to emphasize some of the things that Rhey just talked about with the collaboration between federal and state agencies, local communities and tribal entities, Alaskan and Hawaiian native entities.

[01:03:16] One of the things that right now we're finding helps the NEPA process to be more efficient and to, I guess, meet the goals of the original goals and purposes of NEPA, is that early, early collaboration is the key to efficiency and meeting the goals. That consultations with other entities that have information or regulatory responsibilities. Getting those done right at the beginning of the process instead of waiting until later and getting those entities to help in the development of even the purpose and need and the alternatives. So they're not coming in after the agency has pretty much finished everything and then saying, Oh, by the way, we need you know to consult with you and you know take a look at this. Getting that input right at the beginning really improve the efficiency and effectiveness of the NEPA process. So I really wanted to stress what Rhey was saying about that collaboration and the importance of it.

Joe Carbone: [01:04:42] Along those lines, Judy and Rhey, of this early collaboration. What I'm seeing is more discussion about before even launching into, say a Notice of Intent for an environmental impact statement. That the agency is supposed to spend more time upfront trying to understand and articulate what is the purpose and need and then what's the proposal. And as the agency buy into it I mean is it really something the agency intends to do. And so that's an investment in time outside of the NEPA process but pretty much sets up for a more efficient NEPA process. Once the agency says, oh yeah we do have an action that we want to propose.

[01:05:32] We've thought through it and now it's time to move it forward. And as Judy said, in some cases the agencies are collaborating on that. So they're getting some level of buy in at least to the purpose they need early on. Which helps to set a proposal up for success once it's into the NEPA process.

Rhey Solomon: [01:05:52] Exactly. I would agree that I agree. I also see what's going to be helpful with that as well Joe is agencies are setting up their own dashboards which you which is nothing more than that a way of alerting the public when they start projects and where they are and completion dates. And I think by by doing that it will be much more transparent as to where agencies have started a project prematurely under the NEPA umbrella. Where there's a lot I think more opportunity for upfront discussions, the more thoughtful development of a purpose and need and proposal, before they start jumping through hoops of the NEPA process and making them more formalized. So I think agencies will learn as they create those dashboards as well.

Judy Kurtzman: [01:06:44] And I think their has been this constant barrage of complaints about the length of time it takes for NEPA to get completed. And during a recent House committee meeting it was brought up that a lot of times it's not the NEPA process that is causing delays but its the changing of the project that is that causes the delays. So originally the NEPA team is given a purpose and need with an alternative and they're in the process of doing their analysis and then suddenly the proponent or the decision maker or whomever says you know I think we I think we should change this. And I think maybe we should approach it in this way which means all that effort that was done by the team and analyzed in the original proposal on and proposed action ends up being for not and are starting over again. And I think this collaborative process could help agencies define that purpose and define this action more concretely up front so some of those changes aren't being made in the middle of the process.

Host: [01:08:12] Thank you for listening to this episode of The NEPA Project. To view the transcript of this discussion. Go to shipleygroup.com/podcast. If you have any questions or comments in regards to this episode or you have any topics or ideas for future episodes, please reach out to shipley@shipleygroup.com. We'd love to hear from you. If you found this episode helpful, please subscribe on iTunes or anywhere you listen to podcasts and share this podcast with your colleagues. This episode was brought to you by The Shipley Group. The Shipey group provides training to help you comply with environmental laws and effectively and efficiently communicate environmental information. For more information go to shipleygroup.com. Thanks for listening and remember. NEPA is just good planning and decision making.