{"id":3173,"date":"2020-09-02T15:33:38","date_gmt":"2020-09-02T20:33:38","guid":{"rendered":"http:\/\/blogs.luc.edu\/compliance\/?p=3173"},"modified":"2020-09-02T15:33:38","modified_gmt":"2020-09-02T20:33:38","slug":"the-nepa-environmental-impact-statements-compliance-and-an-impending-threat-to-environmental-regulation","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=3173","title":{"rendered":"The NEPA: Environmental Impact Statements, Compliance, and an Impending Threat to Environmental Regulation"},"content":{"rendered":"

Daniel Bourgault<\/em><\/span><\/p>\n

Associate Editor<\/em><\/span><\/p>\n

Loyola University of Chicago School of Law, JD 2022<\/em><\/span><\/p>\n

On March 25, 2020, a judge for the United States District Court in the District of Columbia held<\/a> that the Army Corp of Engineers (hereinafter the Corp) failed to comply with the standards of the National Environmental Policy Act<\/a> (hereinafter \u201cthe Act\u201d) by failing to prepare an Environmental Impact Statement (EIS) before deciding to approve federal permits for construction of a portion of the Dakota Access Pipeline which ran under the Mississippi River.\u00a0 The ruling came four years after the Standing Rock Sioux Tribe brought the original action<\/a> in 2016.\u00a0 The Act is meant to ensure the public that agencies have considered the environmental consequences of a potential project before going forward with it, and so requires agencies to consider any and every significant environmental impact that could result from the project through completion of an Environmental Assessment, and, in some cases, an Environmental Impact Statement (EIS).<\/a><\/span><\/p>\n

What are the standards for compliance with the NEPA?<\/strong><\/span><\/p>\n

In order to comply with the Act, every agency is required to complete a preliminary Environmental Assessment<\/a>.\u00a0 This assessment is meant for the agency to conduct an analysis to determine if any significant environmental impact may occur, and to present the evidence.\u00a0 If the assessment indicates that there is a possible significant impact, the Act\u2019s standards (set forth in 42 USC 4332(c))<\/a> then require an EIS to be prepared before the agency takes any action, outlining in detail: (1) the environmental impacts of the project; (2) any alternative to the project; and (3) whether there would be sufficient precautions to minimize any potential significant impact.\u00a0 In determining if an action may have a significant impact<\/a>, the agency must examine the context and intensity of the action; the latter is based on 10 factors, and the standard requires that only one factor be significant to require an EIS.\u00a0 An agency is not required to take any specific actions, but in order to comply with the standard set out by the court they must not be arbitrary or capricious in conducting their Environmental Assessment, and .\u00a0 In the case in which an EIS is required, the Office of NEPA Policy and Assistance published an EIS checklist<\/a> to assist with compliance.<\/span><\/p>\n

The Corps failure to comply with NEPA<\/strong><\/span><\/p>\n

In this case, the Corp failed to adequately consider one of the ten factors<\/a>: the degree to which the effects on the quality of the human environment are likely to be highly controversial. The standard for \u201chighly controversial\u201d requires more than merely the fact that \u201cpeople won\u2019t like it\u201d and requires some evidence that there were flaws in the agency\u2019s methods or data.\u00a0 When a court is determining whether an agency has complied, they consider whether the agency accurately identified relevant environmental concerns, whether they took a \u201chard look\u201d at the problem, if they are able to make a convincing argument that there is no significant impact, and whether there are significant safeguards that would reduce the impact to a minimum if it is significant.<\/span><\/p>\n

The Corps concluded that an EIS was not necessary, but many other agencies respected in the realm of environmental regulations (including the EPA) voiced concerns<\/a> with the Corps methods and claimed that they were controversial, specifically in regard to the pipeline\u2019s leak-detection system<\/a>.\u00a0 The Corps argued that they complied with the Act by \u201cacknowledging and trying to address\u201d the issues that were brought up, but the court denied this argument, stating that the standard to be satisfied, set forth by recent precedent<\/a>, required them not only to try but to succeed. \u00a0Among the concerns was the shortcoming of the leak-detection system to detect a \u201csmall\u201d leak, which could be as big as 25,200 gallons a day.<\/span><\/p>\n

Ultimately, the court suspended the project<\/a> until the Corp came into compliance with the Act by conducting an adequate EIS, but the suspension was appealed an stayed<\/a> allowing the oil to continue flowing while the EIS is completed. \u00a0This standard provided a victory for the Sioux Tribe for now, but the Corp will have another chance to get the federal permits it needs after completing an EIS, which it expects to complete by 2021<\/a>. \u00a0Through the EIS requirement, NEPA ensures that agencies are not disregarding the environmental impact of potential projects and that they successfully address any environmental concerns of projects they wish to undergo, and the Act serves as an obstacle to projects with a high potential for causing adverse environmental consequences.<\/span><\/p>\n

Impending threats to NEPA\u2019s regulatory impact<\/strong><\/span><\/p>\n

The regulatory impact of NEPA illustrated above is being threatened both temporarily and permanently: temporarily by a recent executive order<\/a> (EO) meant to allow projects with potential to have significant adverse effects on the environment to circumvent compliance with NEPA in emergency situations, and permanently by a Final Rule<\/a> adopted by the Council of Environmental Quality<\/a> (CEQ) which effectively guts NEPA\u2019s regulatory significance.<\/span><\/p>\n

The CEQ expressly authorizes agencies to consult with the CEQ to make \u201calternative arrangements\u201d to NEPA regulatory requirements if an emergency circumstance necessitates action that could have a significant detrimental impact on the environment.\u00a0 The EO calls for heads of governmental agencies to pursue projects that normally would not satisfy the regulations of NEPA in order to \u201cfacilitate the Nation\u2019s economic recovery\u201d in the wake of COVID-19.\u00a0 This is an important endeavor, but this executive action could serve as a pathway around compliance with NEPA, or exemption from NEPA altogether, for projects likely to have a significant harmful impact on the environment where there was not before.\u00a0 While emergencies can necessitate actions we normally would not undertake, this EO call for heads of agencies to purposefully probe for projects to undergo through this loophole that normally would not pass NEPA standards, and directly undermines the purpose<\/a> of the Act.<\/span><\/p>\n

Even more dangerous though is the CEQ\u2019s Final Rule.\u00a0 The Rule codifies broad exemptions to the Act itself; diminishes the regulatory procedure, standards, and structures put in place to enforce it; alters the overall purpose of the Act which has been its foundation since its establishment; limits the overall scope of the Act; and in consummation overhauls the Act to a point where it is but a shell of what it was intended to be and is today.\u00a0 As a result, Illinois Attorney General Raoul joined nineteen other states along with several counties, the territory of Guam, and the District of Columbia in a lawsuit<\/a> seeking that the Rule be found unlawfully in violation of NEPA and the Administrative Procedure Act (APA).<\/span><\/p>\n

Ultimately, this Rule threatens to permanently render NEPA ineffective as our nation\u2019s most fundamental tool for environmental protection and regulation, and this lawsuit will be a landmark decision which will determine our government\u2019s role in environmental regulation and protection for years to come.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

On March 25, 2020, a judge for the United States District Court in the District of Columbia held that the Army Corp of Engineers (hereinafter the Corp) failed to comply with the standards of the National Environmental Policy Act (hereinafter \u201cthe Act\u201d) by failing to prepare an Environmental Impact Statement (EIS) before deciding to approve federal permits for construction of a portion of the Dakota Access Pipeline which ran under the Mississippi River.\u00a0 The ruling came four years after the Standing Rock Sioux Tribe brought the original action in 2016.\u00a0 The Act is meant to ensure the public that agencies have considered the environmental consequences of a potential project before going forward with it, and so requires agencies to consider any and every significant environmental impact that could result from the project through completion of an Environmental Assessment, and, in some cases, an Environmental Impact Statement (EIS).<\/p>\n","protected":false},"author":67,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[468,565,737,738,741,1205,1391,1887],"class_list":["post-3173","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-compliance","tag-dapl","tag-environmental","tag-environmental-impact-statement","tag-environmental-regulation","tag-journal-of-regulatory-compliance","tag-nepa","tag-standing-rock"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/3173","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/users\/67"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3173"}],"version-history":[{"count":0,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/3173\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3173"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3173"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3173"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}