In Draft Mitigation Guidance, CEQ Moves Toward Adding Substantive Mitigation to NEPA’s Procedural Requirements

There was much attention given in the environmental press last month – including in this Newsletter – to the issuance by the Council on Environmental Quality (“CEQ”) of draft guidance on incorporating climate change into agency decision-making. See Marten Law Environmental News, CEQ Marks 40th Anniversary of NEPA With New Guidance on Greenhouse Gas Impacts, Mitigation and Categorical Exclusions. Less well publicized – but perhaps more immediately significant – was a separate guidance issued by CEQ on the same day, encouraging federal agencies to follow up when a “finding of no significant impact” relies on mitigation of environmental impacts, and when agencies commit to mitigation in an Environmental Impact Statement. The Draft Mitigation Guidance arguably moves CEQ from its traditional mission of protecting the environmental review process, toward a mission of requiring substantive mitigation of impacts identified during NEPA reviews. CEQ will accept public comments on the Draft Mitigation Guidance until May 24, 2010.

CEQ’s Draft Mitigation Guidance counsels federal agencies, during the environmental review process to:

1. Establish binding commitments for mitigating adverse environmental impacts identified by the reviewing agencies, and to enforce those commitments through their existing legal authorities;
2. Monitor (or require monitoring of) the implementation and effectiveness of mitigation measures; and
3. Make the results of their monitoring available to the public, preferably through the lead agency’s web site.

I. Role of Mitigation in NEPA Decisions

The National Environmental Policy Act (NEPA)[1] requires federal agencies to prepare an environmental impact statement (EIS) prior to taking any major federal action “significantly affecting the quality of the human environment.”[2] It further directs that an EIS identify any adverse environmental effects which cannot be avoided.[3] The U.S. Supreme Court found that this clause implies an obligation to discuss the extent to which adverse impacts may be avoided, along with those impacts that cannot.[4] The Court added that inclusion of a reasonably complete discussion of possible mitigation measures serves NEPA’s “action forcing” function.

CEQ’s NEPA regulations define “mitigation” as measures to avoid, minimize, rectify, reduce, or compensate for environmental impacts.[5] The regulations require that a federal agency discuss possible mitigation measures in defining the scope of an EIS,[6] in discussing alternatives to the proposed action[7] and the consequences of the proposed action and its alternatives,[8] and in explaining its ultimate decision.[9]

Mitigation also sometimes has a role in an agency’s decision whether to prepare an EIS rather than a more abbreviated Environmental Assessment (EA). An EA provides a brief discussion of the need for the proposed action and the environmental impacts of the proposed action and alternatives to that action.[10] If the EA supports a finding of no significant impact (FONSI), then the agency need not prepare an EIS.[11]

It has long been a common practice for agencies to find that a proposed action has the potential for significant impacts, but that those impacts may be mitigated.[12] In these cases, the agency adopts a so-called “mitigated FONSI”. CEQ’s draft mitigation guidance would formally approve this practice, subject to a commitment to carry out the mitigation.[13]

While mitigation has a role in the NEPA process, the statute does not impose a substantive obligation on federal agencies to require mitigation of environmental impacts. The Supreme Court made this clear in Robertson v. Methow Valley Citizens Council, where it noted the importance under NEPA of discussing mitigation in sufficient detail to ensure that environmental consequences have been fairly evaluated, but differentiated that procedural obligation from any substantive requirement to actually develop and adopt a detailed mitigation plan.[14] It held that requiring a fully developed mitigation plan before an agency acts would be inconsistent with NEPA’s reliance on procedural mechanisms.[15]

The same is true when an agency relies on mitigation to produce a mitigated FONSI. Courts have held that the mitigation measures need only be developed “to a reasonable degree,” need not detail the precise nature of the mitigation, and need not fully mitigate for the identified adverse impacts.[16]

II. CEQ’s Draft Mitigation Guidance

CEQ’s draft guidance begins by recognizing that federal agencies often rely upon mitigation to reduce environmental impacts through modification of proposed actions, and in framing alternative actions. It then cites past work by CEQ and others concluding that ongoing implementation and monitoring of these mitigation measures is “limited and in need of improvement.”[17] The prescription offered by the Draft Mitigation Guidance has three elements: (1) if an agency commits to mitigation in NEPA documents, that commitment should be made enforceable; (2) agencies should monitor the implementation and effectiveness of mitigation, and (3) affirmative efforts should be taken to make information on mitigation monitoring available to the public.

A. Requiring That Mitigation Be Enforceable

The Draft Mitigation Guidance would direct agencies to create, as part of their NEPA implementing procedures, processes to ensure that mitigation actions relied upon in a mitigated FONSI or that are part of the proposed action in an EIS are documented, and that implementation plans are created to ensure the mitigation is carried out. The guidance directs that the mitigation commitment be clearly documented in NEPA documents and in decision documents such as the Record of Decision. The guidance also suggests methods for ensuring that mitigation is implemented, such as attaching conditions to financial agreements, grants, permits, or other approvals, or conditioning federal funding on implementing mitigation.

If funding for mitigation is not available at the time of the decision, the draft guidance calls for the potential impacts of not funding the mitigation to be discussed in the NEPA documents. If the funding relates to a mitigated EA, the guidance would direct the federal agency not to proceed without preparing an EIS, unless or until mitigation funding is available.

The draft guidance also calls for inclusion of adaptive management as part of the agency’s action, so that some response may be required if mitigation fails. It suggests that if mitigation supporting a mitigated FONSI fails, then an EIS may be required. It concludes that the agency decision should be structured so that a substantial mitigation failure triggers further action by the agency.

The suggestion that mitigation actually selected for implementation as a result of the NEPA process should be implemented is not revolutionary. The existing NEPA regulations state: “Mitigation … established in the environmental impact statement or during its review and committed as part of the decision shall be implemented by the lead agency or other appropriate consenting agency.”[18] CEQ points out that the Corps of Engineers already has incorporated mitigation implementation requirements into its regulations.[19] However, CEQ’s draft guidance, by calling for detailed mitigation plans and for revisiting agency decisions based on post-decision mitigation monitoring, may have crossed the line drawn by the Supreme Court between NEPA’s procedural requirements and substantive obligations that are beyond the scope of the Act.

In Robertson, the Court overturned a Ninth Circuit decision which would have required a detailed description of specific mitigation measures that would be implemented as part of the proposed federal action. The Court held that “[b]ecause NEPA imposes no substantive requirement that mitigation measures actually be taken, it should not be read to require agencies to obtain an assurance that third parties will implement particular measures.”[20]

CEQ’s Draft Mitigation Guidance does not discuss Robertson, or any other NEPA case law. Instead, it focuses on the specific situation where an agency relies on mitigation to support its conclusions in the NEPA process. Still, to the extent CEQ’s guidance may be read more broadly, to suggest that detailed mitigation plans should be the norm, it would run afoul of Robertson. And the situations where enforceable mitigation may be required are likely to be narrower than CEQ appears to suggest. For example, in County of Rockland, New York v. Federal Aviation Administration,[21] the D.C. Circuit last year held that the FAA’s statement in a response to comments on an EIS that it would institute a compliance monitoring program as part of a noise mitigation plan was not enforceable, saying that the “stray comment” was not a binding commitment to develop such a plan. The Ninth Circuit also recently noted that a mitigation plan need not be legally enforceable to comply with NEPA.[22]

B. Monitoring the Implementation and Effectiveness of Mitigation

The existing NEPA regulations state: “Agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases.”[23] CEQ’s Draft Mitigation Guidance expands upon this directive, suggesting that monitoring should be required any time that a commitment is made in the NEPA process to implement mitigation.

The draft guidance identifies two forms of monitoring: implementation and effectiveness. The objective of implementation monitoring is to document that promised mitigation is actually carried out. Effectiveness monitoring is more qualitative: it should evaluate whether the mitigation achieves its objectives.

The post-decision monitoring requirements in CEQ’s guidance are based on the continuing duty NEPA imposes on federal agencies to gather and evaluate new information relevant to the environmental impacts of their actions. Normally, this duty is invoked as grounds for preparing a supplemental impact statement, where significant new information becomes available after an EIS is prepared but before the agency makes its final decision (or the information was left out of the original EIS). But here, CEQ is suggesting that the obligation could continue long after the agency has made the decision that triggered the need for NEPA analysis. This aspect of the guidance is likely to draw significant public comment. For example, this duty, if it exists, presumably would be limited to the extent of the federal agency’s ongoing jurisdiction to influence the actions it has previously authorized.

To facilitate effectiveness monitoring, the Draft Mitigation Guidance also calls for measurable performance standards for mitigation “to the greatest extent possible.” This directive also appears to conflict with the Supreme Court’s direction in Robertson that NEPA does not require fully developed mitigation plans.

C. Publicizing Monitoring Results

The existing NEPA regulations state that “upon request” lead agencies should “make available to the public the results of relevant monitoring.”[24] The Draft Mitigation Guidance seeks to convert this duty to respond into an affirmative obligation to push information on mitigation monitoring out to the public. To that end, CEQ’s guidance links NEPA to the Freedom of Information Act (FOIA), stating that NEPA incorporates FOIA by reference. CEQ then interprets FOIA to require agencies to post information that may be of public interest, such as NEPA documents and NEPA mitigation monitoring results, on their web sites. The guidance also expressly rejects limiting availability of mitigation information and monitoring reports to responses to requests made directly to the agencies by members of the public.

CEQ’s directive does not provide any limits on this new obligation to post NEPA-related data on the web, other than to suggest that the methods used to provide information to the public “should be commensurate with the importance of the action and resources at issue.” The guidance also does not address how this new publication obligation would interact with the existing public notice requirements of the NEPA regulations, such as sending information to those who comment on NEPA documents. If finalized, this new requirement would significantly increase the NEPA compliance burden on federal agencies. It also would be likely to have a prominent role in future NEPA litigation.

III. Conclusion

CEQ’s Draft Mitigation Guidance would increase the level of detail required in mitigation described in NEPA documents, in apparent conflict with Supreme Court jurisprudence. It would expand monitoring obligations, and impose a duty on federal agencies to revisit their past decisions in response to mitigation monitoring results. Finally, the draft guidance would require a significant expansion of the amount of information an agency collects and makes available to the public after it has made the decisions that actually triggered the NEPA process.

Given the widespread prevalence of NEPA litigation, each of the three aspects of this guidance is likely to become fodder for future litigation. Before it becomes final, however, CEQ will accept comments on the Draft Mitigation Guidance until May 24, 2010.

For more information on CEQ’s NEPA guidance or other NEPA issues, please contact Svend Brandt-Erichsen or any other member of Marten Law’s Permitting and Environmental Review practice.