FOIA and NEPA Federal Highway Administration Environmental Conference June 2006

FOIA and NEPA In , the TVA built Fontana Dam, creating Fontana Lake, in western North Carolina. When TVA built the dam, they entered into an agreement with the State to build a road around the North Shore of the Lake. A South Shore route was constructed, but the North Shore road was never built.

FOIA and NEPA The land to the north of the lake was added to the Great Smoky Mountains National Park – and the promise of the road was transferred to the Department of the Interior. The Park Service tried to build the North Shore Road in the 1970’s, but ran into a problem – Anakeesta rock, which contains sulfur. When exposed to air and water, the sulfur becomes sulfuric acid – very damaging to the environment!

FOIA and NEPA New techniques allow road-builders to encapsulate Anakeesta rock, and many people would like the Federal Government to try again to provide the promised road. Others say the road is no longer necessary, and would be environmentally damaging to the Park.

FOIA and NEPA The FHWA was tasked by Congress with taking on the Project under its Federal Lands Highway Program. For the last few years, they have been preparing an Environmental Impact Statement to address the potential issues and alternatives.

FOIA and NEPA In October 2005, the FHWA received a FOIA request for the draft DEIS – a Draft Environmental Impact Statement and supporting data - that was still being prepared. The public had been informed on a Federal website that release of the DEIS was expected in December 2005.

FOIA and NEPA What happens when you get a FOIA request for documents being developed under the NEPA process? - confusion! FOIA only requires release of final documents NEPA – which refers to FOIA - requires a controlled release of draft documents

FOIA and NEPA NEPA – the National Environmental Policy Act - requires Federal agencies to consider the potential impacts on the human and natural environment of any proposed major actions – including construction of a new road.

FOIA and NEPA NEPA reviews may result in: 1. a CE or CatEx – a Categorical Exclusion – a determination by the Agency that any impacts will be minimal or minor. A CE may be done under 23 CFR for pre-determined categories of work – such as construction of bike trails.

FOIA and NEPA NEPA reviews may result in: 2. The development of an Environmental Assessment (EA) to determine if there might be significant impacts. If it is determined there will not be, the Agency then prepares a FONSI – a Finding of No Significant Impact.

FOIA and NEPA NEPA reviews may result in: 3. A decision that there may be – or will be – significant environmental impacts. In that case the Agency should prepare an EIS – an Environmental Impact Statement.

FOIA and NEPA 3. (cont.) The steps for preparing an EIS are – a. Preparation of a Draft EIS – or DEIS – which is then published for comment by the public. During the preparation of the DEIS, the Agency confers with other Agencies that may have statutory or regulatory interest in the project – such as the FWS for endangered species.

FOIA and NEPA 3. (cont.) b. Preparation of a Final EIS based on the comments received. The FEIS is also be published for comment. c. Preparation of a ROD – Record of Decision – which is the Agency’s final decision document.

FOIA and NEPA What does FOIA – the Freedom of Information Act (5 USC 552) require? It is an Act that requires Agencies to make information available to the public. 5 USC 552 (a)(1) covers general information about the Agency and Agency procedures that have to be published in the Federal Register.

FOIA and NEPA 5 USC 522(a)(2) states: “Each agency, in accordance with published rules, shall make available for public inspection and copying-- … those statements of policy and interpretations which have been adopted by the agency …” Under NEPA, this would refer only to a CE, FONSI, or ROD.

FOIA and NEPA 5 USC 552 (a)(3) states: Except with respect to the records made available under paragraphs (1) and (2) of this subsection, …each agency, upon any request for records which reasonably describes such records … shall make the records promptly available to any person.

FOIA and NEPA 5 USC 552(b) states: This section does not apply to matters that are– … (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency … The (b)(5) exemption has been interpreted by the Agencies and the Courts to include drafts of documents.

FOIA and NEPA NEPA (42 USC 4332) states: The Congress authorizes and directs that … all agencies of the Federal Government shall-- … (C) include in every recommendation or report on proposals for … major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-- (i) the environmental impact of the proposed action.

FOIA and NEPA 42 USC 4332 (cont.) Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies … shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, and shall accompany the proposal through the existing agency review processes …

FOIA and NEPA So - 42 USC 4332 refers to releasing an environmental impact statement to the public for comment before it is adopted. 5 USC 552 says that draft documents may be protected under Exemption (b)(5). But 42 USC 4332 refers to 5 USC 552!

FOIA and NEPA Fortunately - the Council on Environmental Quality (CEQ) has issued implementing regulations for NEPA at 40 Code of Federal Regulations, Parts

FOIA and NEPA 40 CFR , states: (a) After preparing a draft environmental impact statement and before preparing a final environmental impact statement the agency shall: … (4) Request comments from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected.

FOIA and NEPA The CEQ regs, at 40 CFR state: (f) Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action.

FOIA and NEPA Our interpretation was that the Agency may continue to withhold under (b)(5) a DEIS that is in the process of being prepared. We also decided that this covered any supporting documents that would suggest the proposed findings of the DEIS.

FOIA and NEPA Why would someone want the DEIS before it is released to the public? Because it gives them more time than the general public to review the DEIS and prepare their comments. It was our determination that the Courts would not approve uneven access by the public to NEPA documents.

FOIA and NEPA There is also a concern that pre-release would be a violation of FACA – the Federal Advisory Committee Act – allowing the requester by their premature comments to influence a Federal decision-making process inappropriately.

FOIA and NEPA Once the DEIS was published in January 2006, the majority of the referenced and supporting documentation was also released. We continue to withhold at this time certain underlying documents – such as consultants extrapolations of selected field data that have not been verified - and thereby remain “draft” until verified. Verified data will be released with the ROD.

FOIA and NEPA We are also continuing to withhold documents that identify sites that require Federal protection – such as wetlands and archeological sites. Their exact location is not revealed to the public. FOIA refers to “geological and geophysical information and data, including maps, concerning wells.” as protected under (b)(9).

FOIA and NEPA Will the North Shore Road be built? That is still to be decided. But, in the meantime, the process continues as required by law.