The Role of the Project Proponent in the NEPA Process PUBLIC LANDS ADVOCACY NEPA & PERMITTING SEMINAR Zeke Williams June 11, 2008

Faegre & Benson LLP NEPA & Private Applicants Federal action trigger Private proposals –Permits –Leases –Authorizations –Decisions

Faegre & Benson LLP Federal Oil and Gas Lease & Development

Faegre & Benson LLP Corps of Engineers 404 Permit

Faegre & Benson LLP Natural Gas Pipeline on Federal Lands

Faegre & Benson LLP BLM Resource Management Plan

Faegre & Benson LLP MMS Permits & Approvals for Offshore Oil & Gas Development

Faegre & Benson LLP Ski Area on National Forest System Lands

Questions & Issues

Faegre & Benson LLP Proposed Action Federal proposals vs. private proposals Proposal contents –Specific technical information –Objectives –Goals –Agency statutes, regulations and policies –Relationship to purpose and need

Faegre & Benson LLP Purpose & Need Agency’s goals and objectives Defines range of reasonable alternatives Agency objectives vs. proponent objectives Majority rule 7 th Circuit rule

Faegre & Benson LLP Alternatives Agency’s obligation Relationship to proposal Proponent’s role

Faegre & Benson LLP Comments & Responses Agency required to request comments from the applicant Value of public comments to proponent Response to comments by proponent Agency review

Faegre & Benson LLP Meetings With the Agency Can the applicant meet with the agency? Open exchange of information Agency independence Administrative record Federal Advisory Committee Act

Third Party NEPA Contracts

Faegre & Benson LLP Third Party NEPA Contracts - Overview Contractor prepares EIS or EA Contractor works for agency Proponent funds work Agency independently evaluates work Voluntary Benefits

Faegre & Benson LLP Selecting the Contractor Agency selects contractor for an EIS Proponent’s role –solicit candidates –recommend a contractor –document that agency makes decision EA –Proponent selects contractor –Agency independently evaluates EA

Faegre & Benson LLP The Contract Between contractor and proponent No required form Recite elements of 40 CFR –Contractor works for the agency –Agency will independently evaluate the contractor’s work –Proponent will fund the work Agency/applicant MOU Administrative record

Faegre & Benson LLP Conflicts of Interest Potential for conflicts Disclosure statement for EIS “No financial or other interest in the outcome of the project” –40 CFR EA Poor guidance on issue Caselaw

Faegre & Benson LLP “A contractor with an agreement, enforceable promise or guarantee of future work has a conflict of interest.” –Associations Working for Aurora’s Residential Environ. v. Colorado Dep’t of Transp., 153 F.3d 1122, 1128 (10 th Cir. 1998)

Faegre & Benson LLP Conflict of Interest Caselaw Focus on the integrity and objectivity of the NEPA process Agency oversight and independent evaluation overcomes alleged defects Prior work for the proponent “Heightened expectations” of future work Bidding on future work “Guaranteed outcome”

NEPA Litigation

Faegre & Benson LLP Three Roles for the Proponent in NEPA Litigation Department of Justice Defends the Agency Participate as Amicus Intervene as Party Defendant

Faegre & Benson LLP Proponent as Amicus in NEPA Litigation By permission of the Court File a brief Limitations –not a party –no right to be heard –no appeal rights –no seat at settlement table

Faegre & Benson LLP Proponent as Intervenor Defendant Intervention as of Right Rule 24(a)(2) Legal right to intervene Timely Protectable Interest Impairment Inadequate representation Permissive Intervention Rule 24(b)(2) Discretionary Timely Common questions No undue delay or prejudice

Faegre & Benson LLP Effect of Intervention in a NEPA Case Proponent is a party to litigation Proponent files briefs, motions, etc. Proponent can defend an injunction Proponent participates in settlement negotiations Appeal rights

Faegre & Benson LLP NEPA Intervention Issues Adequacy of representation Prudential standing under APA Intervention as of right –10 th, 5 th, and 3 rd Circuits –9 th and 7 th Circuits Permissive intervention

Zeke Williams