1. Ron Bass, J.D., AICP, Senior Regulatory Specialist Jones & Stokes Common NEPA Mistakes and How to Avoid Them January 17, 2008 Oregon Department of Transportation

2. Workshop Objectives Review some of the most common mistakes that federal agencies make in implementing NEPA Discuss how federal agencies can avoid such mistakes Review how the courts have interpreted NEPA relating to these areas of practice

3. Common NEPA Mistakes Forgetting NEPAs Fundamental Purpose Why NEPA was necessary NEPAs objectives NEPAs policy language How NEPA differs from other laws

4. Common NEPA Mistakes Misunderstanding the Roles that Agencies Play in the NEPA Process Also Participating Agencies under (SAFETEA-LU)

5. Common NEPA Mistakes Failure to Understand and Adhere to NEPAs Procedural Process

6. Common NEPA Mistakes Improperly Defining the Proposed Action Segmenting a proposed action into parts to avoid or minimize NEPA review and evaluation Failure to account for related, and connected actions

7. Common NEPA Mistakes Misuse of Categorical Exclusions Use of so-called mitigated categorical exclusions Stretching categorical exclusions beyond what was intended Failure to consider extraordinary circumstances Failure to document the CATEX Failure to complete consultations under other laws

8. Common NEPA Mistakes Pre-determining That an EIS Will Not be Necessary, Then Trying to Justify Such Conclusion After-the-Fact No way we need an EIS for this project….! FONSI

9. Common NEPA Mistake Improper use of Environmental Assessments Forgetting the purposes of an EA Provide sufficient evidence to determine whether or not an EIS required Supporting the decision to prepare a FONSI Facilitate preparation of EIS when required Using the EA as a surrogate for an EIS

10. Common NEPA Mistakes Failure to Explain and Support Conclusions in an EA Failure to use and/or explain the context and intensity criteria that define significance Failure to rely on established thresholds to determinesignificance or non-significance Failure to take a HARD LOOK at the environmental impacts of a proposed action

11. Common NEPA Mistakes Inadequate Scoping Insufficient public involvement Failure to listen to peoples suggestions

12. Common NEPA Mistakes Inadequate Agency Consultation Failure to consult with cooperating and other agencies Failure to heed the advice and comments of cooperating and other agencies Failure to properly document the consultation

13. Common NEPA Mistakes Failure to Build the Administrative Law Pyramid FONSI does not provide reasons FONSI not supported by EA EA lacks data, analysis, explanations

14. Common NEPA Mistakes Insufficient and Inconsistent Public Notice and Review EA/FONSI

15. Common NEPA Mistakes Inadequate Tiering

16. Common NEPA Mistakes Improper Statement of Purpose and Need Failure to explain the underlying reason why the action is being proposed Failure to support the purpose and need with substantial evidence

17. Common NEPA Mistakes Misunderstanding Alternatives Uncertainty about when alternatives must be evaluated in an EA Inadequate range of alternatives Alternative does not satisfy Purpose and Need Alternative does not avoid any impacts Alternative not feasible Eliminated alternatives not explained

18. Common NEPA Mistakes Using an improper baseline for impact analysis

19. Common NEPA Mistakes Inadequate Impact Analysis Failure to consider foreseeable indirect effects Bad data/ old data/ no data Improper methodology Failure to show your work Data not properly incorporated by reference

20. Common NEPA Mistakes Improper Evaluation of Induced-Growth

21. Common NEPA Mistakes Inadequate Evaluation of Cumulative Impacts Accounting for impacts of past projects Predicting reasonably foreseeable future projects Determining a projects contribution to the cumulative impact

22. Likely to Become a Common NEPA Mistake Inadequate evaluation of Greenhouse Gases and their effects on Global Climate Change

23. Common NEPA Mistakes Inadequate Evaluation of Environmental Justice Failure to determine disproportionate impacts of low- income and minority populations Inadequate documentation of analysis methods Inadequate outreach to low-income and minority communities

24. Common NEPA Mistakes Inadequate Mitigation Measures (particularly to support a FONSI) Mitigation measures do not meet NEPA definition Mitigation measures are not specific Mitigation measures are deferred to the future

25. Common NEPA Mistakes Failure to Integrate Other Laws with NEPA Ignorance of other legal requirements Lack of an environmental compliance strategy Inadequate or late consultation Not listening to other agencies Misunderstanding the differences between NEPA and other analysis requirements

26. Common NEPA Mistakes Inadequate Administrative Record Misunderstanding the concept and importance of the AR Failure to save everything supporting a decision Failure to save as you go

27. Common NEPA Mistakes Doing Too Little or Too Much Bare legal minimumThe federal agency does as little analysis as possible to satisfy NEPAs legal requirements (i.e., it creates a document that meets the letter of the law). Good practiceThe federal agency attempts to fully integrate NEPA into its decision process, focusing on issues that are important to the decision process and relevant to the potential environmental effects of the proposed action, and carries out the law in ways that best meet NEPAs objectives (i.e. it creates a document that meets the spirit of the law). OverkillThe federal agency studies everything it can, in as much detail as possible, often under the belief that this will ward off legal challenges (i.e., it creates a bulletproof document).

28. Common NEPA Mistakes Failure to Evaluate the Risks of Non-Compliance

29. ……And, finally, dont just comply with the letter of the law, but also the SPIRIT OF NEPA