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CEQ Finalizes New NEPA Mitigation Guidance

Beveridge & Diamond, P.C., January 20, 2011

On January 14, 2011, the White House Council on Environmental Quality (“CEQ”) finalized guidance entitled “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact.”  The guidance is intended to make federal agencies more accountable for mitigation measures that they identify in conducting National Environmental Policy Act (“NEPA”) reviews of proposed actions.  CEQ issued draft guidance on this topic in February 2010 as part of its modernization of NEPA practices in conjunction with NEPA’s 40th anniversary.  See http://www.bdlaw.com/news-811.html.  The restructured final CEQ guidance expands upon, but overall is consistent with, the earlier draft guidance. 

Purpose and Need for the Guidance

Federal agencies, or their cooperating partner agencies, often promise to implement mitigation measures, or, beyond that, represent that such mitigation will successfully reduce otherwise significant impacts to insignificant levels.  Perceiving a shortfall in agencies’ efforts to ensure such mitigation becomes a reality, CEQ aims to improve agencies’ accountability for mitigation commitments made during NEPA reviews.  The final guidance places mitigation commitments under the microscope and calls for them to be explicit, clear, verified, and transparent.  The central message of the guidance is that “[a]gencies should not commit to mitigation measures considered in an EIS [Environmental Impact Statement] or EA [Environmental Assessment] absent the authority or expectation of resources to ensure that the mitigation is performed.”

Key Features Of The New Mitigation Guidance

The guidance at the outset reaffirms the importance of mitigation in several contexts, including as a component of project design (e.g., best management practices for stormwater) or in the alternatives analysis in a NEPA review document.  Importantly, CEQ also validates the use of a “mitigated Finding of No Significant Impact” following an EA.  With a “mitigated FONSI,” agencies may rely on mitigation to reduce a proposal’s environmental effects and avoid preparation of a more detailed EIS.  However, CEQ cautions that such mitigation must be “enforceable.”

CEQ seeks better implementation of mitigation commitments by making them express, measurable, and viable.  According to CEQ, NEPA and decision documents should “carefully specif[y]” any relied-upon mitigation “in terms of measurable performance standards or expected results, so as to establish clear performance expectations.”  CEQ also asks agencies to disclose and assess potential funding shortfalls upfront in the NEPA analysis and explore adaptive management or specific mitigation alternatives if the selected mitigation does not succeed.

The final guidance stresses a need for creation and disclosure of ongoing mitigation monitoring plans for any agency decision relying on an EIS and for “important” cases relying on an EA/FONSI.  Two separate types of monitoring are discussed.  Implementation monitoring determines whether mitigation commitments are being performed.  Effectiveness monitoring evaluates whether the implemented mitigation is successful.  In gauging mitigation effectiveness, the final guidance calls for a baseline analysis of resource conditions before project implementation and sanctions reliance on outside experts and information sources.  CEQ defers to individual agency discretion to select the form and method of monitoring, but notes that the selected monitoring method should be incorporated in the agency decision documents and should include a system for reporting results to the public.

The guidance highlights transparency and public involvement in mitigation development and monitoring.  CEQ encourages affirmative disclosure of mitigation and monitoring information, particularly via the Internet.  Agencies may balance competing confidentiality or privacy concerns, but CEQ opines that environmental monitoring results are rarely considered confidential information.

Consequences Of Mitigation Failure

Finally, CEQ speaks to the consequences of non-implementation or ineffectiveness of mitigation.  The appropriate steps to correct such failures depend on the existence of any remaining federal action and any alternative mitigation opportunities.  Where no federal action remains, the failure should inform future baselines and NEPA analyses.  In other cases, while imposing no hard and fast requirement to restart the NEPA process, CEQ suggests that supplemental NEPA analysis, agency remedial actions to enforce any permit conditions, or securing other funding (or assessing a lack of funding) may be appropriate for the proposed project to proceed.

Implications and Next Steps

The full import of these new guidelines remains to be seen.  CEQ’s responses to public comments note that the guidance adds no new substantive requirements and is not legally enforceable; yet, compared to the primarily “procedural” elements of NEPA review, the guidance has a distinctly “substantive” focus on the ultimate achievement of mitigation commitments. 

CEQ calls for agencies to revise their own NEPA regulations and guidance accordingly and, where applicable, to utilize underlying legal authorities to enforce mitigation as conditions of funding, permitting, or other approvals.  CEQ also states that “enforcement clauses, including penalty clauses, should be developed as allowable under the applicable statutory and regulatory authorities.”  And, from a practical perspective, it is unclear what effect stressed agency budgets may have on the performance of planned mitigation or the viability of projects incorporating such mitigation measures.   

Resources And Other NEPA Developments Of Interest

A link to the final CEQ mitigation guidance can be found here

For more information on these mitigation guidelines or their implications for a specific project, please contact James Auslander at (202) 789-6009, jauslander@bdlaw.com or Gus Bauman at (202) 789-6013, gbauman@bdlaw.com.

The release of CEQ’s mitigation guidance was not the only NEPA item of interest on January 14.  In Pasadena, California, the U.S. Court of Appeals for the Ninth Circuit abandoned its so-called “federal defendant rule,” which had barred private parties from intervening as of right on the government’s side in NEPA cases.  A copy of that decision may be found here.  An analysis of that decision can be found here.  In addition, the U.S. Environmental Protection Agency (“EPA”) has sought to modernize its administrative process for submission and management of EISs.  EPA has also solicited public comments on future updates of its EIS filing system.  A copy of EPA’s Federal Register Notice can be found here.  Please contact us with any questions regarding these or other NEPA developments.

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