I’d like to thank Susan Jane Brown, Anonymous, and others for engaging deeply and thoughtfully on the proposed NEPA regs. They’ve brought up many good points, which I’m going to try to separate into different threads. This one is about scoping. I’m hoping we can all get on the same page about what is required by the current scoping, and what practices are actually used.
One of the main talking points against the proposed reg is reducing public involvement. So we can look into exactly what happens now, and how that might change. I found this helpful information in the Forest Service (2012) NEPA Handbook. Note: my understanding of why the Forest Service developed their own NEPA regs in 2008 was so that they would have more legal oomph. The Forest Service’s sister agency in multiple use, the BLM, does not have NEPA regs but operates from a Handbook.
Here’s what the Handbook says about scoping:
Although the Council on Environmental Quality (CEQ) regulations require scoping only for environmental impact statement (EIS) preparation, the Forest Service has broadened the concept to apply to all proposed actions. Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS (§220.6). (36 CFR 220.4(e)(1))
A reasonable argument could be made that (all) other agencies scope without it being a requirement. Agencies like the BLM, for example. So the idea that the Forest Service would never scope without the requirement seems, to me, to be unlikely. Why did the Forest Service decide to do this when no other agencies do? Maybe someone out there knows that history and would share their knowledge.
So what does the scoping requirement require exactly? Here’s what the Handbook says:
The process of scoping is an integral part of environmental analysis. Scoping includes refining the proposed action, determining the responsible official and lead and cooperating agencies, identifying preliminary issues, and identifying interested and affected persons. Effective scoping depends on all of the above as well as presenting a coherent proposal. The results of scoping are used to clarify public involvement methods, refine issues, select an interdisciplinary team, establish analysis criteria, and explore possible alternatives and their probable environmental effects.
The methods and degree of the scoping effort undertaken for a given project vary depending on scope and complexity of the project (see the CEQ scoping guidance).
Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7. Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed. (36 CFR 220.4(e)(2))Selection of scoping techniques should consider appropriate methods to reach interested and affected parties. For example, a project with potential localized effects to a small community might consider posting fliers at locations where they are likely to be seen.
This is all very interesting, as when CEQ talks about scoping, they are not thinking about the Forest Service, but are thinking about EIS’s, so it is the first step of a very long and complicated process with lots of requirements (doing an EIS).
At the same time, there don’t seem to be any specific requirements in the Handbook, other than “no single scoping technique is required or prescribed.” If it is “use your common sense” then what difference does it make to have the requirement? Note: I could argue this either way, if there’s a requirement to “use your common sense” versus just “using your common sense.”
(1) I could argue that having the requirement is suitably innocuous, so why get rid of it? How many court cases have there been about scoping? (I have no idea). The other point of view would be “why have an extra requirement that no other agency has?”. I couldn’t tell what the rationale was from the discussion on page 27545 of the proposed Rule, so we can only assume that it was to simplify the requirements. While this has been portrayed by some as being about “more logging” there are many CE’s that are much less likely to cause concern (and some, like the oil and gas one that we seldom hear about in op-eds) that might cause more concern.
(2) Given that, one could have another alternative in which scoping could be kept for some subset of CE’s, especially the new restoration CE (26) since the 3000 acre legislative CE’s require collaboration.
(3) It seems to me that there are solutions that could actually be better than just scoping. It seems like the idea of putting a project on the SOPA, with a name to submit comments to is seen to be not enough, but I think it may be just right for something like “shoulder widening or other safety improvements within the right-of-way for an NFS road.” But maybe the whole SOPA could be made more user-friendly. For example, people might fill out a form so that they could be notified of all projects and an email sent to them. And it might be handy for regional or national groups for this to be made so that they could sign up for all the relevant forests. We discussed these kinds of things about 15 years or so ago when the E-gov initiative was going on and the PALS database developed. It makes sense to me that notification and commenting could be streamlined and that responsibility for giving input could be shared somehow between the agency and interested parties.
I like the idea of a more user-friendly SOPA list with automated emails to anyone who signs up for them. I’d sign up for the list for my local forest. OTOH, interest groups of all stripes often monitor SOPA lists for projects they may have an interest in, and most of them pass along info about significant projects to their members and stakeholders.
Yes, interest groups check it out, but perhaps SOPAs are not as user-friendly as they could be.
We could imagine an app individuals from the public could outline what physical areas they are interested in (like Zillow), in addition to kinds of projects, in addition to FS units, and be set up for email notification. Maybe it’s time for Egov 2.0.
If, say, The Mapped SOPA were integrated with ongoing (not just proposed) projects, you could perhaps also see on your phone map icons for all ongoing projects as well and hover over it and see some of the details. Maybe the FS could cooperate on that Proposed and Current Project App with Interior agencies. And maybe another icon for Past Projects with links to monitoring.. but I digress.
Not sure this will help, but federal agencies are required by CEQ regulations to INVOLVE THE PUBLIC in preparing an EA, a point that doesn’t get much attention. Scoping and public involvement are related, often overlapping, NEPA requirements, and an EIS has related, often overlapping requirements for public involvement and scoping. But here’s the key:
In the CEQ regs, Scoping isn’t embedded within the discussion and requirements related to an EIS, nor is public involvement. Scoping is part of the discussion of agency planning (1501) that includes discussion of when to prepare an EA, EIS requirements are all of 1502, and public involvement is discussed as one of the other requirements of NEPA (1506).
I’ve always wondered about public involvement and EA’s because there seem to be wide ranging opinions and perhaps some urban myths. The CEQ regulations require federal agencies to–the language is SHALL–INVOLVE THE PUBLIC IN PREPARING AN EA, although qualified with “to the extent practicable.” Maybe an issue for discussion is about scoping and public involvement and the degree to which those are distinct and not, as well as the role of scoping in framing an agency decision (my point being that the functional equivalent of scoping happens as part of every agency decision whether we call it that or not).
Encouraging special attention to the last sentence, here’s what the CEQ regulations say (applicable to all federal agencies):
40 CFR §1501.4 Whether to prepare an environmental impact statement.
In determining whether to prepare an environmental impact statement the Federal agency shall:
(a) Determine under its procedures supplementing these regulations (described in §1507.3) whether the proposal is one which:
(1) Normally requires an environmental impact statement, or
(2) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).
(b) If the proposed action is not covered by paragraph (a) of this section, prepare an environmental assessment (§1508.9). The agency shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by §1508.9(a)(1) [which defines an EA].
Peter, that was what was a bit confusing to me as well, exactly what you said, “Maybe an issue for discussion is about scoping and public involvement and the degree to which those are distinct and not, as well as the role of scoping in framing an agency decision (my point being that the functional equivalent of scoping happens as part of every agency decision whether we call it that or not).”
Seems like scoping is “figuring out what you generally want to do, who will cooperate and who cares about it.”
When I looked over the different requirements in the FS Handbook.
“Scoping includes (1) refining the proposed action, (2) determining the responsible official and lead and cooperating agencies, (3) identifying preliminary issues, and (4) identifying interested and affected persons.”
I added the numbers for clarification. Let’s take some examples..”installing or reconstructing water or waste disposal system” 22(iii)
Seems like scoping would occur in your brain or on paper, with or without a requirement, as you said.
Maybe the “real” question is not about scoping at all, but about “what is the desired level of public notification and involvement for different kinds of projects?”
With the advent of e-everything, notification and commenting could/should be relatively low cost, except for reading the comments.
Yes, I think that’s spot-on. The question seems beyond scoping and more about public involvement, engagement, collaboration, whatever we might want to call it.
And I’d add this: there seem to be two NEPA compliance objectives that are too often seen as in tension when, in actuality, those could be brought together in a much more constructive way, perhaps through a collaborative process (shameless plug).
Objective one is to “armor” a decision legally to avoid losing in court; objective two is to reach a better decision. Somewhere in there, too, are objectives regarding the amount of time, thus cost, of the process, objectives related to efficiency that I’m reducing just to make a point.
Public involvement, perhaps especially collaborative approaches, has been seen as costing time; yet, Congress and CEQ, back in the day as NEPA and the first regulations were drafted, saw public involvement as an essential means to the end of better decisions. My favorite lines in the CEQ regulations are these:
“Ultimately, of course, it is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork–even excellent paperwork–but to foster excellent action.” (1500.1(c))
Sharon, going back to your question about the desired level of public notification and involvement, perhaps we also might ask “towards what end?” If the end goal is to avoid LOSING in court, that would suggest one approach; if the goal is to avoid GOING to court, that might suggest another; and, if the goal is to reach better decisions, that might suggest still another.
As a relevant aside, I’ve always argued there are three ways for the wheels to come off any large decision process. One is you end up losing in court; one is you get rolled politically; one is you end up with a decision you can’t implement.
I mention that because maybe we might link our thinking about public involvement and scoping to those three issues (legal vulnerability, which tends to mean procedural violations; political vulnerability, which tends to relate to controversy and power; and feasibility, which tends to relate to agency capacity and the willingness of others to help). It would seem that reducing public involvement and narrowing what we mean by scoping runs the risk of greater legal vulnerability, more political vulnerability, and greater cost because feasibility ends up being defined by what an agency can do alone, rather than with partners who lost interest in helping.
And, yes, I realize that changes to CEQ regulations and agency implementing regulations are in the wind as well and could moot much here.
To further confuse things I read the CFR instead of just the Handbook…
https://www.law.cornell.edu/cfr/text/36/220.4
“(e)Scoping (40 CFR 1501.7).
“(1) Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS (§ 220.6).
(2) Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7. Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed.
(3) The SOPA shall not to be used as the sole scoping mechanism for a proposed action.”
So it would appear that the new regs just say you can just use the SOPA. Which to me (using only the SOPA) fits some, but not all of , the categories in the new reg. A minimalist could follow the old regs apparently by doing anything in addition to the SOPA.
If we think about it that way, requiring scoping is neither necessary nor sufficient for appropriate public involvement, but not requiring it looks bad.
Two things that I don’t think have been mentioned yet.
The purpose of scoping (added to the CEQ regulations in 1978) was to make the NEPA process more efficient. It is included in §1500.4 “Reducing paperwork” to “deemphasize insignificant issues, narrowing the scope of the environmental impact statement process accordingly.” The Forest Service should have a heavy burden of proof to argue the opposite. (I think in this context the phrase “environmental impact statement process” must be read broadly to include the process of determining if an EIS is necessary, which includes CEs.)
Also, the introductory language of §1501.7 is not limited to EISs. It is for identifying significant issues related to a “proposed action.” That’s why the current language says that if the agency “determines, based on scoping, that it is uncertain whether the proposed action may have a significant effect on the environment,” the agency must “prepare an EA.” (§ 220.6(c)).
But I agree that this doesn’t fully answer the important question of how much public participation should be included in scoping for a particular project.