Jon asked a great question about scoping..
To your bigger question (I think), would this meet the needs of scoping (for NEPA purposes) – isn’t the purpose of scoping to seek information about potential environmental impacts (so the agency can tell whether an EIS process is necessary)? I don’t see anything like that here.
I decided to search the statute, and could only find one “scoping”. It seems like the statute requires a report that asks when the agency started scoping for EAs and EIS’s.
So it is difficult to discern what parts of scoping are 1) in the statute, 2) in individual agency regulations (which probably recently changed due to the court case and actions thereafter), 3) part of case law? and 4) standard but non-regulatory cultural practices. A brief internet journey suggests that individual agencies vary quite a bit in what kinds of projects they scope, and how they go about doing it.
So what do our legal folks think about all this? It seems like the statute doesn’t mention it for CE’s, but it seems like a matter of convenience or practicality to do some kind of public outreach.
Those of you who remember the Decision Protocol effort, I thought part of that was that the FS needed a model for decision-making that wasn’t so NEPA regulation-dependent. In other words, the FS might want to take public comment on decisions that weren’t “NEPA” decisions.
Prior to Trump 2.0, scoping was a major part of NEPA implementation. Following the Trump order to the CEQ to rescind the regulatory framework for implementing NEPA that had existed since the advent of NEPA, the ‘scoping’ requirements in those regulations went away. See https://www.eli.org/vibrant-environment-blog/goodbye-public-participation for relevant commentary.
Chad, I don’t know how “major” it was, it was “a” part. I’d think that for EIS’s, the draft EIS itself is a major part. For EA’s similarly, the “draft EA.”. I’d argue that for CE’s, scoping with a detailed scoping notice would be best. I’d also argue that NEPA practices between BLM and the FS should be harmonized for better understanding and involvement by the public.
CEQ’s 1978 regulations were the culmination of 1970s court decisions interpreting NEPA, evolving agency practices and CEQ interpretations, and legislative action (and interaction). In the wake of NEPA’s enactment, most federal agencies did not treat the EIS requirement seriously, and proceeded to lose a string of cases, most notably the famous Calvert Cliffs case in 1972.
https://law.justia.com/cases/federal/appellate-courts/F2/449/1109/240994/
Spurred by this case and its own defeat in a case involving a dam in Arkansas, the Corps of Engineers implemented extensive public outreach resulting in a highly detailed EIS, which then survived judicial scrutiny. See
https://law.justia.com/cases/federal/appellate-courts/F2/470/289/111007/
at fn 10. You’ll recognize an incipient scoping process, even though the court does not use that word.
Developments like this fed into the 1978 CEQ regs, which sought to bring coherence to the myriad agency attempts to implement NEPA and the plethora of resulting cases. The scoping process codified in those regs emerged from this complex sequence of trial and error. The National Academies have since recognized scoping as a key component of effective public participation in environmental decisionmaking.
https://www.nationalacademies.org/publications/12434 at 39.
The new USDA NEPA rule makes scoping optional, arguing that NEPA does not specifically require it. 7 CFR § 1b.7(c).
https://www.ecfr.gov/current/title-7/subtitle-A/part-1b/section-1b.7
NEPA is a fairly short statute that imposes relatively few specific requirements on federal agencies. In the 1970s and 1980s courts generally interpreted environmental laws broadly to give effect to these laws’ remedial purposes. The current administration, and probably the current Supremes, generally interpret remedial statutes very narrowly, arguing that these laws impose, and authorize the imposition of, no requirements other than those specifically spelled out in the law. The USDA rule is in line with this latter approach.
Thus construed, NEPA implementation may eventually devolve into the empty box-checking exercise that it’s early liberal opponents such as Senator Muskie feared it would become. That said, it is unlikely we would even be in this fix if the country had a functioning legislature capable of comprehensively updating environmental laws passed in the days of the rotary phone.
Thanks much for this history, Rich J.! It’s so helpful to understand the history of where we are.
I wonder whether making scoping optional doesn’t mean “don’t do it”, but was intended to reduce the total number of legal hooks.
But how often do we see an agency do more than the minimum legally required – at least when the head of all the agencies is saying do it faster? This effectively means “don’t do it.”
Thanks for that refresher, Rich. What we often hear about NEPA is that it has “twin aims,” one for the decision-maker, and the other for the public. The Supreme Court’s take (1981) on the latter is, “The second aim is to inform the public that the agency has considered environmental concerns in its decisionmaking process.” Public participation in the decisionmaking process is not statutorily required, but has been found to be a way of helping meet that second “aim.”
And rightfully so – the less of an opportunity for public participation, the less credit the agency should get for a “hard look” at environmental effects. The Supreme Court has never been sympathetic to NEPA, but most cases don’t get to the Supreme Court and other courts could/should still view a “hard look” as important to NEPA sufficiency.
There’s also this idea from another early Supreme Court NEPA case (Vermont Yankee, 1979): “it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.” If agencies make it difficult for such members of the public to participate, a court is going to be lenient towards letting plaintiffs over the “exhaustion of administrative remedies” threshold. So more litigation.
This raises an interesting legal point: the cases that helped lay the groundwork for the 1978 CEQ regs are, for the most part, still there. Many of these are appellate decisions that bind courts in a particular circuit, but which may conflict (or at least not be entirely consistent) with decisions in other circuits. The CEQ regs gave judges everywhere a uniform place to start in interpreting NEPA; now that those regs are gone, people may need to refamiliarize themselves with the NEPA court decisions from the 1970s that CEQ had sought to harmonize. While they now seem to have disappeared, some of the 1978 reg provisions will continue to affect agency behavior to the extent they were based on previous and as yet unreversed appellate holdings.
A (perhaps) related point: In its new regs, CEQ points out that agencies are free, as a matter of discretion, to continue following the 1978 regs as nonbinding, nonenforceable guidance. It will be interesting to see how many agencies (and indeed how many project proponents) decide to stick with the devil they know rather than leap into the NEPA unknown, especially given the possibility that the next D administration will try to swiftly reverse at least some of the recent changes.
I have worked in the PNW as an agency employee on an IDT and as a private NEPA contractor, for both USFS and BLM. In my experience, a huge amount of practice related to the planning/analysis process (i.e., the NFMA/FLPMA-NEPA-APA-ESA complex) falls under the category of “standard but non-regulatory cultural practices.” But many of those cultural practices have been around so long that they feel regulatory.
One way that this happens and persists is in training. Unless they are actual planners, many new folks are trained to execute processes that are a syncretic mix of law, regulation, policy, and custom, without being told what is what. Over a not-too-long period of time, “we don’t normally do that” and “we normally do this” becomes “we can’t do that” and “we must do this.”
As an example of differing local customs, I have completed CEs under the same authority on the Olympic NF and on the Deschutes NF. One set of documents was essentially an EA, complete with 30-day scoping and six specialist reports, and the other was a two-page checklist stapled to a two-page memo (ok, they were PDFs – the stapling is metaphorical), no scoping.
This is one reason that contract NEPA is hard. It’s hard to buzz around the region and keep track of all the local idiosyncrasies. Presumably, though, some of the local cultural practices may originally have developed for good reasons.
And they are in the same reason.. see new post, it would be easier for employees, the public and (I added, thanks to your comment) contractors (and state and other partners) if procedures were more consistent.