navigating the nepa review process and lessons learned...

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Presenting a live 90-minute webinar with interactive Q&A

Navigating the NEPA Review Process and

Lessons Learned From Recent Litigation Best Practices for Counsel to Meet NEPA Requirements and Expedite Federal Agency Reviews

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, MAY 10, 2017

Matthew Adams, Partner, Dentons, San Francisco

James M. Auslander, Principal, Beveridge & Diamond, Washington, D.C.

Evan J. Preminger, Esq., Greenberg Traurig, New York

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G R E E N B E R G T R A U R I G , L L P | A T T O R N E Y S A T L A W | W W W . G T L A W . C O M

©2014 Greenberg Traurig, LLP. All rights reserved.

NEPA’s FAST Act and the

Trump Infrastructure Plan

Evan J. Preminger| premingere@gtlaw.com| 212-801-2189

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Fixing America’s Surface Transportation Act

(FAST Act)

> Signed into law on December 4, 2015.

> Provides funding for infrastructure projects.

> Title XLI streamlines rules for permitting and environmental reviews for projects under NEPA.

6

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

FAST Act, Title XLI

> Covered Projects

> Federal Permitting Improvement Council

> Interagency Cooperation and Coordination

> Judicial Review

7

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Covered Projects

> Projects related to energy production, broadband access, and other infrastructural improvements.

> Any projects that meet the following criteria:

– The project is already subject to NEPA and does not qualify for another abbreviated authorization or environmental review process; and

– The project either:

Will likely require a total investment of more than $200 million, or

Is large and complex enough that it is likely to benefit from enhanced oversight and coordination.

8

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Federal Permitting Improvement Council

Project Inventory

Facilitating Agency

Common Practices

9

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Interagency Cooperation and Coordination –

Coordinated Project Plan

Agency List Schedule

Public Participation

Alternatives &

Mitigation Measures

10

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

New Technology – Permitting Dashboard

11

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Interagency Cooperation and Coordination –

Federal Coordination

12

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Judicial Review

Statute of Limitations

Standing

Injunctive Relief

13

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Federal Permitting Improvement Steering Council

Richard Kidd IV, Deputy Assistant Secretary of the Army (Energy & Sustainability)

Appointed as Executive Director on July 8, 2016

14

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Federal Permitting Improvement Steering Council

Executive Directorship Currently Vacant

15

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Subsequent Steps taken by Agencies

9/22 - FPISC Releases Initial List of Covered Projects

34 Projects

9 Federal Agencies

16

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Subsequent Steps taken by Agencies

Forms, Guidance and FAQs

17

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Making Infrastructure Great Again?

18

NEPA’s FAST Act Greenberg Traurig, LLP | gtlaw.com

Thank You

Evan J. Preminger

Greenberg Traurig

MetLife Building

200 Park Avenue

New York, NY 10166

T +1 212.801.9200

premingere@gtlaw.com

19

NEPA Litigation Update

or: How I got comfortable with my NEPA document

Matthew Adams

Dentons US LLP

(415) 882-0351

matthew.adams@dentons.com

May 10, 2017

• Average annual volume of NEPA analyses prepared by

federal agencies:

• CE: >100,000

• EA: >12,500

• EIS: ~450-500

• Average annual volume of NEPA litigation filed: ~125

• Average number of injunctions/remands per year: ~40

May 10, 2017 21

The Big Picture

• Alternatives

• Climate

• Scope of project and/or analysis

• Incomplete information

• Agency-specific procedures

May 10, 2017 22

Common Litigation Issues

• Underlying requirements:

• EIS: "Rigorously explore and objectively evaluate all reasonable

alternatives" (40 CFR 1502.14)

• EA: Briefly discuss alternative courses of action (40 CFR 1508.9)

• CE: n/a

• Notable recent decisions:

• Alaska Survival v. Surface Transportation Board, 705 F.3d 1073 (9th

Cir. 2013): agency entitled to rely on project proponent's feasibility

assessment; "affirmative duty" to demonstrate viability of alternatives

• Japanese Village v. Federal Transit Administration, 843 F.3d 445 (9th

Cir. 2016): post-ROD admission re existence of feasible alternative not

sufficient to render EIS inadequate.

May 10, 2017 23

Alternatives

• Underlying requirements:

• General mandate to take a "hard look" at all reasonably foreseeable

direct, indirect, and cumulative impacts (42 USC 4332(2)(C): 40 CFR

1502.16, 1508.7, 1508.8, 1508.9)

• Specific CEQ guidance (withdrawn)

• Notable recent decisions:

• WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013):

Agencies not required to determine specific climate changes

attributable to proposed actions; analysis based on draft CEQ guidance

• WildEarth Guardians v. U.S. Forest Serv., 120 F. Supp. 3d 1237 (D.

Wyo. 2015): Project opponents cay establish standing by identifying

procedural violations related to climate change analysis.

• EarthReports v. FERC, 828 F.3d 949 (D.C. Cir. 2016): Agency properly

explained reasons for not using social cost of carbon analysis

May 10, 2017 24

Climate

• Underlying requirements:

• Closely-related proposals should be addressed in the same EIS (40

CFR 1502.4, 1508.25)

• Notable recent decisions:

• Sierra Club v. FERC, 827 F.3d 36 (D.C. Cir. 2015); EarthReports v.

FERC, 828 F.3d 949 (D.C. Cir. 2016): FERC not required to evaluate

all "but-for" effects of LNG export terminal because DOE has sole

authority to issue export licenses

• Sierra Club v. BLM, 786 F.3d 1219 (9th Cir. 2015): No segmentation

where wind farm (on private land) and right of way (on public land) had

independent utility

• Sierra Club v. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015):

Upholding Corps' decision to limit analysis to portions of pipeline

requiring Corps permitting; explicitly limited to facts of the case (<5% of

project within Corps jurisdiction)

May 10, 2017 25

Scope of Project and/or Analysis

• Underlying requirements:

• Lead agency must make good-faith effort to address all reasonably-

foreseeable impacts (whether or not "known") and explain the absence

of any missing information (40 CFR 1502.22, 1508.8)

• Notable recent decisions:

• Oregon Natural Desert Association v. Jewell, 840 F.3d 562 (9th Cir.

2016): Agency failed to identify baseline sage grouse populations;

extrapolation from surveys at other sites was arbitrary and capricious in

light of habitat differences; mitigation measures did not cure error.

• Western Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir. 2015):

Agency erred by failing to evaluate possibility of limits on grazing in

newly-designated National Monument

May 10, 2017 26

Incomplete Information

• Underlying requirements:

• Agencies must develop and maintain their own NEPA procedures

supplementing CEQ regulations; procedures must be approved by

CEQ (40 CFR 1507.3)

• Agency-specific procedures must address CEs (40 CFR 1508.4)

• Notable recent decisions:

• Center for Biological Diversity v. Zinke, 2017 U.S. Dist. Lexis 68002

(D.D.C. May 4, 2017): Granting motion to dismiss 706(1) claim alleging

DOI failure to update NEPA procedures in light of CEQ

recommendation to address Deepwater Horizon; no discrete mandatory

duty to revise agency-specific procedures.

• City of Phoenix v. FAA (D.C. Cir. Case No. 15-1247) (pending): Will

address enforceability of and extent of deference to NEPA procedures

memorialized in agency "orders" and "memoranda"

May 10, 2017 27

Agency-Specific Procedures

Thank you

Matthew Adams

Dentons US LLP

Spear Tower, 24th Floor

One Market Plaza

San Francisco, CA 94105-1101

United States

Dentons is the world's largest law firm, delivering quality and value to clients around the globe. Dentons is

a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by

prominent business and legal publications for its innovations in client service, including founding Nextlaw

Labs and the Nextlaw Global Referral Network. Dentons' polycentric approach and world-class talent

challenge the status quo to advance client interests in the communities in which we live and work.

www.dentons.com.

© 2017 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices.

Month Day, Year 28

Making NEPA Great Again Strafford CLE Seminar

James M. Auslander

Beveridge & Diamond, P.C.

(202) 789-6009

jauslander@bdlaw.com

May 11, 2017

NEPA at a Glance

• Basic NEPA Goals:

− Environmentally informed decisions – “Policy” not Protection

− Public transparency

− No surprises/no regrets

− Not gigantic documents or massive delays

• NEPA does not require adoption of least environmentally harmful alternative

− But other statutes might

− Recent guidance on mitigation might as well

30

Modern NEPA Hurdles

• Hard look” can be herculean

• Common roadblocks:

− Failure by lead and resource agencies to act timely

− Adversarial agencies with overlapping jurisdiction pursuing different agendas

− Lack of federal/state coordination

− Duplication of effort

− Strategically timed litigation by project opponents

• Not uncommon for project to consume thousands of pages of analysis and over a decade

31

DE--FENSE!!

• Though a procedural statute, NEPA remains a favorite tool for project opponents

• Claims brought under Administrative Procedure Act

• Usually resolved on summary judgment

• Claims generally involve:

− Level of NEPA review

− Factors considered

− Scope of action/analysis

32

We Have Been at Work on Improving NEPA Reviews for Awhile…

• Energy Policy Act of 2005 Pilot Projects

• President Bush Executive Order 13274 (Sept. 18, 2002)

• Section 6002 of SAFETEA-LU (2005)

• ARRA stimulus (2009)

• DOT/CEQ NEPA 40th anniversary guidance (2010-11)

• CEQ NEPA Pilot Program (March 2011)

• Presidential Memo on high-priority projects (Aug. 31, 2011)

• President Obama Executive Order 13604 “Improving Performance of Federal Permitting and Review of Infrastructure Projects (March 22, 2012)”

• CEQ guidance on NEPA efficiency (March 2012)

• MAP-21 (2012)

• Presidential Memo “Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures” (2013)

• Implementation Plan for 2013 Pres Memo (2014)

• FAST Act (2015)

33

Key NEPA Streamlining Concepts

• New Categorical Exclusions

• Integration of planning and NEPA

• Concurrent, not consecutive, reviews

• Deadlines and penalties

• Abbreviated FEIS, and combination of FEIS and ROD

• Early interagency consultation and dispute resolution

• Greater role available to states

• Alternatives to project-by-project review

• Expedited and reduced litigation

• Accountability (including Dashboards)

34

The Latest and “Greatest”

• Executive Order “Expediting Environmental Reviews and Approvals for High-Priority Infrastructure Projects” (1/24/2017)

• Executive Order “Promoting Energy Independence and Economic Growth (3/28/2017)

• “Yuge” New Infrastructure Bill?

35

GHGs: A Newer Game in NEPA

• Past: Projects fighting against performing any meaningful GHG analysis.

• Now: Projects must fight to define and win the GHG component of the project.

36

NEPA Assignment

37

Don’t Lose It, Reuse It!

• Adoption/Incorporation by Reference

• Tiering

38

Other Challenges/Opportunities

• Defining scope of project to avoid issues of segmentation and cumulative impacts

• Setting of and adherence to deadlines

• Coping with fewer agency staff and resources, including use of third parties

• NEPA compliance for deregulatory actions

• P3s, including defining relationship of federal and non-federal components

39

Best Practices for NEPA

• Recall NEPA requires agencies to “stop and think,” not any specific outcome or more paper

• Affirmatively build a robust administrative record

• Each NEPA analysis is project/plan-specific, but need not consider in a vacuum—utilize existing analyses

• Acknowledge and resolve issues and information gaps, rather than ignoring or hiding them

• Continue to follow and encourage agency efforts to streamline efforts and involve applicant expertise

40

This presentation is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your

circumstances. This presentation may be considered lawyer advertising under applicable laws regarding electronic communications.

Questions?

James M. Auslander

Shareholder

Washington D.C.

jauslander@bdlaw.com, (202) 789-6009

Beveridge & Diamond, P.C.

41