worldwide chinfo conference 2009 – environmental law for the pao environmental law and planning...

Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO

Environmental Law and Planning Environmental Law and Planning for the Public Affairs Professionalfor the Public Affairs ProfessionalEnvironmental Law and Planning Environmental Law and Planning for the Public Affairs Professionalfor the Public Affairs Professional


Pam Ellen Hudson, Esq.

Asst. Counsel (Environment) Civil Engineer Corps Officers School (CECOS)

[email protected]

Register for classes at:

https://www.netc.navy.mil/centers/csfe/cecos


Objectives!

Understand why NEPA was enacted ( in order to empower public affairs personnel to foster transparency on environmental issues)

Learn the goals of NEPA and what happens if the DoN does not comply (so you can promote partnerships “beyond the fenceline”)

Understand the overarching NEPA and EO 12114 Framework (so you can engage the workforce on environmental stewardship matters)


Environmental Public Affairs Support

A bottlenose dolphin leaps out of the water while training near USS Gunston Hall (LSD 44) in the Arabian Gulf during Operation Iraqi Freedom. It is wearing an acoustic tracking device on its fin.

Some days it’s a really cool job!!!


Public Affairs Environmental Support

A 40 ton sei whale, being necropsied by the Virginia Marine Science Museum's stranding team (Feb ’03) at the Little Creek Naval Amphibious Base

Officer’s beach.

Some days it’s not!!!


Why is subject important?Why is subject important?

Why do we care?Why do we care?

What is the role of the What is the role of the Environmental Attorney?Environmental Attorney?


How do we even have How do we even have environmental laws??environmental laws??

The Constitution?Life – Liberty – the Pursuit of

Happiness?

If it’s not in the constitution, how can we have environmental laws?


Political Activism: The 60’s


A Silent Spring

"The sedge is wither'd from

the lake, And no birds sing.“ - John Keats

"La Belle Dame sans Merci"


Uncle Sam Reacts

U.S. Environmental Laws

NEPA (1969) CAA (1970) CWA (1972) ESA (1973) MMPA (1972) CZMA (1972)

U.S. EPA formed 1970


Federal Environmental Legislation

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1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010 2020

Year

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1929 MBTA 1973 ESA 1988 FCRPA 1995 CZMRA1935 HSA 1974 SDWA 1988 FLPMA 1996 LDPFA1936 FWCA 1974 SA 1988 MWTA 1996 MCRBMA1938 FDCA 1974 AHPA 1988 FHSA 1996 WRDA1947 FIFRA 1975 HMTA 1988 LCCA 1996 SPA1954 WPFPA 1975 FIFRA 1988 TSCA 1996 FQPA1956 CAA 1976 TSCA 1988 UMTRAAA 1996 SDWA1960 FHSA 1976 FLPMA 1988 WSRA 1996 NMSPA1962 CAA 1976 WRDA 1988 NWPA 1997 SAIA1964 FWPRA 1976 RCRA 1988 FEAPRA 1998 MBTRA1964 WA 1977 SMCRA 1988 AIA 1998 NWRSVCPEA1965 SWDA 1977 CWA 1988 FEMIA 1999 WRDA1965 LWCFA 1978 AIRFA 1988 ODBA 2000 ECWA1966 NHPA 1978 FIFRA 1988 SPA 2000 WRDA1966 NWRSAA 1978 UMTRCA 1989 WRDA 2000 CBRRA1967 CAA 1979 ARPA 1990 NAWCA 2000 ESA1968 WSRA 1980 UORA 1990 OPA 2000 NMSPA1968 SA 1980 CERCLA 1990 APA 2000 NMBCA1968 EPA 1980 FWCA(2) 1990 CAAA 2000 BEACHA1969 NEPA 1980 APA 1990 WRDA 2000 FWPINWFSCA1970 RRA 1982 NWPA 1990 HMTUSA1970 WQIA 1982 SA 1990 PPA1971 OHSA 1984 HSWAA 1990 NEEA1972 PWSA 1986 SARA 1990 NAGPRA1972 FWPCA 1986 EPCRA 1991 FIFRA1972 FIFRA 1986 RGIAQA 1992 NHPA1972 MMPA 1986 WRDA 1992 WRDA1972 MPRSA 1986 SA 1992 FFCA1972 NCA 1987 WQA 1992 CERFA1972 CZMA 1987 FIFRA 1994 CAAA


Federal Agencies Have Significant Federal Agencies Have Significant Environmental ResponsibilitiesEnvironmental Responsibilities


The National Environmental Policy Act (NEPA) 42 U.S.C. Secs. 4321-4347 Known as NEPA, almost 40 years in existence National Charter for protection of the Nation’s environment

and living resources Establishes a national environmental policy to promote wise

use and planning for environment by Federal Agencies Provides statutory basis for review of Federal decisions that

impact the environment Created Council on Environmental Quality (CEQ); CEQ

Regulations found at 40 CFR Sec 1500 Procedural Law-Follow the correct process


The National Environmental Policy Act (NEPA)

US Army – 32 CFR 651 (AR 200-2) US ACE – 33 CDR 230; see also 33 CFR 325 US Air Force – 32 C.F.R. 989 and 64 F.R. 38127 USCG – COMDTINST M16475.1D US Navy – 32 CFR 775 (SECNAVINST 5060.6A) USMC – 32 CFR 775 (SECNAVINST 5090.6A) NASA – 14 CFR 1216 and 53 F.R. 9759 US DOJ – 28 CFR 61 (and appropriate Appendices)http://www.nepa.gov/nepa/regs/agency/agencies.cfm


NEPA’s Twin ObjectivesTwin Objectives: Environmental Environmental Impact AnalysisImpact Analysis and Public ParticipationPublic Participation Full disclosure, analysis and consideration of

environmental information as a criteria within Federal agency decision makingPreventing environmental damage

Agencies must inform the public of potential impacts and alternatives and involve the public in decision makingEnsuring agency has taken environmental factors of concern

to public into account

This is to lead to better governmental decision-making within our Republic


The National purposeNational purpose of planning for environmental protection is achieved by:

Requiring the Federal agency to…“..utilize a systematic, interdisciplinary a systematic, interdisciplinary approachapproach to ensure the integrated use of the natural and social sciences, and the environmental design arts in planning and in planning and decision makingdecision making, where Federal actions may have an impact on the environment.” NEPA § 102


NEPA as an “Umbrella” for Other Laws & Regs Federal Aviation Act of 1958 Federal Aviation Regulation (Parts 71, 73, and 91) FAA Handbook Parts 7400.2C and 7110.65

Federal Water Pollution Control Act of 1948 Clean Water Act of 1977 Executive Order 11988 (Floodplain Management) Safe Drinking Water Act of 1974

Resources Conservation & Recovery Act of 1976 Solid Waste Disposal Act & Amendments of 1980 Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) of 1980, and SARA of 1986

Endangered Species Act of 1973 Fish and Wildlife Conservation Act Migratory Bird Treaty Act of 1972 Executive Order 11990 (Protection of Wetlands) Bald Eagle Protection Act

Clean Air Act Executive Order 12088 (Pollution Control

Standards)

National Historic Preservation Act of 1966 Protection of Historic and Cultural Properties Native American Graves Protection and

Repatriation Act (NAGPRA) Archaeological Resources Protection Act of 1979 Executive Order 13007 American Indian Religious Freedom Act Executive Order 11593

Executive Order 12898 (Environmental Justice)

Airspace

Materials

Water Resources

Biological Resources

Cultural Resources

Air Quality

Environmental

Justice


Overlapping Requirements

ESA Biological Opinion (BO)

Law Agency ProductAgency Timeline

NMFS (Marine) USFWS (Terrestrial)

135 days (min)

Drivers

MMPA Letter of Authorization (LOA)

NMFS 14 mos. (min)

CZMA Consistency Determination

90 days State Coastal Authority

Concurrent with NEPA Process

“may affect” protected species or critical habitat

likely to result in marine mammal takes

likely to be coastal effects


When does NEPA apply? Whenever agencies propose to take “major Federal “major Federal

actions significantly affecting the quality of the human actions significantly affecting the quality of the human environment”:environment”: Major Federal actions: policies, plans, programs and projects Significantly: context and intensity Affecting: will or may have an effect The human environment: the natural and physical

environment This has led to a system of tiered levels of analysis to

determine the significance of impacts by the action on the environment


The NEPA Analysis TriggerTrigger

Whenever agencies propose to take an action with the potential to affect the natural and physical environment

In other words, Federal actions that can be new or ongoing with the potential to effect national environmental resources


Levels Of NEPA Analysis and ProcessLevels Of NEPA Analysis and Process

The requirement to conduct impacts analysis has led to a three-tiered system of documentation and analysis, each with its own required level of analysis, degree of public participation and type of decision making document ultimately used.

They are:Categorical Exclusion (CATEX, CE); Environmental Assessment (EA); and,Environmental Impact Statement (EIS).


Categorical Exclusion (CATEX)Categorical Exclusion (CATEX) Each Agency promulgates own list of CATEXs through

rule-making This is related to the Agency mission and routine types of

actions These categories of action do not have significant effects

on the environment, either individually or cumulatively Document in a 1-2 page memo signed at the local CO

level The use of a CATEX excludes the action from further

environmental analysis Where action falls within CATEX but “extraordinary

circumstance exists”, CATEX cannot be used


CATEX cannot be used where “Extraordinary Circumstance” exists Affects public health or safety Where Resource Agency determines may have potential

for significant impacts on: wetlands, endangered or protected species, cultural resources, protected resources, or hazardous waste sites

Uncertain risks, scientific controversy Establishes a precedent for future actions May violate a local, State or Federal environmental law or

requirement Additional warnings in each Agency’s regulations


Environmental Assessment (EA)Environmental Assessment (EA) Used when agency does not know beforehand whether or not

the proposed action will significantly affect the environment Analysis discusses:

Proposed action, purpose and need, alternatives, affected environment and anticipated impacts; Consultation with Resource Agencies

Result is Finding Of No Significant Impact (FONSI) or decision to prepare EIS

May mitigate level of impacts down to FONSI Public participation is at the discretion of the decision-maker

and advice from team preparing the document Signed out at the Flag/SES level


Environmental Impact Statement (EIS)Environmental Impact Statement (EIS)

The EIS is prepared where the Federal action has the potential for significant environmental impacts

Comprehensive analysis includes: Impacts (direct, indirect and cumulative), Actions (connected, cumulative and similar) Reasonable alternatives


Reasonable Alternatives AnalysisReasonable Alternatives Analysis

Shows the comparison between all ways to conduct the action to fulfill purpose and need

Analysis developed from affected environment: area where impact will be located-all ecology, natural resources, protected resources, historic and cultural resources, media

Analysis from environmental consequences: scientific and analytic comparison of all impacts from range of alternatives


Also Included in Document:

Purpose and need of proposed action Results from consults with other Federal

Agencies where they have jurisdiction by law or special expertise over a resource or issue

Special coordination with Cooperating Agency Coordination with interested parties, public, state

and local governments, Indian tribes Executive summary, technical data for

appendices


Environmental Impact Statement Requires Environmental Impact Statement Requires Public ParticipationPublic Participation

Start with Notice of Intent SCOPING - early and open process to determine scope of

issues to be addressed and to identify the significant issues related to a proposed action As part of process, Agency:

Invites affected Federal, State and local agencies, affected Indian Tribes, and other interested parties to participate

Following DEIS publication, re-invite comments at formal public hearing

Record of Decision signed out by Secretariat is published in Federal Register


The Record of Decision (ROD) Following FEIS, ROD is designed to ensure that Agency

decision-makers explain the decision to the Nation Concise public document that states the decision and

identifies all alternatives including environmentally preferable alternative

Reveals whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why not

Adopts and summarizes a monitoring and enforcement program for any mitigation measures


Proposed Action

Categorical Exclusion

Environmental Assessment

OverviewOverview

of theof the

NEPANEPA

ProcessProcess

Notice of Intent Draft EIS Final EIS

Scoping Process Public Comment

- Significant Impact Revealed

- Inability to mitigate impacts

- Extraordinary Circumstance

- No CATEX exist

No

Yes CATEX available

No

Yes

Finding of No Significant

Impact (FONSI)

Record/Memo to File

FONSI prepare and proceed

Record of Decision (ROD) prepare and proceed


Collaborative Approach to NEPA CEQ Handbook Collaboration in NEPA (October 2007) Only works when there is sufficient decision space - room for

parties to mold the solution that meets their needs Why?

Brings in more transparency to the processBroader agreement (the "buy in")Reduces conflictsExpediting the NEPA process

Different Approaches (for example, in the area of alternatives)Public workshops to discuss draft alternatives and how they can

be improved.Working with advisory committees or other existing stakeholder

groups to identify and refine alternatives, or ID effects, etc.


Tiering and Programmatic DocumentsTiering and Programmatic Documents

Stepped approach to analysis by using other documents to develop current analysis

Incorporates previous findings by reference Allows action proponent and decision maker to

complete the analysis at varying stages of action development

Programmatic documents also encouraged


Agency Discretion: Informed Decision-Agency Discretion: Informed Decision-makingmaking

The Agency may chose, using its informed discretion, what level of NEPA review is required

The Agency may select whichever alternative it prefers, where it understands and is informed consequences of the action

The Agency may select an alternative other than the least damaging alternative where the decision maker has considered the environmental effects of the action-”Hard Look” standard


Inter-Agency ConsultationInter-Agency Consultation

Other agency’s may be responsible for reviewing or sharing in the preparation of NEPA documents and procedures: Cooperating agency’s- “special jurisdiction” and where

law details must consult: ESA, NHPA, MMPA, CAA Conformity Review

Appropriate State and local agencies authorized to develop and enforce environmental standards

Indian tribes Any other agency requesting EPA reviews EIS and rates analysis


Challenging Agency ActionChallenging Agency Action

Challenges brought under the Administrative Procedure Act Administrative Record Standing Standard of review: arbitrary and capricious, an abuse of

discretion, or otherwise contrary to law Injunctive relief; attorney fees

Basis of challenge usually inadequacy of environmental analysis, unreasonable or no rationale for decision, failure to follow procedures


Consequences

InjunctionPenaltiesPoliticsPublic relations


A Lot Of Water


Readiness Costs

Low Frequency Active Sonar: 6 year delay; $10 million Scientific Research Project. Deployed already by Russia and France.

JOHN PAUL JONES Ship Shock: Coordinated with regulators, sued by activists. Settlement delayed test 30 days. $3 million dollars cost. Final location more populated.

CHURCHILL Ship Shock: $1.6 million cost for EIS.

TAP – Range Documents $98 million for environmental planning & compliance documentation


Denial - The initial stage This can't be happening

Anger Why is this happening to me?

It's not fair Bargaining

I promise to be a better person (Navy) if ...

Depression I'm so sad, I don’t care anymore

Acceptance It's going to be OK – I’m ready

for whatever comes

Stages of GriefKübler-Kübler-Ross ModelRoss Model

Dr. Elizabeth Kübler-Ross

On Death and Dying (1969)


Additional “At Sea” Planning and Policy Additional “At Sea” Planning and Policy Documents – Navy and Marine CorpsDocuments – Navy and Marine Corps

28 Dec 00 “At Sea Policy”

OPNAVINST 5090.1C (Ch. 5); MCO P5090.2B

23 Dec 04 CNO (N45) Supplemental Environmental Planning Policy

March 2006 CNO (N45) MFA Sonar Effects Analysis Interim Policy

April 2007 CNO (N45) Update to MFA Sonar Effects

Navy/NOAA Ltr Agreement (2005)


Environmental Planning Outside US Environmental Planning Outside US TerritoryTerritory

NEPA itself does not apply abroad-12nm inward to shoreline

Executive Order 12114, Environmental Effects Abroad, governs environmental planning abroad “NEPA-like analysis” for actions that significantly

harm the environment outside the U.S. Impacts Analysis only: No required public

involvement and no Judicial Review Series of analytic documents to prepare

depending upon where the impact exists


Where Does E.O. 12114 Apply?Where Does E.O. 12114 Apply?

The global commons The environment of a

foreign nation that is not participating or otherwise involved in the action

The environment of a foreign nation by use of toxic or radioactive substances

Those resources of global importance


Applicability At Sea

US Territorial Waters12 NM

US EEZ200 NM

Global Commons

Foreign Nation EEZ200 NM

Foreign Territorial Waters 12 NM

NEPA

EO 12114

ESA & MMPA

CZMA

Uni

ted

Sta

tes

For

eign

Nat

ion


Mandate of E.O. 12114 and Appendix E Mandate of E.O. 12114 and Appendix E (OPNAVINST 5090.1C)(OPNAVINST 5090.1C)

A Command proposing a major Navy action that has the potential to significantly harm the environment outside the United States, shall, before they go forward with an action or eliminate a reasonable alternative, complete a:

Overseas Environmental Impact Statement (OEIS) Overseas Environmental Assessment (OEA) Environmental Review (ER) Environmental Study (ES)


Selecting the Proper DocumentSelecting the Proper Document

Selection is based upon where the impact will occur Global Commons or US 12nm seaward to EEZ?

OEA (potential), OEIS (will harm) Environment of a non-participating/non-involved foreign

nation? Environment of a foreign nation where action involves toxics/radioactives? Natural or ecological resources of global importance? ER if unilateral ES if bilateral or multilateral

Most Navy EAs and EISs are hybrid documents: EIS/OEIS and EA/OEA


Take Aways

This is a complex issue We’re exposed to liability The Navy is NOW trying to lead

environmental compliance Liaise with the environmental attorneys

now! Strategic Environmental Communication

is of paramount importance

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