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Key Court Cases Related to Cumulative Effects Assessment Management (CEAM)

within Impact Studies

P.E. Hudson, J.D.

#IAIA13 @P_E_Hudson

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Introduction

United States Federal Agencies are frequently challenged on adequacy of cumulative effects assessment in impact studies

Agencies struggle to apply these processes to local projects as well as adequately discussing cumulative effects assessment impacts and methodology.

Substantive review of latest case law and trends involving CEAM provides some insight into how the courts review these procedures.

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CEQ Regulations

Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. § 1508.7

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CEQ Regulations and Guidance

Cumulative impacts are also included as an intensity factor in defining the term significantly. 40 C.F.R. § 1508.27 (b)(7)

CEQ released guidance “Considering Cumulative Effects Under the National Environmental Policy Act.” (1997). The report contains an 11-step CEAM process.

CEQ released guidance “Guidance on Consideration of Past Actions in Cumulative Impacts Analysis” (2005)

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Standard of Review – Procedural

• In the United States, for impact studies, the Administrative Procedure Act (APA) dictates a Court will: hold unlawful and set aside agency action, findings or conclusions (in impact studies) found to be:• arbitrary,• capricious,• an abuse of discretion,• otherwise not in accordance with the law, or, • without observance of procedure required by

law

5 U.S.C. §706 (2)

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Standard of Review: Hard Look

“ To make [the previous] finding, the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment . . . Although this inquiry into the facts is to be searching and careful [hard look], the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the Agency.”

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds by Califano v. Sanders, 430

U.S. 99, 105 (1977); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989)

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Standard of Review – Hard Look

“ . . The most important is the incessant demand of the hard look case law for reasoned decisionmaking . . . under the doctrine, assumptions must be spelled out, inconsistencies explained, methodologies disclosed, contradictory evidence rebutted, record references solidly grounded, guesswork eliminated and conclusions supported in a “manner capable of judicial understanding.”

E.I.duPont de Nemours & Co. v. Train, 541 F.2d 1018, 1038 (4th Cir. 1976) aff’d in part and rev’d in part, 430

U.S. 112 (1977)

** No undocumented assertions or conclusions **

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Standard of Review – Rule of Reason

Courts look at a slightly higher standard for analyzing adequacy of cumulative effects assessment – the “Rule of Reason”

Reasonable Foreseeably part of Definition in Regulations requiring Assessment of Cumulative Impacts. 40 C.F.R. § 1508.7

40 C.F.R. § 1502.22(b)(4) (“[A]nalysis of the impacts ... is within the rule of reason

“[T]hat the impact is sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” Northwest Bypass Group v. United States Army Corps of Eng'rs, 552 F. Supp. 2d 97 (D.N.H. 2008)

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Standard of Review – Rule of Reason

“In reviewing the adequacy of an EIS, we employ a rule of reason to determine whether the EIS contains a reasonably thorough discussion of the significant aspects of probable environmental consequences.”

Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002) (internal quotation marks omitted).

General Scope

Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985), disapproved on other grounds by Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669 (5th Cir. 1992).

A meaningful cumulative-effects study must identify: (1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions - past, proposed, and reasonably foreseeable - that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.

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Statistical Approach to CEA Peer reviewed Research

J.N. Rumrill and L.W. Canter, “Addressing future actions in cumulative effects assessment,” Project Appraisal, volume 12, number 4, pp. 207-218, December 1997.• Substantive review of US case law to 1997

regarding future actions in CEA.• Recommendation is to focus on the eight step

conservative determination method for future actions. This approach is a methodology that serves to organize the a procedure for future actions

• Agencies can show in a process based approach, why an action is, or is not, included in a CEA.

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Statistical Approach to CEA Peer reviewed Research

Smith, Michael, Ph.D., “Cumulative Impact Assessment under the National Environmental Policy Act: An Analysis of Recent Case Law”, Environmental Practice 8:228–240 (2006)

• Statistical Review of Ninth Circuit Court of Appeals cases – 1995 – 2004.

• Select Recommendations:• Ensure cumulative impacts for each resource are

analyzed; carefully search out, document, and analyze all past, present, and reasonably foreseeable future actions.

• Do not make unsubstantiated claims about cumulative impacts in your analysis

• Agencies do not have to draft a “perfect” analysis of cumulative impacts in order to survive a legal challenge

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Recent Appellate Cases 2012 - 2013

2013 – Appellate Cases• One Win/One Loss (50%) (One case to SCOTUS)• Challenges: Sufficiency of analysis to consider

Past Impacts on CEA, Cumulative Effect Analysis in Categorical Exclusion.

2012 – Appellate Cases• Three Wins by Agencies/One Loss by Agency (75%)• Challenges: CEA – thoroughness of analysis of

effects, consideration of future projects, correct determination of effects and impacts in CEA from flaw in baseline study

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Recent District Court Cases 2012 - 2013

2013 – Federal District Court Cases (8)• Eight lower court CEA challenges• Agencies Successful in 6 of 8 cases with regard to

the CEA challenge• Most likely reason for challenge: Agency failed to

consider other impacts (insufficiency) 2012 – Federal District Court Cases

• 15 lower court CEA challenges• Agencies successful in 9 of 15 cases with regards

to the CEA challenge• Most likely reason for challenge: Agency failed to

sufficiently describe CEA or consider other impacts

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Recent Cases 2012

Webster v. U.S. Dept. of Agriculture, 685 F.3d 41 (4th Cir. 2012)• Property owners whose land would be adversely affected

by dam's construction challenged the impact study’s failure to sufficiently analyze cumulative effects, among other claims.

• The Impact Study (Supplemental Environmental Environmental Impact Statement (SEIS)) challenge involved a watershed project, flood prevention and recreation.

• The Court “must take a holistic view of what the agency has done to assess environmental impact” and “examine all of the various components of [the] agency's environmental analysis ... to determine, on the whole, whether the agency has conducted the required ‘hard look.’”

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Recent Cases 2012

Webster v. U.S. Dept. of Agriculture, 685 F.3d 41 (4th Cir. 2012) • Agency properly analyzed environmental effects

that dam in detail and its impacts thoroughly.• Agency performed a thorough investigation into the

action's effects and candidly acknowledged its risks

• Argued that the Agency should have considered the effects resulting from the construction of a new water treatment facility and water distribution system to service the water supply source at the dam. But the court found the action was not reasonably foreseeable, as the system has not been planned and is speculative, making any effects resulting from it speculative.

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Recent Cases 2012

Habitat Educ. Center, Inc. v. U.S. Forest Service, 673 F.3d 518, (7th Cir. 2012) • Environmental organizations and individuals

brought action challenging an Agency’s approval of logging projects in a heavily forested Northern Wisconsin area.

• One of the challenges involved the exclusion of a future project from the impact study.

• The Court found the Agency excluded the future project from its final statements because the project was not capable of meaningful discussion at the time the draft impact statements were released.

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Recent Cases 2012

Habitat Educ. Center, Inc. v. U.S. Forest Service, 673 F.3d 518, (7th Cir. 2012) • The Court declined to “transform[ ] the two-stage

EIS preparation process into an endless loop of creating and recreating draft statements. NEPA does not require federal agencies to do the impractical.”

• Another challenge involved the lack of meaningful information for the Agency to discuss the future project.

• Since the Agency established that the future project was not reasonably foreseeable - the Agency need only have made clear that information was lacking to comply with the regulations.

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Recent Cases 2012

Habitat Educ. Center, Inc. v. U.S. Forest Service, 673 F.3d 518, (7th Cir. 2012) • Dissent: Argues future project was reasonably

foreseeable, because after draft but before final impact study the Agency issued a scoping notice for the future project that included a description of project boundaries, project objectives, identified a proposed action, estimate of acres impacted and volume of timber harvested.

• Compare with the majority opinion that applicable future actions are determined at the time the draft impact study is released to the public

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Recent Cases 2012

Citizens for Smart Growth v. Secretary of Dept. of Transp., 669 F.3d 1203 (11th Cir. 2012)• Citizens organizations challenged a bridge

construction project over a riverway in South Florida alleging NEPA violations.

• Citizens alleged cumulative effects analysis was insufficient.

• Court upheld CEA; stating that the agency consulted the County long range plan and found no other project pending.

• Citizens alleged agencies should have used better methodologies.

• Court found that compliance with NEPA may not have been perfect, but it was sufficient.

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Recent Cases 2012

North Carolina Wildlife Federation v. North Carolina Dept. of Transp., 677 F.3d 596 (4th Cir. 2012)• Environmental organizations brought action against

federal agencies to enjoin a 20 mile toll road in North Carolina.

• Federal agencies relied on a fundamental inaccuracy in the “no build” baseline - in essence, data that assumed that the 20 mile toll roll existed in the baseline.

• This underlying assumption led to a flaw - making it impossible to accurately isolate and assess the environmental impacts of the toll road. The Agencies erred in clarifying to the public that the data did not account for the toll road.

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Recent Cases 2012

North Carolina Wildlife Federation v. North Carolina Dept. of Transp., 677 F.3d 596 (4th Cir. 2012) • Courts find NEPA violations when an Agency

miscalculates the “no build” baseline or when the baseline assumes the existence of a proposed project.

• NEPA procedures emphasize clarity and transparency of process over particular substantive outcomes – here the public was misinformed by the agencies.

• Impact Study Remanded.

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Recent Cases 2013

Kentucky Riverkeeper, Inc. v. Rowlette, --- F.3d ----, 2013 WL 1704998, (6th Cir. Apr. 22, 2013)• Remanded Environmental assessment (EA)

prepared by federal agency that reauthorized nationwide coal-mining waste discharge permit.

• The EA failed to comply with NEPA regulations' requirement to assess the cumulative impact of past actions.

• The agency reasonably relied on data regarding past impacts to project future impacts (baseline study), but it failed to combine the two to gauge the cumulative impacts of its action.

• The EA offered conclusory statements with regard to its CEA

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Recent Cases 2013

• Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) • Involved Application of Cumulative Effects

Analysis in Categorical Exclusion for Gravel Permit

• 40 C.F.R. Sec. 1508.25 does not apply (inconsistent with the efficiencies that the abbreviated categorical exclusion process provides); but extraordinary circumstances provide for analysis of cumulative impacts.

• Agency provided evidence of efficient cumulative effects analysis in its application of the categorical exclusion

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Recent Cases 2013

Pacific Rivers v. United States Forest Service, 669 F.3d 1203 (9th Cir. 2012) (Petition for Certiorari Review Granted 3/18/2013). Question for the Supreme Court: Whether NEPA

required the Forest Service, when adopting the programmatic amendments, to analyze every type of environmental effect that any project ultimately authorized under the amendments throughout the 11 affected forests might have if it was reasonably possible to do so when the programmatic amendments were adopted, even though any future site-specific project would require its own appropriate environmental analysis before going forward.

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Recommendations

Follow and explain reasoned methodology for impact assessment; no undocumented assertions

Ensure Agency makes clear if information is lacking

Ensure baseline is accurate before assessing impacts and effects

Ensure CEAM is analyzed in all levels of impact studies as appropriate

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Recommendations Provide accurate data to public during draft release

regarding impacts, and effects; correct if inaccurate or supplement as necessary, with public comment period

CHALLENGES TO SCOPE ARE INCREASING: Analyze past, present and reasonably foreseeable future actions (5 of 7 cases appellate cases in 2012-2013 involved scope)

Proceed with caution regarding releasing notice of intent or scoping for future projects in same project area if the project has not been analyzed or addressed in the draft impact study

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QUESTIONS?

COMMENTS?