145 6 The Threshold Question: When Is an EIS Required? Indisputably, the single and most commonly cited provision of the National Environmental Policy Act (NEPA) involves the requirement to prepare a detailed statement: … on proposals for legislation and other major federal actions signicantly affecting the quality of the human environment … 1 Often referred to as the threshold question of signicance, the importance of thoroughly under- standing this requirement cannot be overstated as it determines whether an environmental assess- ment (EA) or an environmental impact statement (EIS) will be required for a particular action. Schedules, budgets, and the success of entire federal projects can rest on conclusions drawn from a review of this requirement. The threshold question is predicated on a number of key components or criteria, and each of these must be met before the requirement is triggered as a whole. Each of these criteria, therefore, needs to be thoroughly understood before an informed decision can be made regarding the need to prepare an EIS or otherwise comply with NEPA. It should be noted that these criteria were not specically dened in the Act. Instead, this task was left to the drafters of the NEPA implement- ing regulations (Regulations) and to the courts. A considerable amount of professional experience is frequently required in determining precisely what circumstances will trigger each one of these criteria. Table 6.1 breaks the threshold requirement into its discrete criteria. Each criterion is cross- referenced according to where it is dened in the Regulations. These criteria are dissected and examined in detail in the following sections. 6.1 DETAILED STATEMENT NEPA uses the phrase “detailed statement” in referring to the document that must be prepared for major federal actions signicantly affecting the quality of the human environment. The Regulations use the term “environmental impact statement” or “statement” as a synonym for detailed statement. 6.2 PROPOSALS The requirement to prepare an EIS pertains to proposals for legislation and other major federal actions (Table 6.1). The term proposals might at rst appear straightforward, yet numerous chal- lenges have centered on the precise meaning of this term. Three factors have been established by the Council on Environmental Quality (CEQ) for determining when a plan has matured to the stage where it can be considered an actual proposal (§ 1508.23): A federal agency has a goal The agency is actively preparing to make a decision on one or more alternative means of accomplishing the goal The effects can be meaningfully evaluated • • • CRC_7559_CH006.indd 145CRC_7559_CH006.indd 145 1/31/2008 4:34:18 PM1/31/2008 4:34:18 PM © 2008 by Taylor & Francis Group, LLC 146 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Based on these three criteria it is clear that a proposal may exist, although the agency has not ofcially declared one to exist. As depicted by the third criterion, lack of ripeness is not to be mis- construed as a license to move forward, ignoring the requirements of NEPA. Agencies are expected to schedule proposals early enough in the planning process so that an EIS may be completed on time for it to be included in any recommendation or report on the proposal (§ 1502.5, § 1508.23). 6.3 LEGISLATION The term “legislation” includes (§ 1508.17) … a bill or legislative proposal to Congress developed by or with the signicant cooperation and support of a federal agency, but does not include requests for appropriations. The test for “signicant cooperation” hinges on whether the proposal is in fact predominantly that of a federal agency as opposed to another source. Legislative proposals include requests for ratication of treaties. These proposals are subject to special requirements described in § 1506.8 of the Regulations. Only the agency with primary responsibility for the subject matter involved is required to prepare a legislative EIS. However, drafting legislation does not, by itself, constitute signicant cooperation. 6.4 THE TERM “MAJOR” The courts have not completely agreed on the denition of the term “major.” One of the early his- toric cases in NEPA involved plaintiffs who sued to enjoin (stop) timber sales until the Forest Ser- vice completed an EIS for the management of the area. The Forest Service argued that the phrase “major federal actions signicantly affecting the quality of the human environment” created two tests: (1) determining rst whether there is a major federal action and (2) determining whether the impact of that action on the environment is signicant. The Forest Service argued that the timber sales were not “major” federal actions. 2 The court concluded that the requirement “major federal actions signicantly affecting the quality of the human environment” involved only a single criterion and that was sufcient to trigger an EIS since the two criteria were interwoven. As the court viewed it, “To separate the consideration of the mag- nitude of federal action from its impact on the environment … would [make it] possible to speak of a ‘minor federal action signicantly affecting the quality of the human environment,’ and to hold NEPA inapplicable to such an action … the activities of federal agencies cannot be isolated from their impact on the environment.” However, a few courts have interpreted the term major to be a separate criterion independent of the term signicantly, as used in Section 102 of the Act. In such cases, the courts have generally interpreted “major” to be an indicator of either the size or complexity of a project. Factors such as TABLE 6.1 The Threshold Requirement Key Definitions Reference Location Detailed statement § 1508.11 On proposals § 1508.23 For legislation and § 1508.17 Other major federal actions § 1508.18 Signicantly § 1508.27 Affecting § 1508.3 and 1508.8 The quality of the human environment § 1508.14 CRC_7559_CH006.indd 146CRC_7559_CH006.indd 146 1/31/2008 4:34:18 PM1/31/2008 4:34:18 PM © 2008 by Taylor & Francis Group, LLC The Threshold Question: When Is an EIS Required? 147 funding levels, allocation of resources, and degree of planning have all been used as indicators for determining if a particular project is considered a major action. Mandelker has identied examples of activities which the courts have held to be major or minor (see Table 6.2). 3 The reader is cautioned that such examples do not necessarily reect their signicance. The CEQ, as well as most courts, has taken the position that the term “major” is interpreted to reinforce the term “signicantly” but does not have a meaning independent of it (§ 1508.18). Under this interpretation, the actual size or complexity of a project has little bearing in determining if it is an action that may signicantly impact the environment. 4 This second interpretation stems from the view that if an action results in a signicant impact, the action is essentially a major action. 5 Such a position avoids potential dilemmas that may arise when an EIS is required for a minor action that results in a signicant impact. It also avoids dilem- mas where environmental impacts of a major federal action are deemed to be nonsignicant. 6.5 THE TERM “FEDERAL AGENCY” As dened by the Regulations, the term federal agency includes all agencies of the federal govern- ment. It does not include “… the Congress, the Judiciary, or the President, including the performance of staff functions for the President in his Executive Ofce” (§ 1508.12). The meaning of “federal” might at rst appear to be relatively straightforward. Yet, in some instances, actions undertaken by a nonfederal agency may still be subject to the requirements of NEPA (also referred to as the small federal handle). In recent years, an effort has been under way to privatize many facilities and operations that traditionally have been operated and carried out by federal agencies. This effort has raised many issues with respect to NEPA compliance. In some circumstances, what would otherwise be considered a nonfederal action may be fed- eralized with respect to NEPA. For example, in one case, a federal agency entered into a contract with a private entity to provide power for a large private project. The federal agency agreed to build a transmission line and to supply power to the private party sponsoring the project. The agency claimed that an EIS was not required since this was a private action. The court ruled that the con- tract with the private entity had essentially federalized the entire project for the purposes of NEPA. This federalization was of such an extent that the agency was ordered to prepare an EIS to evaluate the impacts of the private plant in addition to those of the transmission line. 6 6.5.1 FACTORS THAT MAY FEDERALIZE AN ACTION Three principal factors have been used by the courts in determining if federal agency involvement has made federalized what would otherwise be considered a nonfederal action. 7 TABLE 6.2 Examples of Major and Minor Actions Examples of Actions Held to Be Major Examples of Actions Held to Be Minor A $14 million bridge with 60% federal funding• A replacement bridge• Conversion of a large federally subsidized housing project with a major change in its use • Demolition if a historic building for which $25,000 of federal funding was committed • A 66-mile water channel project costing $1.5 million with $700,000 of federal funding • Retrotting 20,000 railway cars to meet federal safety regulations • Transferring a small group of employees and one of the agency functions from an agency eld ofce • Minor trafc improvements• CRC_7559_CH006.indd 147CRC_7559_CH006.indd 147 1/31/2008 4:34:18 PM1/31/2008 4:34:18 PM © 2008 by Taylor & Francis Group, LLC 148 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners If the involvement is supported by a federal contract, grant, loan, or other nancial assistance; enabled through a federal lease, license, permit, or other entitlement; 8 and caused federally. 6.5.1.1 Federal Support by Contract, Grant, Loan, or Financial Assistance Actions supported by federal payment for services rendered can be viewed as requiring NEPA review. 9 In cases where federal funding has subjected a state or private project to the requirements of NEPA, the funding has been considered not only to be generally active, as opposed to a passive deferral of payment, but also programmatic, in the sense of being provided primarily to further a policy goal of the funding agency. 10 Normally, a substantial percentage or amount of federal funding is necessary to trigger an NEPA review. Some nonfederal actions that are funded from federal general revenue have been considered to be federal if a federal agency governs how the funds are used. As with federal payment for services rendered, NEPA is required when massive federal nancial assistance has been given to a state or private project. 11 Accordingly, the federal government becomes accountable under NEPA for its actions. 12 Conversely, nonfederal actions have not been federalized when indirect funding seemed mar- ginal at most and where federal ofcials had no decision-making role. 13 For example, federal partic- ipation in a beetle eradication project in California was not sufcient to trigger NEPA compliance, although three federal ofcials were part of an eight-member board that made recommendations to the state on eradicating a Japanese beetle pest infestation. The court reasoned that the eradication project was not federally funded because the traveling expenses of the participating federal ofcials were paid by the state, and the eradication project was a state project. The court considered that for the duration of the board meetings, the salaries of the participating federal ofcials were not reim- bursed by the state but still supported a ruling that NEPA did not apply. 6.5.1.2 Enablement by Permit, Lease, License, or Entitlement When a federal agency has discretion in its enabling decision to consider environmental conse- quences and when that decision forms the legal predicate for another party’s impact on the envi- ronment, preparation of NEPA documentation is warranted because the agency has substantially contributed to the environmental impact. 14 The Regulations reinforce the concept that enablement involves the execution of a required federal action that enables a private party to pursue an action. The denition of a major federal action includes granting of permits or other regulatory decisions as well as federal and federally assisted activities. Federal actions that amount to less than a legal precondition are noticeably omitted from this denition. 15 Enablement is demonstrated by a case involving the Department of Agriculture that was required to prepare an EIS to approve logging operations by a private company. Evidence demonstrated that the federal agency had a responsibility greater than a ministerial act of approval. Not only had it extended logging contracts and modied other contracts, but also it had a nancial interest in the lumber acquired. The actions of the federal agency enabled the logging operations in the area to be undertaken, but most signicantly, the federal agency was legally obligated by contract to give its approval to the project before it could proceed. 16 In some cases, federal approval of a private party’s project, where that approval is not required for the project to go forward, has not constituted a federal action. 17 However, a nonfederal entity may create a federal action if it consents to federal regulation or grants to a federal agency the ability to control the outcome of the proposed project. 18 A distinguishing characteristic of federal involvement is the ability to inuence or control the outcome of a nonfederal project in some material respect. • • • CRC_7559_CH006.indd 148CRC_7559_CH006.indd 148 1/31/2008 4:34:19 PM1/31/2008 4:34:19 PM © 2008 by Taylor & Francis Group, LLC The Threshold Question: When Is an EIS Required? 149 6.5.1.3 Federal Control A federal action such as federal approval of a lease, license, permit, or other entitlement that enables a private or state action to take place may be subject to NEPA. In such circumstances, overt federal agency action in furtherance of the nonfederal project is ‘federalized’ for the purposes of NEPA. 19 For example, the Pueblo Indians leased restricted Indian lands to a development company, and the Bureau of Land Management (BLM) approved this lease. 20 Emphasizing Congress’ concern for environmental protection, the court held that BLM approval constituted a major federal action, although the federal government neither initiated the lease nor participated in it nancially. 21 6.5.1.4 Some courts also consider whether there is continuing agency involvement in a challenged project such that termination or modication of the agency involvement would terminate or signicantly impact the project. Since NEPA only requires federal agencies (not states or private parties) to consider the environmental impacts of their proposed actions, nonfederal actions must sufciently involve a federal action before it is subject to NEPA. 22 6.5.1.5 Causation A nonfederal action may be federalized if the nonfederal action would not otherwise take place were it not for specic actions undertaken by a federal agency. That is, “but for” the federal action, the nonfederal action would not occur. These “but for” actions, by themselves, do not necessarily trigger the requirements of NEPA. Rather, the federal action must also be substantially interrelated to the otherwise nonfederal action. 23 6.5.2 BASIS FOR A GENERAL-PURPOSE TOOL Table 6.3 summarizes the case law criteria described above for determining when a nonfederal project becomes federalized for the purposes of NEPA. These criteria provide the basis for the general-purpose tool presented in Figure 6.1, which can be used by decision-makers in determining whether a nonfederal action has been federalized for the purposes of NEPA. 7 6.5.3 GENERAL-PURPOSE TOOL FOR DETERMINING WHEN NONFEDERAL ACTIONS BECOME FEDERALIZED Consistent with the rule of reason, the logic diagram presented in Figure 6.1 is based on the criteria established in Table 6.3. The tool, developed by the author and an environmental lawyer, is specically designed to provide practitioners and decision-makers with a rigorous and TABLE 6.3 Criteria for Determining When Nonfederal Entities May Become Federalized Would the nonfederal action involve a substantial degree of nancial support by way of a federal contract, grant, loan, or other nancial assistance? Would the nonfederal action be enabled through a federal lease, license, permit, or other entitlement? Would the nonfederal action involve a substantial degree of federal control? Is there continuing federal involvement in a nonfederal action to such an extent that termination or modication of this involvement would terminate or signicantly impact the nonfederal project? Is the federal action substantially interrelated with a nonfederal action to such an extent that “but for” the federal action, the nonfederal action would not take place? • • • • • CRC_7559_CH006.indd 149CRC_7559_CH006.indd 149 1/31/2008 4:34:19 PM1/31/2008 4:34:19 PM Continuing Agency Involvement That Is Modified or Terminated © 2008 by Taylor & Francis Group, LLC 150 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners systematic procedure to determine if a nonfederal action has become federalized, triggering NEPA’s requirements. Although this tool does not totally eliminate the subjectivity inherent in making NEPA determi- nations, it provides a valuable technique for substantially reducing subjectivity. It does not promote for the federal involvement, the nonfederal action would not occur? terminate or significantly affect the nonfederal action? Is there a federal action significantly interrelated to the nonfederal action such that Is there continuing federal involvement such that termination or modification of the involvement would Is there federal involvement that entails a substantial degree of control over how the nonfederal action would be implemented? enables, authorizes, or permits a nonfederal action to occur? contributes substantially to the funding of the nonfederal action? The nonfederal action is not subject to the requirements of NEPA The nonfederal action is subject to NEPA No No No No No Yes Yes Yes Yes Yes FIGURE 6.1 Tool for determining when a nonfederal action is subject to NEPA’s requirements. CRC_7559_CH006.indd 150CRC_7559_CH006.indd 150 1/31/2008 4:34:19 PM1/31/2008 4:34:19 PM © 2008 by Taylor & Francis Group, LLC The Threshold Question: When Is an EIS Required? 151 any degree of decision-making beyond the level already exercised in making such determinations in the rst place; instead, it provides decision-makers with a rigorous, systematic, and defensible approach for reaching such determinations. Because this tool is intended to be used as a general-purpose decision-making tool, it may not cover every conceivable condition. Technical aspects of the case law summarized earlier should thus be considered in responding to each of the tests.* 6.5.3.1 Using the Tool Begin at the top of Figure 6.1 by answering the rst question: “Is there federal involvement that contributes to the funding of the non federal action?” If the response is no, the decision-maker continues down through the remaining tests. A “no” answer to all of the tests supports a decision that the nonfederal action is not subject to the requirements of NEPA. A “yes” answer to any single test is sufcient to support a decision that the nonfederal action is subject to the require- ments of NEPA. 6.6 ACTIONS As described in more detail in Chapter 9, actions include “… projects and programs entirely or partly nanced, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals” (§ 1508.18[a]). They also include activities that are regulated, assisted by, or require the approval of a federal agency. These actions include both new and continuing activities. 24 A brief description of each of these categories is presented in Table 6.4. Taken together, these categories are sometimes referred to as the “4 Ps.” The Regulations specically call out only two circumstances where federal actions are not sub- ject to the requirements of NEPA. For the purposes of NEPA (§ 1508.18), these were funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, with no federal agency control over the subsequent use of such funds (note: this caveat is no longer applicable); bringing judicial or administrative, civil or criminal enforcement actions. * Case law varies among various judicial circuits and courts. Specic questions should be referred to legal counsel. • • TABLE 6.4 Four Categories of Federal Actions Adoption of a Policy. This category involves actions such as issuing rules, regulations, and interpretations. Adoption of a policy may also involve entering into treaties and international conventions or agreements, or issuing formal docu- ments establishing an agency’s policies that will result in or substantially alter agency programs. Adoption of Formal Plans. Adoption of formal plans may include activities such as issuing ofcial documents that guide or prescribe alternative uses of federal resources and provide the basis for future agency actions. Adoption of Programs. This category includes actions such as adopting a group of concerted actions to implement a specic policy or plan. Systematic and connected agency decisions allocating agency resources to implement a specic statutory program or executive directive also fall under the heading of agency programs. Approval of Specic Projects. Adoption of specic projects may include actions such as construction or management activities located in a dened geographic area. Projects also include actions such as approving permits and other regula- tory decisions as well as federal and federally assisted activities. • • • • CRC_7559_CH006.indd 151CRC_7559_CH006.indd 151 1/31/2008 4:34:19 PM1/31/2008 4:34:19 PM © 2008 by Taylor & Francis Group, LLC 152 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 6.6.1 INACTION Does NEPA apply to nonactions? This question was addressed in a case where a federal agency had the capability to inhibit a nonfederal action but did not exercise this authority. 25 When challenged, the court concluded that NEPA does not apply where “… an agency has done nothing more than fail to prevent the other party’s action from occurring …” In general, an action is not subject to the requirements of NEPA when a federal agency has an option to act and decides not to do so. However, where a federal agency has a mandatory responsi- bility to act but fails to do so, this failure to act may constitute an action subject to NEPA. 26 6.6.2 APPLICABILITY OF NEPA TO INTERNATIONAL ACTIONS Federal actions conducted outside the borders of the United States are referred to as extraterritorial actions. Common examples of extraterritorial actions include federal assistance in the construction of highways or dams and licenses for the export of nuclear fuel. The applicability of NEPA to extra- territorial actions is complex and has been the subject of ongoing controversy. It involves the consideration of two separate issues. Specically, does NEPA extend to (1) the global commons or (2) the domain of foreign nations? The global commons is generally understood to include such portions of the earth as the oceans, Antarctica, and the upper atmosphere that are understood to be held in common by all nations. The Act does not place either explicit or implicit limits on the applicability of NEPA to activities conducted outside U.S. borders. 27 For this reason, NEPA has been interpreted by some to extend over U.S. involvement in international actions. This interpretation has its basis partly in the term human environment that is used in Section 102 of NEPA. As used in this context, the term human environment does not appear to limit the requirements of NEPA to the geographical borders of the United States. Moreover, Section 102(2)(f) places specic responsibilities on federal agencies to recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment. Professor Lynton Keith Caldwell, the principal father of NEPA, has indicated that applicabil- ity of the Act was intended to include federal actions outside the boundaries of the United States. 28 Because of potential ramications on U.S. foreign policy, some agencies, including the U.S. State Department, have raised objections to this interpretation and have been reluctant to apply NEPA to activities beyond U.S. borders. 29 6.6.2.1 Executive Order In addressing this issue, President Carter issued an executive order providing direction for applying NEPA to extraterritorial actions. 30 This order, drafted in consultation with the CEQ and the U.S. State Department, discusses the scope of NEPA’s applicability to international activities and pro- vides direction and procedures for implementing its requirements. In the author’s opinion, this order is confusing and poorly crafted. Surprisingly, it focuses on the preparation of EAs, dening only two cases where an EIS is applicable to extraterritorial actions. 31 Under this order, preparation of an EIS is required for major federal actions signicantly affect- ing the environment of the global commons. However, this order exempts an EIS from having to address impacts on the environment of a foreign nation. 6.6.2.2 Transboundary Effects The CEQ has developed guidance for assessing the effects of proposals within the United States as well as its territories and possessions that may have transboundary effects and affect another CRC_7559_CH006.indd 152CRC_7559_CH006.indd 152 1/31/2008 4:34:19 PM1/31/2008 4:34:19 PM © 2008 by Taylor & Francis Group, LLC The Threshold Question: When Is an EIS Required? 153 country’s environment. 32 While this guidance was developed primarily in the context of negotia- tions undertaken with the governments of Mexico and Canada to develop an agreement on trans- boundary environmental impact assessment in North America, the guidance pertains to all federal agency actions that are normally subject to NEPA, whether covered by an international agreement or not. CEQ’s guidance does not expand the range of actions to which NEPA currently applies, nor does it apply to so-called extraterritorial actions (i.e., U.S. actions that occur in another country or otherwise outside the jurisdiction of the United States). Instead, it pertains only to those pro- posed actions currently covered by NEPA that would take place within the United States and its territories. This guidance is consistent with long-standing principles of international law. Since the Trail Smelter Arbitration of 1905, it has been a customary law that no nation may undertake acts on its territory that will harm the territory of another state. Moreover, this rule of customary law has been recognized as binding in Principle 21 of the Stockholm Declaration on the Human Envi- ronment) and Principle 2 of the 1992 Rio Declaration on Environment and Development. Under these provisions, states have the duty to give notice (including preparation of environmental impact assessments) to others to avert potential harm from the actions they take. Assessing transboundary impacts of federal agency actions that occur in the United States is therefore an appropriate step toward implementing those principles. NEPA case law has reinforced the need to analyze impacts regardless of geographic boundaries within the United States and has also assumed that NEPA requires analysis of federal actions that take place entirely outside the United States but could have environmental effects within the United States. Courts that have addressed impacts across U.S. borders have assumed that the same rule of law applies in a transboundary context. Under CEQ’s guidance, agencies are consequently expected to include analysis of reasonably foreseeable transboundary effects in EAs or EISs prepared for federal actions undertaken within the United States. 6.6.2.3 Case Law As the courts have been less than denitive in their rulings, the issue of extraterritorial actions is somewhat confusing. What some courts appear to be suggesting is that NEPA is applicable to actions occurring in the global commons but not to actions taken within the borders of other sov- ereign nations. Even if this is the intent, few EISs either rigorously consider or evaluate extrater- ritorial actions or transboundary impacts, or effects on the global commons. Six different cases are described below. It is recommended that the reader consult with legal counsel in determining to what extent transboundary issues may need to be addressed in NEPA analysis. U.S. Naval Bases in Japan. In 1993, a district court found that NEPA did not apply to U.S. naval operations at three bases in Japan. The court ruled that an EIS was unnecessary because plausible asser- tions were made that the preparation of an EIS would have impact on the U.S. foreign policy. In the court’s view, foreign policy interests outweighed the benets to be gained from preparing an EIS. 33 Naval Activities in Exclusive Economic Zones. The navy’s littoral warfare advanced develop- ment program (LWAD) involved testing experimental technologies, including active sonar at sea. The scientic community is generally in agreement that high-intensity underwater sounds such as those generated by active sonar can adversely affect whales, dolphins, and other marine life. Most of these tests were conducted on the high seas or within the U.S. exclusive economic zone (EEZ). The EEZ is a zone extending seaward from the boundary of the territorial sea out to a dis- tance of 200 miles. The navy prepared an overseas environmental assessment for every sea test and in each case concluded that the impacts were insignicant. A plaintiff sued seeking to enjoin (stop) the navy from conducting further sea tests until the navy completed a programmatic NEPA document for the LWAD program. 34 The navy argued that CRC_7559_CH006.indd 153CRC_7559_CH006.indd 153 1/31/2008 4:34:20 PM1/31/2008 4:34:20 PM © 2008 by Taylor & Francis Group, LLC 154 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners because some of the tests take place in international waters, NEPA does not apply to activities under the program. The court found that the presumption against the extraterritorial application of U.S. laws did not apply because the planning for the LWAD program occurred entirely within the boundaries of the United States. In the eyes of the court, the federal activity regulated by NEPA is the decision- making process of the agencies, not the underlying project. Because the decision-making process surrounding the approval of sea tests occurred within the United States, the application of NEPA to the LWAD sea tests was not an extraterritorial action. The court distinguished this suit from others with different rulings by concluding that the rationale in other cases for nding that NEPA did not apply to particular actions was that its applica- tion would either have important foreign policy implications or would demonstrate a lack of respect for another nation’s sovereignty. Furthermore, the court reasoned that regarding natural resource conservation and management, “the United States does have substantial, if not exclusive, legislative control of the EEZ.” As a result, the court held “that NEPA applies to federal actions which may affect the environment in the EEZ.” Johnston Atoll. In 1990, a court examined the extraterritorial applicability of NEPA to the removal, transportation, and destruction of chemical weapons stored in the Federal Republic of Germany. Under an international agreement, the Department of the Army undertook a joint plan with the West German Army to remove the weapons and to transport them to Johnston Atoll, a U.S. territory in the Pacic Ocean, for treatment and disposal. The U.S. Army prepared two separate EISs, one for the disposal of the weapons stockpile stored in Germany and the other for construction, operation, and treatment of an incinerator located on Johnston Atoll. Pursuant to Executive Order No. 12114, the army also prepared a global commons EA which analyzed the impacts of the munitions shipment from Germany to Johnston Atoll. How- ever, no NEPA analysis was prepared to evaluate the movement of the munitions within Germany. Plaintiffs led a suit against the U.S. Army to prevent the movement of the munitions to Johnston Atoll on the grounds that the U.S. Army had failed to prepare a comprehensive EIS covering all aspects of transportation and disposal of the German stockpile. 35 The district court concluded that “it is not convinced that NEPA applies extraterritorially to the movement of munitions in Germany or their transoceanic shipment to Johnston Atoll.” While the court recognized that “the language of NEPA indicates that Congress was concerned with the global environment and the worldwide character of environmental problems,” it reasoned that actions taken under NEPA “should be taken ‘consistent with the foreign policy of the United States.’ ” In the court’s words, “Congress intended to encourage federal agencies to consider the global impact of domestic actions and may have intended under certain circumstances for NEPA to apply extraterritorially.” Notwithstanding, the court concluded that NEPA did not apply to actions taken within Germany. In reaching this decision, the court wrote that it “… must take into consideration the foreign policy implications of applying NEPA within a foreign nation’s borders to affect decisions made by the President in a purely foreign policy matter.” Further, the court reasoned that imposing a requirement to assess environmental impacts on actions within Germany would “… encroach on the jurisdiction of Germany to implement a political decision which necessarily involved a delicate balancing of risks to the environment and the public, and the ultimate goal of expeditiously ridding West Germany of obsolete chemical munitions.” With respect to the transoceanic phase of the action, the U.S. Army had prepared an EA pursu- ant to Executive Order No. 12114. On this point, the court wrote that it could not “… conclude, as defendants would suggest, that Executive Order 12114 preempts application of NEPA to all federal agency actions taken outside the United States.…” However, in these particular circumstances, the court was persuaded that NEPA did not require the U.S. Army to consider the global commons portion of the action in the same EIS that covered the Johnston Atoll facility. CRC_7559_CH006.indd 154CRC_7559_CH006.indd 154 1/31/2008 4:34:20 PM1/31/2008 4:34:20 PM © 2008 by Taylor & Francis Group, LLC [...]... local standards (e.g., noise standards) because some local communities have established unrealistic and, in some cases, virtually unattainable standards This being the case, decision-makers may want to address significance © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 06. indd 157 1/31/2008 4:3 4:2 0 PM 158 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 6. 5... CRC_7559_CH0 06. indd 163 1/31/2008 4:3 4:2 2 PM 164 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners • The level or degree of confidence that the agency has in predicting the impact • The information available to the agency that provides a basis for describing the impacts in a manner that is meaningful to the decision-maker • The potential that that the decision-maker will... & Francis Group, LLC CRC_7559_CH0 06. indd 161 1/31/2008 4:3 4:2 1 PM 162 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners relative to the former baseline that had included the bridge It is left to the reader’s professional judgment to determine how these two opinions should be applied 6. 8 AFFECTING An EIS is required to be prepared for major actions significantly affecting... Taylor & Francis Group, LLC CRC_7559_CH0 06. indd 159 1/31/2008 4:3 4:2 1 PM 160 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 6. 6 Additional Significance Factors 1 Multiple Nonsignificant Impacts The degree to which a multiple number of different and substantial but individually nonsignificant impacts affect the environment For example, consider a proposal which... 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners review of the plan does not constitute a major federal action); See also, e.g., National Forest Preservation Group v Butz, 485 F.2d 408 (9th Cir 1973) (federal government exchanged certain park lands for those owned by a private enterprise... F.2d 66 1 (9th Cir 1975) Lockhart v Kenops (CA8, 1991) 927 F.2d 1028 Metropolitan Edison Co v People Against Nuclear Energy (PANE), 460 U.S 766 , 103 S Ct 15 56 (1983) Folgman V M., Guide to National Environmental Policy Act, Section 3.5, 1990 Life of the Land v Brinegar, 485 F.2d 460 , 469 (9th Cir 1973), cert denied, 4 16 U.S 961 (1974) © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 06. indd 166 1/31/2008... California A decade later, however, this project still had not commenced In January 20 06, the Bureau issued a supplemental information report concluding that no substantial change, or significant new information or circumstances, existed that required preparation of a supplemental EIS © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 06. indd 155 1/31/2008 4:3 4:2 0 PM 1 56 NEPA and Environmental Planning: ... Environmental Planning: Tools, Techniques, and Approaches for Practitioners Plaintiffs charged, among other things, that the Bureau violated NEPA by not preparing a supplemental EIS to address alleged significant new information regarding • a wetland in Mexico and its value as habitat for an endangered species; • socioeconomic impacts in Mexicali, Mexico, and across the border in the United States; and • potential... personal communications, April 1994 Environmental Law Handbook, Government Institutes, Inc., 10th ed., Chapter 10 Executive Order No 12114; 44 Fed Reg 1957, 1979 Mandelker D R., NEPA Law and Litigation, 2nd edition, New York, 1992 CEQ, Council on Environmental Quality Guidance on NEPA Analyses for Transboundary Impacts, July 1, 1997 NEPA Coalition of Japan v Aspin, 837 F Supp 466 (D D.C 1993) Natural Resources... Long Island, 30 F.3d 403 (3rd Cir 1994) (where a nonfederal party voluntarily informs a federal agency of its intended activities to ensure that they will comply with law and regulation, and to facilitate the agency’s monitoring of the activities for safety purposes, the agency’s © 2008 by Taylor & Francis Group, LLC CRC_7559_CH0 06. indd 165 1/31/2008 4:3 4:2 2 PM 166 18 19 20 21 22 23 24 25 26 27 28 . CRC_7559_CH0 06. indd 161 CRC_7559_CH0 06. indd 161 1/31/2008 4:3 4:2 1 PM1/31/2008 4:3 4:2 1 PM © 2008 by Taylor & Francis Group, LLC 162 NEPA and Environmental Planning: Tools, Techniques, and Approaches for. evaluated • • • CRC_7559_CH0 06. indd 145CRC_7559_CH0 06. indd 145 1/31/2008 4:3 4:1 8 PM1/31/2008 4:3 4:1 8 PM © 2008 by Taylor & Francis Group, LLC 1 46 NEPA and Environmental Planning: Tools, Techniques, and Approaches for. speculative: 54 CRC_7559_CH0 06. indd 163 CRC_7559_CH0 06. indd 163 1/31/2008 4:3 4:2 2 PM1/31/2008 4:3 4:2 2 PM © 2008 by Taylor & Francis Group, LLC 164 NEPA and Environmental Planning: Tools, Techniques,