231 9 The Scope of Analysis The purpose of scoping is to obtain input from both the lead agency and outside entities regarding the range of actions, impacts, and alternatives to be considered. This enables the subsequent analysis to be sharply focused on issues of genuine concern. A well-orchestrated scoping process provides agencies with a particularly powerful tool for achieving this goal. Just as important, however, is its the analysis. The author refers to this objective as “de-scoping.” The sufciency-test tool presented in Section 2.7 is a systematic and practical tool that can assist practitioners in determining the level of detail appropriate for a given analysis. 9.1 DE-EMPHASIZING THE SCOPE OF ANALYSIS To the extent feasible, the analysis should be integrated with all other permits, agreements, plans, and policies relating to it so that processes run concurrently rather than consecutively. Scoping can be instrumental in identifying such requirements. Consistent with the rule of reason, the author has developed a set of criteria for assisting analysts in limiting the scope of an analysis (Table 9.1). 9.2 MANAGING PUBLIC SCOPING MEETINGS Never assume a casual attitude toward public hearings and scoping meetings. This warning is given since the people who attend them, whether they are local homeowners, employees concerned with their jobs, or members of special interest groups, are usually the ones with the most vested interest in the outcome. They are also often well educated and technically sophisticated. This tends to be true especially of activists representing special interests. Attendance at the meetings also tends to increase with the level of controversy involved. In cases where this is expected to be high, managers may want to start off by holding a dry run that includes a question-and-answer session and perhaps even mock-media interviews. To fully appreciate public sentiment, the lead agency’s decision-maker should attend all scoping meetings held. As explained in the next section, the agency may nd it advantageous to obtain the services of an independent and neutral moderator because the presence of such a person can often mitigate public hostility, particularly in circumstances where the agency or proposed project may lack credibility. The facilitator should, of course, be thoroughly briefed in advance on all aspects of the proposal. Attendees often have the misconception that the scoping meeting is being held to make a deci- sion about the proposal. An independent facilitator can dispel such misconceptions by explaining clearly at the outset that the purpose of the scoping meeting is only to elicit input and comments. 9.3 ACTIONS, ALTERNATIVES, AND EFFECTS As detailed in the Council on Environmental Quality’s (CEQ) implementing regulations (Regula- tions), an environmental impact statement (EIS) involves consideration of three basic concepts: Actions Alternatives Effects • • • CRC_7559_CH009.indd 231CRC_7559_CH009.indd 231 1/31/2008 4:43:51 PM1/31/2008 4:43:51 PM use to de-emphasize insignicant issues or irrelevant details so as to efficiently narrow the scope of © 2008 by Taylor & Francis Group, LLC 232 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Together, these concepts delimit the scope of analysis (§ 1508.25). As indicated in Table 9.2, each of these concepts, in turn, is composed of three additional components. The scope of the analy- sis, therefore, refers to the range of actions, alternatives, or impacts to be reviewed. The following sections describe each of these in more detail. 9.4 THREE TYPES OF ACTIONS The three types of actions dened under the National Environmental Policy Act (NEPA) are described in the following sections. 9.4.1 CONNECTED ACTIONS Actions are said to be connected when they are related closely enough to be discussed in the same NEPA analysis. Actions are said to be connected if they (§ 1508.25[a][1]) i. automatically trigger other actions that may require the preparation of EISs, ii. cannot or will not proceed unless other actions are taken either before them or simultaneously, and iii. are interdependent parts of a larger action and thus dependent on that action for their justication. A commonly cited example of a connected action involves a case in which an environmental assessment (EA) was prepared for a proposal involving the construction of a bridge to an island. TABLE 9.2 Three Types of Actions, Alternatives, and Effects Three Types of Actions 1. Connected actions 2. Cumulative actions 3. Similar actions Three Types of Alternatives 1. No-action alternative 2. Other reasonable courses of action 3. Mitigation measures (not in the proposed action) Three Types of Impacts 1. Direct impacts 2. Indirect impacts 3. Cumulative impacts TABLE 9.1 Criteria Useful in Limiting the Scope of the Analysis • Is the issue potentially signicant? If not, provide only enough analysis to demonstrate that the issue is not signicant. • Would additional analysis further the decision-making process? If not, analysts should consider whether the inclusion of any further analysis or information is warranted. • Is the issue ripe for an analysis and a decision? If not, the agency should consider eliminating it from the analysis. Cau- tion must be exercised in making this determination. • Are the impacts of the action reasonably foreseeable? If not, the need to discuss them may be unjustied. CRC_7559_CH009.indd 232CRC_7559_CH009.indd 232 1/31/2008 4:43:52 PM1/31/2008 4:43:52 PM © 2008 by Taylor & Francis Group, LLC The Scope of Analysis 233 Opponents challenged it, arguing that the analysis did not adequately address the impacts that would result from the subsequent opening of the island to large-scale development (the connected actions). In response, the court sided with the opposition, concluding that an EIS was indeed neces- sary to evaluate the impacts. 1 A second example involves a Hawaiian Geothermal Project (HGP) comprised of four phases: (1) exploring and testing geothermal reservoirs, (2) researching the feasibility of transmitting power via underwater cables, (3) drilling exploration wells, and (4) constructing geothermal power plants. The Department of Energy (DOE) provided funds for the rst two phases. In 1988, when Congress appropriated money for Phase III, a congressional conference report stated that because this phase was “research,” it was not a major federal action subject to NEPA, but the DOE should earmark some of the funds to prepare an EA or an EIS later for the project. Plaintiffs then sued the DOE for not preparing an EIS immediately. The court agreed rejecting Congress’ characterization and holding that Phases III and IV were in fact connected actions that needed to be considered together in a single EIS. The court further held that the “research work” contemplated by Phase III “alone easily satises the statutory standards for ‘major federal action’ based simply on the extent of fed- eral funding.” 2 9.4.2 CUMULATIVE ACTIONS Cumulative actions involve activities that (§ 1508.25[a][2]) … when considered along with other proposed actions have cumulatively signicant impacts and should, therefore be evaluated within the same analysis. 9.4.2.1 Cumulative Actions versus Cumulative Impacts As illustrated by the following case, the reader should note that the concept of cumulative impacts can easily be confused with the related concepts of connected, cumulative, and similar actions. It is important to understand the difference because some courts have reached decisions based on the distinction between these two terms. Confusing Connected Actions with Cumulative Actions. In one case, a court upheld a license issued by the Federal Energy Regulatory Commission (FERC) for the rst phase of a hydroelec- tric plant. The EIS prepared for the project looked only at the environmental impacts of Phase I, although construction of Phase II, while not inevitable, was reasonably foreseeable. The plaintiffs challenged this, asserting that FERC had not assessed the potential impacts of Phase II before deciding to approve Phase I. 3 In this case, the court rejected the plaintiffs’ assertion, reasoning that Phase II had not yet been proposed and that “NEPA merely requires an agency to consider all other proposed actions that may, along with the proposed action at issue, have a cumulative [effect].” This appears to be an example where the court confused the requirement to consider all con- nected or cumulative actions together in the same comprehensive EIS (§ 1508.25[a]) with the requirement to assess the cumulative impacts of the proposal and other reasonably foreseeable future actions (see §§ 1508.7, 1508.8, and 1508.25[c]). As the court noted, only actual proposals as dened in the Regulations (see § 1508.23) need to be considered together in a single EIS, but once the scope of the EIS has been determined, the agency is required to look at the cumulative impacts of other past, present, and reasonably foreseeable future actions (§ 1508.7). Army Corps Case. In another case, the Army Corps was sued for its decision to prepare an EA on Section 404 permit to ll in a wetland area for a development project. 4 By all accounts, although there were plans for future development, these were not yet being actively evaluated by the Corps. Further- more, it had already been acknowledged that the proposal would not result in a signicant impact. In ruling for the Corps, the court drew a distinction between the requirements to analyze cumulative actions and cumulative impacts. With respect to the former, the court noted that the CRC_7559_CH009.indd 233CRC_7559_CH009.indd 233 1/31/2008 4:43:52 PM1/31/2008 4:43:52 PM © 2008 by Taylor & Francis Group, LLC 234 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Regulations require connected, cumulative, and similar actions to be considered together in the same EIS. Moreover, proposals that are subject to consideration and that are functionally or eco- nomically related to each other must also be considered in a single EIS. As dened in the Regulations, only actual proposals are considered sufciently related to require evaluation in a single NEPA document (§ 1508.23); thus, only proposals that are ready for decision, for example, several Section 404 permits pending before the Army Corps in one geographic region, need to be evaluated in a single analysis. In contrast, the obligation to address cumulative impacts in a single EIS is not limited to actual proposals. In other words, with respect to cumulative impacts the court noted that the impacts were not limited to those from actual proposals but also had to include impacts from actions merely being contemplated (i.e., not yet ripe for decision). However, in this case the court noted that contemplated actions must be “reasonably foreseeable” in the sense that they are not speculative and not in the distant future. 9.4.3 SIMILAR ACTIONS Similar actions encompass activities that (1508.25[a][3]) … when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alterna- tives to such actions is to treat them in a single impact statement (emphasis added). 9.4.4 CATEGORIES OF FEDERAL ACTIONS With respect to NEPA, federal actions tend to fall into one of the four broad categories (§ 1508.18[b]): Policies Plans Programs Projects These four types of actions are sometimes referred to as the “4 Ps.” 5 Each of these categories is discussed below. 9.4.4.1 Policies This rst category involves the adoption of new policies or regulations that often have far-reach- ing environmental implications. Other actions falling under this category include the adop- tion of rules and regulations related to treaties and international conventions or agreements (§ 1508.18[b][2]). During informal rule making, a draft EIS is expected to accompany the proposed rule (§ 1502.5[d]). 9.4.4.2 Plans Actions may involve adoption of ofcial documents that guide or prescribe alternative uses of fed- eral resources and on which future agency actions will be based. For example, the adoption of a plan for managing a national forest (§ 1508.18[b][2]). 9.4.4.3 Programs An EIS may be prepared and is sometimes required for broad federal actions such as the adoption of new agency programs or regulations (§ 1508.18[b][3]). Agencies must prepare EISs that are relevant • • • • CRC_7559_CH009.indd 234CRC_7559_CH009.indd 234 1/31/2008 4:43:52 PM1/31/2008 4:43:52 PM © 2008 by Taylor & Francis Group, LLC The Scope of Analysis 235 to policy and are timed to coincide with meaningful points in agency planning and decision-making (§ 1502.4[b]). 9.4.4.4 Projects Federal actions falling under this category include approval of specic projects such as construc- tion, operation, or management activities within a dened geographic area. Such projects include actions involving the approval of a permit or other regulatory decision as well as federal and feder- ally assisted activities (§ 1508.18[b][4]). 9.4.5 SEGMENTATION The term “segmentation” refers to the process of breaking an activity into smaller activities that are then analyzed individually under separate NEPA analyses. This practice can dramatically reduce the chance that the overall effect will be deemed signicant, requiring the preparation of an EIS. The Regulations state (§ 1502.4[a]) Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement Furthermore, the Regulations add (§ 1508.27[b][7]) … signicance cannot be avoided by … by breaking it down into small component parts. 9.4.5.1 Case Law In one case, a district court held that the Bureau of Land Management (BLM) improperly violated NEPA by segmenting its analysis of an oil pipeline project from New Mexico to Utah. 6 The two pipelines were originally proposed as one project. The court concluded that the pipeline segment did not have independent utility from another proposed pipeline project between Texas and New Mexico. The court found that the BLM had acted arbitrarily in deciding that the two projects were not connected actions. In another case, two EAs were prepared for a proposed hotel or casino on an Indian reserva- tion and an interchange and access road connecting the reservation to a highway. The district court held that the decision to segment the review into two EAs did not violate NEPA. In this case, the two EAs were prepared because of jurisdictional considerations. Additionally, the interchange EA incorporated the casino EA by reference and considered the cumulative impacts of the project as a whole. The court also found that the EA adequately addressed potential environmental impacts and reasonably concluded that the impacts would not be signicant (i.e., an EIS was not required). 7 9.5 THREE TYPES OF ALTERNATIVES An alternative that is actually analyzed, in addition to simply being identied as a reasonable alter- native, is often referred to as an “analyzed alternative.” The number of analyzed alternatives is generally smaller than the range of reasonable alternatives. The Regulations state the following with respect to the ability to make informed decisions: Section on alternatives provides “a clear basis for choice among options by the decision-maker and the public” (§ 1502.14). EIS “shall inform decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts” (§ 1502.1). The following sections describe the three types of actions dened in the Regulations. • • CRC_7559_CH009.indd 235CRC_7559_CH009.indd 235 1/31/2008 4:43:52 PM1/31/2008 4:43:52 PM © 2008 by Taylor & Francis Group, LLC 236 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 9.5.1 NO-ACTION ALTERNATIVE An EIS analysis must include the alternative of taking no action (§ 1502.14[d]). A discussion of the no-action alternative serves two purposes: First, this requirement forces decision-makers to seriously consider the possibility of not moving ahead with any action. Second, it provides the only reliable baseline against which the impacts of pursuing a par- ticular action may be compared with the consequences of taking no action. The no-action alternative must normally be evaluated in an EIS even if the agency has been commanded by Congress or is under a court order to pursue a particular course of action. This is because, as stated above, it provides a baseline for comparing the environmental impacts of pursu- ing an action. 8 9.5.1.1 The No-Action Alternative versus the Affected Environment The concepts of the no-action alternative and the affected environment are frequently confused. At times, an erroneous premise is made in which the impacts of the no-action alternative are equated to a description of the affected environment, but in fact these are different concepts that serve differ- ent purposes. The affected environment describes the setting within which a proposed action would take place or affect. It constitutes a snapshot of present conditions of resources and the geographic area that could potentially be affected by a proposed action and its alternatives. Thus, the affected environment denes an environmental baseline for assessing potential impacts of a proposal. In contrast, the impacts of the no-action alternative provide a different environmental baseline that allows both decision-makers and the public to compare future impacts of taking no action against the corresponding effects of the analyzed alternatives. Although the no-action alternative is often described as representing the status quo, this does not mean that taking no action can be regarded as a static condition. The potential impacts of the no-action alternative are estimated from a projection of current conditions into the future, under the inuence of activities that would continue and of those that are based on decisions made previously. To facilitate a meaningful com- parison, the time period used to assess the impacts of the analyzed no-action alternative must be comparable to the time period used to analyze the impacts of the analyzed alternatives (including the proposed action). For example, discussion of the air quality of an affected environment might describe its general climate, wind, temperature, rainfall, ambient concentrations of air pollutants, and current emissions and emission rates. This discussion would also, as appropriate, identify existing air quality permits and specify the attainment status for criteria pollutants. In contrast, analysis of the no-action alternative might involve projecting the future site emis- sions and emission rates if a proposed action (or alternative) did not take place. The impact assess- ment would also identify the impacts of such future emissions vis-á-vis compliance with applicable air quality regulations and permits, the attainment status for criteria pollutants, and their effects on human health and the environment. Over time, the air quality conditions for the affected environ- ment baseline could be very different from that of no action. 9.5.1.2 Describing the No-Action Alternative A thorough examination of the no-action alternative may help an agency gain public acceptance for a proposal that might otherwise be unpopular, for example, a community landll that is nearly lled to capacity. Such projects tend to be unpopular and controversial, but what would be the • • CRC_7559_CH009.indd 236CRC_7559_CH009.indd 236 1/31/2008 4:43:52 PM1/31/2008 4:43:52 PM © 2008 by Taylor & Francis Group, LLC The Scope of Analysis 237 environmental and socioeconomic impacts if no action was taken to resolve the problem? A proper analysis of the no-action alternative could involve projecting the impacts of doing nothing into able replacement for the landll. Socioeconomic experts could be consulted to identify the likely responses of both individuals and the community at large if no viable replacement was provided. For instance, some people might dig holes in their backyards to dispose of their garbage. Others might dump garbage along roadsides or in nearby wilderness areas. The resulting impacts of taking no action could thus be very signicant. Project proponents can often gain public acceptance simply by presenting a clear picture of what the potential consequences could be of taking no action. 9.5.2 REASONABLE ALTERNATIVES As viewed by the CEQ, reasonable alternatives are those considered to be practical and feasible from both technical and economic standpoints. Thus, alternatives that a particular individual or group nd desirable but which are neither technically or economically practical would not lie within the range of reasonable alternatives requiring consideration. 9 In one case, an EIS was found to be inadequate partly because it had improperly eliminated a project alternative based on an inadequate estimate of its cost. 10 The range of alternatives must encompass those that will be or could be considered by the decision- maker. Moreover, agencies are expected to undertake a rigorous exploration and an objective evalua- tion of all reasonable alternatives, including those that avoid or minimize adverse impacts: Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briey discuss the reasons for their having been eliminated (§ 1502.14[a]). Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize the adverse effects of these actions on the quality of the human environment (§ 1500.2[e]). The range of alternatives discussed in environmental impact statements shall encompass those to be considered by the ultimate agency decision-maker (§ 1505.1[e], § 1502.2[e]). It is important to evaluate a broad range of alternatives in an EIS or an EA to provide respon- sible decision-makers with the exibility to respond to changing circumstances. Through close coordination with project planners and engineers, document preparers can ensure that an EIS or an EA covers new ideas that may emerge on better, cheaper, and faster ways to accomplish the agency’s purpose and need for action. The option of alternative locations should not be overlooked. This is especially true in those instances where actions may take place in environmentally sensitive areas. Where feasible, good professional practice dictates and the courts may mandate that alternative locations be considered. During the public review period for the draft Regulations, commenters voiced concern that the phrase “all reasonable alternatives” should be narrowed down because it was unduly broad. In rejecting these comments, the CEQ stated that the phrase was not meant to be interpreted to mean “that an innite or unreasonable number of alternatives be analyzed.” 11 This interpretation has been supported in case law. In one example, a court concluded that an EIS cannot be deemed inadequate simply because the agency failed to consider every conceivable alternative. Rather, as a process evolves, agencies may consider “… more or fewer alternatives as they become better known and understood.” 12 Consistent with the philosophy of a sliding-scale (see Chapter 2), the number of alternatives that are eventually analyzed may vary with the complexity and potential of the particular project to cause environmental degradation. • • • CRC_7559_CH009.indd 237CRC_7559_CH009.indd 237 1/31/2008 4:43:53 PM1/31/2008 4:43:53 PM the future. For example, people would lack a sufficient garbage disposal site without a reason- © 2008 by Taylor & Francis Group, LLC 238 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 9.5.2.1 Dismissing Unreasonable Alternatives Consistent with the rule of reason, agencies are not expected to use a crystal-ball approach in performing their analyses. For example, some courts have ruled that agencies are not required to examine alternatives that are considered remote or speculative. 13 Agencies are required, however, to consider alternatives outside their immediate control. While these alternatives are normally subject to NEPA’s requirements, some courts have ruled that those outside an agency’s “full control” are not. For example, an EIS prepared for an antimissile defense system would probably not have to look at the alternative of eliminating nuclear weapons under an international disarmament treaty because in this instance “full control” by the agency would not be possible. Nonetheless, caution should always be exercised before dismissing alternatives since all EISs must explain briey why certain alternatives were determined to be unreasonable and there- fore eliminated from detailed study (§ 1502.14[a]). 14 While this direction does not explicitly extend to EAs, professional practice dictates that the same procedure be followed in their case. 9.5.2.2 Alternatives beyond an Agency’s Control A potential conict with a local or federal law does not necessarily render an alternative unreason- able, although such conicts must be considered in its evaluation (§ 1506.2[d]). 9 NEPA may be triggered by the act of granting a permit, approval, or authorization to a private applicant. In such cases, the CEQ has stated that an EIS must evaluate all reasonable alternatives, even if carrying out them is beyond the capability of the applicant. 9 This direction applies equally to situations where reasonable alternatives may lie outside the legal jurisdiction of an agency (§ 1502.14[c]). 15 For instance, an agency may propose the construc- tion of a new road. One of the reasonable routes suggested may pass through an area that is con- trolled by a local agency, thus requiring a land use permit enabling such development. Although implementing such an alternative may lie beyond the jurisdiction of the federal agency, it must nonetheless be considered in the analysis. Another circumstance involves consideration of those alternatives that are outside the scope of what Congress may have authorized or funded. The rationale behind this requirement is that analyz- ing such alternatives may provide a sound basis that can inform Congress of the need to reconsider its authorization to support their implementation or to modify funding (§ 1500.1[a]). 9 In such cases, the agency should clearly explain why the alternative has not been selected or why the law should be changed so that it would be able to pursue that alternative. 9.5.2.3 Court Direction on Preparing Alternatives In the case of an EIS prepared for oil and gas drilling, the Circuit Court of the District of Columbia provided the following direction with respect to the evaluation of alternatives: 16 Agency must look at reasonable alternatives, but this is not limited solely to the measures the agency itself can adopt. While an agency may not have the authority to undertake certain alternatives (such as the elimination of oil import quotas), such actions do fall within the purview of Congress and the president who are the recipients of the document. An EIS, there- fore, is not prepared only for the agency’s purposes but for the guidance of others. For this reason, it must provide those parties with information regarding the probable environmental effects of both the proposal and its alternatives for their consideration. Discussion of alternatives need not be exhaustive. What is required is information sufcient to permit a reasoned choice of alternatives so far as the environmental aspects are con- cerned. Nor is it appropriate to disregard alternatives merely because they do not offer a complete solution to the problem. Discussion of reasonable alternatives does not require a crystal-ball inquiry. The “rule of reason” must be applied. • • • CRC_7559_CH009.indd 238CRC_7559_CH009.indd 238 1/31/2008 4:43:53 PM1/31/2008 4:43:53 PM © 2008 by Taylor & Francis Group, LLC The Scope of Analysis 239 With regard to the rst of the bulleted paragraphs listed above, it should be noted that some courts have provided different directions. 9.5.2.4 Defining a Range of Reasonable Alternatives The range of alternatives should include all those requiring objective evaluation and rigorous exploration as well as any that have been eliminated from detailed study. 14 Determining a range of reasonable alternatives may involve identifying options as diverse as the consideration of using alternative sites, modes of transportation, and technologies. The alternatives considered by decision- makers must be encompassed by the “… range of alternatives …” described in the NEPA analysis (§ 1502.2[e], § 1505.1[e]). There are occasions when the range of reasonable alternatives may indeed appear to be virtually unlimited. For example, a proposal for logging a forested area could involve a very large number of potential courses of action to ascertain the impacts of logging anywhere from 0% to 100% of the site. However, an EIS only needs to consider a reasonable number of scenarios that serve to cover the full spectrum of possibilities. An adequate analysis might therefore be limited to a range of alternatives that would analyze the different impacts resulting from developing or cutting 1%, 10%, 30%, 50%, 70%, 90%, or 100% of the forest. 17 9.5.2.5 Describing Alternatives All reasonable alternatives listed in an EIS must be given substantial attention. Descriptions must contain sufcient detail to provide analysts with the information they need to perform an effective identication and assessment of potential impacts. The alternatives should be clearly described so that decision-makers have a thorough understanding of what could take place once the project is under way. Where possible, alternatives should be described and evaluated throughout their life cycle (site preparation, construction, operation, and closure). Any private actions enabled by the federal agency concerned such as issuing grants and contracts for various activities should also be clearly described. In the process of identifying potential alternatives, analysts should not forget options such as leasing a service or facility from the private sector since these are often not only reasonable, but also very economical courses of action. Moreover, if an agency is able to avoid having to construct a new facility, the environmental impacts may be reduced. 9.5.2.6 Evaluating Hypothetical Scenarios In 2003, the BLM completed an EIS on its plan to lease up to 8.8 million acres of federal land in northern Alaska for oil and gas exploration. The EIS investigated ve alternatives, including that of taking no action. The four action alternatives considered a spectrum ranging from making 47–100% of the BLM-administered lands available for leasing and assumed different types of management actions and mitigation measures. With respect to potential environmental impacts associated with drilling, the BLM did not analyze specic parcels because, the agency contended, it had no way of knowing which areas, if any, subsequent exploration would nd suitable for drilling. Instead, the analysis considered two hypothetical scenarios: one assuming development of the total available resources and the second assuming exploration of half the available parcels but no actual development. Plaintiffs challenged the adequacy of the EIS for failing to include an analysis of site-specic environmental impacts. 18 On July 26, 2006, the U.S. Court of Appeals for the Ninth Circuit upheld a lower-court decision when it agreed with BLM that “… no such drilling site analysis is pos- sible until it is known where the drilling is likely to take place, and that can be known only after leasing and exploration.” Additionally, the court concluded that environmental consequences at specic sites can be assessed in connection with later applications for drilling permits at those sites. CRC_7559_CH009.indd 239CRC_7559_CH009.indd 239 1/31/2008 4:43:53 PM1/31/2008 4:43:53 PM © 2008 by Taylor & Francis Group, LLC 240 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners It is recommended that the reader consult legal counsel in determining to what extent an analysis of hypothetical sites may be appropriately used in NEPA analyses. 9.5.3 MITIGATION MEASURES Courts have long held that mitigation measures must be discussed in EISs. In 1987 the Ninth Circuit Court of Appeals went one step further, ruling that NEPA imposed a substantive requirement to mitigate adverse impacts. 19 In 1989, however, the Supreme Court reversed this decision. The descriptions of alternatives should clearly indicate and describe any mitigation measures that are evaluated during their analysis and provide sufcient detail to enable analysts to rate their effectiveness. There are instances when some mitigation measures may be common to a proposed action and to all of its analyzed alternatives. In these cases, for brevity’s sake, it is suggested that such common measures be placed together in a separate section. 9.6 THREE TYPES OF IMPACTS As witnessed earlier, the Regulations recognize three categories of impacts. These are explained in detail in the following sections. 9.6.1 DIRECT IMPACTS Direct impacts are those effects that occur at the same time and place as the action producing them (§ 1508.8[a]) and are directly attributable to that action. Direct impacts are generally easier to iden- tify and evaluate than indirect or cumulative effects. 9.6.2 INDIRECT IMPACTS Indirect impacts, or secondary effects as they are sometimes called, are not directly linked to the original action but are removed from it by distance or time (§ 1508.8[b]). Indirect effects often include socioeconomic impacts such as community growth and changes in population pattern as a result of implementing a proposed action (§ 1508.8). A typical example involves the effects resulting from residential and commercial development that will be triggered by the construction of a new highway off ramp. The impacts of this future devel- opment may occur well after the ramp has been built and at some distance from the highway itself. Because indirect impacts are frequently more difcult to identify and evaluate than direct impacts, it should come as no surprise that they are often given inadequate attention. This is not only unfortunate but potentially illegal, given the fact that the effects of indirect impacts ultimately often far exceed those of direct impacts. 9.6.3 CUMULATIVE IMPACTS The science of cumulative impact assessment (CIA) is, at this point, still an emerging discipline. Practitioners frequently complain of being overwhelmed by its scoping and analytical details. The key to performing a successful CIA is to focus on important cumulative issues, recognizing that a better decision, not a perfect analysis, is the ultimate goal. Cumulatively signicant impacts may result from actions that are minor when analyzed indi- vidually but signicant when viewed collectively. A signicant cumulative impact may occur even if an individual action takes place over a long period of time. The following denition explains how cumulative impacts can include the effects of both federal and nonfederal actions (§ 1508.7): … 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 regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively signicant actions taking place over a period of time. CRC_7559_CH009.indd 240CRC_7559_CH009.indd 240 1/31/2008 4:43:53 PM1/31/2008 4:43:53 PM © 2008 by Taylor & Francis Group, LLC [...]... (9th Cir 197 3) 55 Alaska v Andrus, 580 F.2d 465 (D.C Cir 197 8), vacated in part as moot, 4 39 U.S 92 2 ( 197 8) 56 Olmsted Citizens for a Better Community v United States, 793 F.2d 201 (8th Cir 198 6) 57 Thompson J G and Williams G., Social assessment: roles for practitioners and the need for stronger mandates, Impact Assessment Bulletin, 10(3), 199 2 58 Saylor R E and McCold L N., Bounding analyses in NEPA. .. Group, LLC CRC_75 59_ CH0 09. indd 2 49 1/31/2008 4:4 3:5 5 PM 250 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners Consider, for example, a situation where an agency needs to take an action that might result in the death of a certain species of fish Assume that the fish and their habitat have already sustained a cumulatively significant decrease in their numbers and that the... Taylor & Francis Group, LLC CRC_75 59_ CH0 09. indd 245 1/31/2008 4:4 3:5 4 PM 246 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners TABLE 9. 5 Supreme Court Direction on Performing a Cumulative Impact Analysis • • • • • Identify the potential impacts expected to occur within the affected area Address other past, proposed, and reasonably foreseeable future actions that have... potential consequences Key factors to consider in applying the sliding-scale principle to accident analyses are presented in Section 10.6 © 2008 by Taylor & Francis Group, LLC CRC_75 59_ CH0 09. indd 257 1/31/2008 4:4 3:5 7 PM 258 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners PROBLEMS 1 2 3 4 5 6 7 8 9 10 With respect to the concept of scope, what are the three types... direct and indirect impacts of the new proposal are virtually innocuous? And would there even be tangible alternatives to refurbishing the trail? © 2008 by Taylor & Francis Group, LLC CRC_75 59_ CH0 09. indd 247 1/31/2008 4:4 3:5 5 PM 248 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners As witnessed in the aforementioned regulatory citations, a strict interpretation of the Regulations... proposed, and future actions, and the resulting cumulative effect Table 9. 3 shows how such tables can be constructed This table compares a narrative versus a quantitative description of the cumulative effects associated with an increase in SO2 concentrations © 2008 by Taylor & Francis Group, LLC CRC_75 59_ CH0 09. indd 243 1/31/2008 4:4 3:5 4 PM 244 NEPA and Environmental Planning: Tools, Techniques, and Approaches. .. (D.C Cir 197 2) 17 CEQ, 40 Questions, Question No 1b 18 Northern Alaska Environmental Center et al v U.S Bureau of Land Management et al 19 Mandelker D R., NEPA alive and well: the Supreme Court takes two, Environmental Law Reporter, September 198 9 20 CEQ, Considering Cumulative Effects Under the National Environmental Policy Act, p 1, January 199 7 21 Odum W E., Environmental degradation and the tyranny... Francis Group, LLC CRC_75 59_ CH0 09. indd 255 1/31/2008 4:4 3:5 6 PM 256 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners halting community development.56 The court reasoned that these impacts would not result from the physical changes created by the proposed action but instead from social changes brought about by the change in the use of the facility and the types of people... evaluated in a NEPA analysis, Environmental Practice—The Journal of the National Association of Environmental Professionals, August 199 9 61 Eccleston C H., Effective Environmental Assessments: How to Manage and Prepare NEPA EAs, Lewis Publishers, Boca Raton, FL, 2001 62 Florida Coalition v Bush (U.S.D.C 198 9) © 2008 by Taylor & Francis Group, LLC CRC_75 59_ CH0 09. indd 2 59 1/31/2008 4:4 3:5 7 PM ... F.3d 13 79 80 30 Kern, 284 F.3d 1075 (quoting Muckleshoot Indian Tribe [quoting Muckleshoot Indian Tribe v United States Forest Serv., 177 F.3d 800, 810 {9th Cir 199 9}]) 31 Kleepe v Sierra Club, 427 U.S 390 , 197 6 32 Sierra Club v Watkins, 808 F Supp 852 ( 199 1) 33 Fritiofson v Alexander 772 F.2d 1225 (CA5, 198 5) 34 Thomas v Peterson, 753 F.2d 754 (9th Cir 198 5) 35 Kleppe, 427 U.S at 414 36 Grand Canyon . CRC_75 59_ CH0 09. indd 233CRC_75 59_ CH0 09. indd 233 1/31/2008 4:4 3:5 2 PM1/31/2008 4:4 3:5 2 PM © 2008 by Taylor & Francis Group, LLC 234 NEPA and Environmental Planning: Tools, Techniques, and Approaches for. Regulations. • • CRC_75 59_ CH0 09. indd 235CRC_75 59_ CH0 09. indd 235 1/31/2008 4:4 3:5 2 PM1/31/2008 4:4 3:5 2 PM © 2008 by Taylor & Francis Group, LLC 236 NEPA and Environmental Planning: Tools, Techniques, and Approaches. concentrations. CRC_75 59_ CH0 09. indd 243CRC_75 59_ CH0 09. indd 243 1/31/2008 4:4 3:5 4 PM1/31/2008 4:4 3:5 4 PM © 2008 by Taylor & Francis Group, LLC 244 NEPA and Environmental Planning: Tools, Techniques, and Approaches