The final rule revising the Council on Environmental Quality regulations for implementing the procedural requirements of the National Environmental Policy Act were published on July 16, 2020 and took effect on September 14, 2020. The final rule requires Federal agencies to revise their NEPA procedures to align with the CEQ regulations and publish their draft revised procedures by September 14, 2021. The final rule also requires or authorizes agencies to address several new topics in their revised procedures, including identifying actions not subject to NEPA, documentation requirements for categorical exclusion determinations, and using another agency's categorical exclusions. This presentation describes the status of agency NEPA procedures revisions and agency approaches to new topics addressed in their procedures.

NEPA Track, 0.5 AICP Credits

Charles Nicholson
Senior Environmental Scientist
HDR

Dr. Nicholson is an elected NAEP board member and chair of the NEPA Practice. He is presently employed as a part-time Senior Environmental Scientist at HDR primarily serving as a NEPA advisor, document reviewer, and co-chair of the HDR Impact Assessment Group. In early 2017, he retired from the Tennessee Valley Authority where he most recently served as Senior NEPA Compliance Specialist. His previous positions at TVA included zoologist, wildlife biologist, and Endangered Species Act compliance specialist. He has managed the production of numerous environmental assessments and environmental impact statements for a wide range of actions. He is chair of his town's urban forestry commission and Sheltowee Trace Association board member. He has a B.S. degree in Wildlife and Fisheries Science from the University of Tennessee, a M.S. degree in Wildlife Management from the University of Maine, and a PhD in Ecology and Evolutionary Biology from the University of Tennessee.

Almost 20 years ago, the concept of reader-friendly environmental documents took the NEPA world by storm. Concise, clearly written, and graphics-rich, their goal was to make the impacts of complex projects easy for any reader to understand. Since that time a number of factors, including fear of litigation and sheer force of habit, have bloated EIS page counts and schedules. The response has been to implement various streamlining initiatives that push projects to lower NEPA classes of action and impose constraints on document length and schedule. But at its core, the notion of environmental documents as efficient communication tools is fundamental to NEPA itself.

The 2020 NEPA regulations provide more specificity around page and time limits, but the directive is the same: tell a clear, concise story that avoids needless analysis and focuses on the facts that will inform a decision. As a new administration signals an increased emphasis on environmental values, this panel will explore the current state of the NEPA practice and the ongoing push for documents that are simultaneously approachable and defensible. While the reader-friendly approach has evolved, its principles are more timely than ever in light of changing regulations, new communications platforms, expanded requirements for accessibility, and heightened emphasis on timely decision-making. The discussion will be in a round-table format to allow greater engagement among panel members, with Q&A at the end of the session. Topics include:

• The intent of NEPA's authors regarding environmental documentation
• The goals of NEPA streamlining efforts over the years
• Legal and agency perspectives on the importance of clear environmental documents
• Genesis of the reader-friendly approach and what it means in today's NEPA practice
• The future of environmental documents in the age of online engagement, social media, and Section 508 compliance mandates

NEPA Track, 0.5 AICP Credits

Jenifer Young
Division Manager
Parametrix

Jenifer Young manages the Environmental Planning and Compliance Division of Parametrix's Puget Sound Office and leads the firm's NEPA practice. She is a senior planner with over 30 years of experience in developing environmental documentation for large and complex transportation and infrastructure projects, including highways and bridges, transit, wastewater treatment and conveyance, industrial developments, housing, and airports. She oversaw the preparation of, and did much of the writing for, of the SR 520 Bridge Replacement and HOV EIS, an early example of WSDOT's reader-friendly approach to environmental documents. Jenifer received her BA in English and her Master's in Public Administration from the University of Washington. Prior to working for Parametrix she also worked for CH2M Hill, Parsons Transportation Group, and VHB, as well as her own firm, Thistle Street Consulting.

Alan Summerville
Vice President and NEPA Practice Leader
VHB

Alan Summerville is VHB's NEPA Practice Leader, with more than 30 years of experience navigating the environmental review process for complex, controversial infrastructure projects from the New York City area to Miami, to southern California, up to Alaska, and many places in between. His focus is the management of timely environmental reviews under NEPA, state and local versions of NEPA, and related laws and authorities. Alan has developed and delivered NEPA training for Federal agencies. His clients have included numerous Federal, state, and local agencies as well as Fortune 500 companies. He has been involved in litigation at all levels of the Federal judicial system, including the Supreme Court. As part of his practice leader responsibilities, Alan focuses on thought leadership and staff development, including staying abreast of ongoing regulatory developments, guidance, and court decisions. He received his MA in City Planning from the University of Pennsylvania, and his BA in Economics and Political Science from the University of Vermont.

Anne Broache, AICP
Environmental Planner
HNTB

Anne Broache is a senior planner in the Environmental Planning Department of HNTB’s Bellevue, Washington office. She specializes in environmental documentation, strategic communications, quality control, and project management for large and complex multimodal transportation projects in the greater Seattle region, with a focus on the Washington State Department of Transportation’s I-405/SR 167 Megaprogram. Anne received her BS in journalism from Northwestern University and Master’s degree in urban planning from the University of Washington. Prior to joining HNTB, she worked as a public involvement and communications lead for PRR in Seattle and began her career as a professional journalist and writer.

Stephanie Miller

Stephanie is a project manager, planner, and communications specialist with over 25 years of experience. She provides strategic expertise to help clients effectively navigate complex planning, environmental, and decision-making processes – often for highly controversial projects. She is skilled at developing informative NEPA environmental documents and transportation corridor studies, developing and implementing environmental permitting strategies; facilitating meetings; building consensus; and developing approaches and materials to convey technical information to the public. She trains professionals nationally on the fundamentals of improving the quality of environmental documents. She served as an advisor for the development of guidance documents developed by the Association of State Highway Transportation Officials (AASHTO) and the American Council of Engineering Companies (ACEC) in 2006 and 2014. Those documents include Preparing High-Quality NEPA Documents for Transportation Projects (2014) and Improving the Quality of Environmental Documents (2006).

Perhaps the single most interesting change in the 2020 NEPA-implementing regulations was the deletion of the word “cumulative” and thus the apparent disappearance of the necessity for a so-called cumulative impact analysis. Instead, the regulations adopt the strategy for impact analysis outlined by the Supreme Court in their 2004 case of Department of Transportation v. Public Citizen, which held that "but for" causation is insufficient to make an agency responsible for a particular effect under NEPA. Instead, what is necessary is a "reasonably close causal relationship" akin to proximate cause in tort law. Proximate cause is well-developed in tort law. For an actor to be legally responsible for the consequences of their action there must be a sufficient and reasonably foreseeable causal connection between the action and the effect of that action. The Supreme Court imported that concept “akin to tort law” into NEPA law.

CEQ incorporated that concept into the 2020 regulations. A but-for relationship is not sufficient, by itself, for an agency to be legally responsible for environmental consequences unless the agency is also the proximate cause of that consequence. One aspect of proximate cause is whether the agency has discretion to avoid or prohibit the consequence. For example, an agency is not responsible for the environmental consequences of an action it cannot refuse to perform or the consequences it cannot prohibit. Another aspect of proximate cause is the rule of reason, i.e., whether a consequence is reasonably foreseeable in a chain of consequences — what the Supreme Court calls a “reasonably close causal relationship between a change in the physical environment and the effect at issue.” For example, an agency is not responsible for the environmental consequences of connected actions that have independent utility or for consequences too remote or speculative to be regarded as reasonably foreseeable.

 NEPA Track, 0.5 AICP Credits

Owen Schmidt
Consultant
Owen L Schmidt LLC

The author, Owen L. Schmidt, BA, MA, JD, has more than 32 years service with the Federal Government. He served as Senior Counsel with the U.S. Department of Agriculture, Office of the General Counsel in Portland, Oregon, where he advised USDA agencies in Washington and Oregon. He was also a Special Assistant United States Attorney in the District of Oregon. Before joining USDA in 1991, he was an attorney for the Bonneville Power Administration, where he joined the legal staff after several years as an Environmental Specialist. The author received his J.D. from Northwestern School of Law of Lewis & Clark College (1977), and a B.A. (1969) and M.A. (1973) in biology from St. Cloud State University, Minnesota. The author is a frequent author and lecturer on the National Environmental Policy Act.