Regulatory Developments, Special Topics in Environmental Management

NEPA and Cooperating Federal Agencies

The Council on Environmental Quality (CEQ) recently invited public comment on potential revisions to regulations implementing the 1969 National Environmental Policy Act (NEPA) (June 20, 2018, Federal Register (FR)).

The United States Department of Commerce in Washington, D.C.

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First on the list of 20 topics for which the CEQ is requesting comment is whether regulations should be amended “to ensure that environmental reviews and authorization decisions involving multiple agencies are conducted in a manner that is concurrent, synchronized, timely, and efficient.” The issue of multiple agencies directly affects the relationship between lead agencies and cooperating agencies in the NEPA process of conducting environmental reviews of proposed projects. Here we summarize several points in a 2002 White House memo, which still applies to the challenges facing lead and cooperating agencies and how the two can work together more efficiently.

Reluctance to Cooperate

Each NEPA review of a proposed federal action that may have an impact on the environment is undertaken by a lead agency. NEPA also requires that lead agencies conduct reviews “in cooperation with state and local governments” as well as other federal agencies that have jurisdiction by law or special expertise. But in a 2002 memo directed to the heads of federal agencies, James Connaughton, who then headed the White House Office of Environmental Policy, noted that cooperation can be elusive.

“Despite previous memoranda and guidance from CEQ, some agencies remain reluctant to engage other federal and non-federal agencies as cooperating agencies,” wrote Connaughton. “In addition some federal agencies remain reluctant to assume the role of a cooperating agency, resulting in inconsistent implementation of NEPA.”

Even when they accept cooperating agency status, agencies are inclined to conduct their reviews when they have the time and resources to do so; this is particularly true with state and local agencies. The consequence is that the NEPA process can extend for years before projects, including critical infrastructure projects, receive full approval.

Moreover, the absence of an agency that has a stake in the project is that the final environmental review may lack critical information on the project’s impact. This can result in litigation and further delay, suspension, or even cancellation of the project.

What the Lead Agency Can Do

Connaughton’s memo provided the following guidelines on how federal agencies should engage other agencies in the NEPA process.

  • The lead agency should identify as early as practicable those federal, state, tribal, and local agencies that have jurisdiction by law or special expertise with respect to reasonable alternatives or significant environmental, social, or economic impacts associated with a proposed action.
  • The lead agency should determine whether such agencies are interested and capable of assuming the responsibilities of a cooperating agency. Whenever agencies elect not to become cooperating agencies, they should still be considered for inclusion in interdisciplinary teams engaged in the NEPA process and on distribution lists for review and comment on NEPA documents. Federal agencies declining to accept cooperating agency status are obligated to respond to the request and provide a copy of their response to the CEQ.
  • Lead agencies should set time limits, identify milestones, assign responsibilities for analysis and documentation, specify the scope and detail of the cooperating agency’s contribution, and establish other appropriate ground rules addressing issues such as availability of predecisional information. Agencies are encouraged to consider documenting their expectations, roles, and responsibilities. Establishing such a relationship neither creates a requirement nor constitutes a presumption that a lead agency provides financial assistance to a cooperating agency.

Whom to Invite

The memo goes on to list 12 factors for determining whether to invite, decline, or end cooperating agency status. For example, federal agencies authorized to grant permits for the proposed project must by lawbe a cooperating agency. Nonfederal agencies may be invited by the lead agency if these agencies have the authority to approve or veto a proposal. Absent jurisdictional authority, agencies should be invited if they possess special programmatic expertise regarding the project or experience with the statutory obligations to which the project is subject; agencies that have only an “interest” in a proposed action are not ideal candidates for cooperating agency status.

Other factors that weigh on an invitation include an agency’s ability to enter into legal contracts; to provide needed information in a timely manner (e.g., on natural, social, economic, or cultural issues); to write portions of the review; to provide personnel and funding; to provide facilities, equipment, and other services; and to review project documents and engage in meetings with the lead agency and other cooperating agencies.

These and many other factors will likely be part of the discussion in any final CEQ rulemaking involving interactions between lead and cooperating agencies in the NEPA process.

Connaughton’s memo is here.