NEPA RULES FOR PUBLIC INVOLVEMENT

["Peter Havens" <PeterHavens@msn.com>]

In response to Laura Olah's inquiry about early public involvement and Peter 
Strauss' follow-up, please post my comments.

The Council on Environmental Quality's implementing regulations are found at 
40 CFR 1500 - 1508. I don't think they've been changed in the past 15 years. 
However, each agency has its own implementing regulations that further define 
how that agency appies the CEQ regulations. There also may be further 
detailed directives, etc. within the military to implement NEPA.

At any rate, the CEQ regulations specify three points in the NEPA process 
during which the public can become involved: during scoping in response to a 
Federal Register publication of a Notice of Intent (time limits established by 
the agency), during the review of the Draft EIS (minimum 45 day review), and 
during the "review" of the Final EIS (minimum 30 day review).

The NOI should be published as soon as possible in the planning process for a 
particular action. The regs identify the need to include the NEPA 
documentation with Congressional recommendations. With some programs, this 
connection is lost, however. For example, the Military Construction program 
will usually be set by Congress as budget line items before NEPA documentation 
is prepared for those projects.

The focus of the NEPA process is in supporting the decision to proceed with a 
particular proposed action. The agency normally can decide to proceed with 
the action after completing the NEPA process. The decision is documented with 
a Record of Decision published in the Federal Register. The ROD includes 
other than just environmental decision factors. For instance, a Navy ROD will 
include vessel operation requirements, engineering requirements, etc., in 
addition to environmental considerations in making the final decision. The 
EIS only details the environmental impacts and compares those impacts across a 
range of reasonable alternatives. Reasonable alternatives are determined by 
the scope of the proposal. The scope of the proposal is defined up front 
during scoping.

It's important to remember that doing an EIS, per se, does not guarantee 
environmental preservation, conservation, or reduction in impacts. How the 
agency interacts with the public and regulatory agencies determines the 
environmental outcome of the EIS. Then, the agency must implement the project 
in accord with the scope and mitigation commitments of the supporting NEPA 
documentation.

Public comments can play a major role in how this all comes about. In that 
regard, please see the CEQ NEPA regs on commenting. There are important 
guidelines on specificity of the comment that will go a long way toward having 
an effect on the EIS.

In my opinion, NEPA works well when we consider modifying a proposal to avoid, 
reduce, or compensate for anticipated environmental impacts. It does not work 
well when we try to use it to stop or delay a proposal.

Regards,
Peter Havens
peterhavens@msn.com