Current Issues in NEPA
Lessons Learned in Appeals and Litigation
Jackie Andrew
R6 Assistant Director RPM
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Top NEPA Traps
. . .
Really good ways to tempt appellants
and litigants into challenging a
project
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Analysis serves as the
foundation for the
Decision
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What kind of traps do we
fall into that prevent
appropriate determinations
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Trap 1 – Not fully understanding or
describing the Proposed
Action and the Alternatives.
. .
Every member of the IDT must
understand ALL of the actions
Include the mitigation measures
and design features
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Trap 2 – Omitting the measures and
values of change . . .
Snags per acre
Pools per mile
% detrimental disturbance
Tons per acre
Qualitative and quantitative
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Trap 3 – Neglecting the magnitude of
change . . .
Extent – how vast ?
Direction – how dynamic?
Speed – how rapid?
Duration – how lasting?
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Trap 4 – Restating the actions themselves
as the effects of the actions . .
.
Action: The District Ranger proposes to restore the
streambank of Cat Creek in 2003
Wrong: This action would restore the streambank
of Cat Creek by 2003
Right: This action would increase vegetative
cover along the lower 2.1 miles of Cat
Creek to 100 percent of its potential by
2006
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Trap 5 – Discounting the effects of
the no-action alternative . . .
The evolving conditions of the
affected environment
Best opportunity to display
why action is needed
The baseline for comparison of
action alternatives
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Trap 6 – Excluding the effect and
effectiveness of mitigation
measures – and even the
measures themselves . . .
Avoiding
Minimizing
Rectifying
Reducing
Compensating
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Trap 7 – Neglecting to interpret the
effects or ask the ‘so what’
question . . .
Example
As a result of the fuel reduction
activities, basal area will be reduced to
60 sq ft/acre….So?
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Trap 8 – Incorporating reference
material without checking
the relevance . . .
New material comes out all the
time, review it, incorporate it,
check to see if it represents good
science…
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Trap 9 – Writing ad naseum about
extraneous information . . .
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Frame the analysis
Focus the presentation
Emphasize the effects
Streamline the writing
Use plain language
The more
we write,
the more we
must defend
(40 CFR 1500.1c, 1500.2b, 1500.4b,c,d,f)
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Trap 10 – Ignoring cumulative effects ...
Federal lands
Non-federal lands
Past projects
Present projects
Reasonably foreseeable future projects
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Trap 11 – Stating indirect project
effects as a substitute for
cumulative effects . . .
Example
Describing downstream turbidity as the
cumulative effect on water quality instead
of as merely an indirect effect of the
sediment from a proposed action
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Trap 12 – Omitting assumptions,
methodologies, references,
conclusions, and rationale . . .
Mouse mortality would increase because ________
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Trap 13 – Failing to provide a consistency
conclusion. . .
You must interpret the effects in relation
to law, regulation and policy…
Bottom line, is it consistent with your
Forest Plan?
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Bonus
– Preparing effects analysis in
an interdisciplinary vacuum with minimal
participation from the responsible official . . .
Effects analysis displays inconsistencies
among resources in descriptions,
interpretations, and conclusions
Conflicts emerge among effects
analysis, specialists reports,
and biological assessments
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Parting shot . . .
Work interdependently
Take a hard look
Talk with your peers
Consult your references
Rely on your judgment, gut feeling,
best guess
 Streamline your analysis and writing
 Support your conclusions with rationale
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That’s all folks!
For assistance-ask your NEPA Coordinator or call:
Jackie Andrew
Assistant Director
Resource Planning and Monitoring
503-808-2464
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