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RESEARCH ARTICLE: Cumulative Impact Assessment under the National Environmental Policy Act: An Analysis of Recent Case Law

Published online by Cambridge University Press:  31 January 2007

Michael D. Smith
Michael D. Smith
Affiliation:
Department of Environmental and Natural Resource Sciences, Humboldt State University, Arcata, California
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Abstract

The assessment of cumulative impacts is one of the most difficult tasks a NEPA (National Environmental Policy Act) practitioner faces when preparing an Environmental Assessment or Environmental Impact Statement, and it recently has become an increasing focus area of legal challenges. Historically, federal agencies have a very poor track record in this litigation. This research examines 25 recent judicial opinions involving challenges to various NEPA documents' cumulative impact analyses, from the federal Ninth Circuit Court of Appeals. Challengers were victorious on their claims of inadequate analysis in 60% of the cases decided in the 10-year analysis period. In recent years, the success rate for challengers has risen even higher, to victories in eight of 11 cases (72%). The main reasons federal agencies have lost these court challenges is because they failed to present any cumulative impact analysis whatsoever in their NEPA document; they left out obvious past, present, or reasonably foreseeable future actions; or they provided undocumented assertions that their projects would not cause any cumulative impacts. Four key lessons for practitioners emerge from the results: (1) Make sure to include a discussion of cumulative impacts for each resource and include all past, present, and reasonably foreseeable future actions; (2) Do not make unsubstantiated claims about cumulative impacts; (3) Assessments do not have to be perfect but should be thorough and based on data and explained rationales; and (4) Do not tie assessments solely to programmatic or non-NEPA documents.

Type
FEATURES & REVIEWS
Information
Environmental Practice , Volume 8 , Issue 4 , December 2006 , pp. 228 - 240
Copyright
© 2006 National Association of Environmental Professionals

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References

REFERENCES

Ackerman, S. 1990. Observations on the Transformation of the Forest Service: The Effects of the National Environmental Policy Act on US Forest Service Decision Making. Environmental Law 20(2):703–734.Google Scholar
Bass, R. E., A. I. Herson, and K. M. Bogdan. 2001. The NEPA Book: A Step-by-Step Guide on How to Comply with the National Environmental Policy Act. Solano Press, Point Arena, CA.
Burris, R. K., and L. W. Canter. 1997a. Cumulative Impacts are not Properly Addressed in Environmental Assessments. Environmental Impact Assessment Review 17(5):5–18.Google Scholar
Burris, R. K., and L. W. Canter. 1997b. A Practitioner Survey of Cumulative Impact Assessment. Impact Assessment 15(June):181–194.Google Scholar
Canter, L. W., and J. Kamath. 1995. Questionnaire Checklist for Cumulative Impacts. Environmental Impact Assessment Review 15:311–339.Google Scholar
Cooper, T. A., and L. W. Canter. 1997. Documentation of Cumulative Impacts in Environmental Impact Statements. Environmental Impact Assessment Review 17:385–411.Google Scholar
Council on Environmental Quality. 1997. Considering Cumulative Effects under the National Environmental Policy Act. Council on Environmental Quality, Washington, DC.
Council on Environmental Quality. 2005. Guidance on the Consideration of Past Actions in Cumulative Effects Analysis. Council on Environmental Quality, Washington, DC, June 24.
Eccleston, C. H. 1999. The NEPA Planning Process: A Comprehensive Guide with Emphasis on Efficiency. John Wiley & Sons, New York.
Herson, A. I., and K. M. Bogdan. 1991. Cumulative Impact Analysis under NEPA: Recent Legal Developments. The Environmental Professional 13:100–106.Google Scholar
Jones, E. S., and C. P. Taylor. 1995. Litigating Agency Change: The Impact of the Courts and Administrative Appeals Process on the Forest Service. Policy Studies Journal 23(Summer):310–336.Google Scholar
Kamaras, G. 1993. Cumulative Impact Assessment: A Comparison of Federal and State Environmental Review Provisions. Albany Law Review 57(1):113–143.Google Scholar
Kennedy, J. J. 1988. Legislative Confrontation of Groupthink in US Natural Resource Agencies. Environmental Conservation 15(2):123–128.Google Scholar
Klein, B. 2004. Judges' Party Affiliations Predict Outcome of NEPA Cases. The Environmental Forum September/October: 33.
Malmsheimer, R. W., D. Keele, and D. W. Floyd. 2004. National Forest Litigation in the US Court of Appeals. Journal of Forestry March:20–25.Google Scholar
Mandelker, D. R. 1992. NEPA Law and Litigation, 2nd Edition. Clark Boardman Callaghan, New York.
McCold, L., and J. Holman. 1995. Cumulative Impacts in Environmental Assessments: How Well Are They Considered? The Environmental Professional 17:2–8.Google Scholar
Moriarty, K. H. 2004. Note: Circumventing the National Environmental Policy Act: Agency Abuse of the Categorical Exclusion. New York University Law Review 79:2312–2390.Google Scholar
National Academy of Sciences. 2003. Cumulative Environmental Effects of Oil and Gas Activities on Alaska's North Slope. National Academies Press, Washington, DC.
Rumrill, J. N., and L. W. Canter. 1997. Addressing Future Actions in Cumulative Effects Assessment. Project Appraisal 12(4):207–218.Google Scholar
Scott, K. M. 2003. An Exploration of the Motivations of Court of Appeals Judges. Paper presented at the Annual Meetings of the Midwest Political Science Association, Chicago, IL, April 3–6.
Smythe, R., and C. Isber. 2003. NEPA in the Agencies: A Critique of Current Practices. Environmental Practice 5(4):290–297.Google Scholar
Songer, D. R., and M. H. Ginn. 2002. Assessing the Impact of Presidential and Home State Influences on Judicial Decisionmaking in the United States Courts of Appeals. Political Research Quarterly 55(2):299–328.Google Scholar
Thatcher, T. 1990. Understanding Interdependence in the Natural Environment: Some Thoughts on Cumulative Impact Assessment under the National Environmental Policy Act. Environmental Law 20:611–647.Google Scholar
US Environmental Protection Agency. 1999. Consideration of Cumulative Impacts in EPA Review of NEPA Documents. US Environmental Protection Agency, Office of Federal Activities, Washington, DC.
Yost, N. Y. 2001. Legal Update: Recent NEPA Case Law. Paper presented at the National Association of Environmental Professionals California Chapter NEPA Workshop, Oakland, CA, May 10.