The same day that the Ninth Circuit ruled to overturn the Federal Defendant Rule, which had – until then – prevented private parties from intervening in NEPA claims, the White House Council on Environmental Quality (CEQ) was busy issuing guidance on another part of NEPA relating to mitigation.
Under NEPA, agencies may propose mitigation measures to help minimize the environmental impact of a Federal project. These measures may be part of the project’s fundamental design, or considered as alternatives in the project’s Environmental Impact Statement (EIS). An agency may even make a commitment to mitigation so extensive that the predicted environmental impacts of the project no longer require an EIS. In these cases, the agency is only required to file the less-stringent Environmental Assessment (EA) – a move coined the “mitigated FONSI.” (FONSI stands for Finding of No Significant Impact.)
On January 14th, CEQ released a guidance memorandum titled “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact.” (The Federal Register version came out a week later, becoming effective upon publication.) The memo aims to improve agencies’ accountability for their proposed mitigation measures by addressing specifically:
- How to ensure that mitigation commitments are implemented;
- How to monitor the effectiveness of mitigation commitments;
- How to remedy failed mitigation; and
- How to involve the public in mitigation planning.
This mitigation guidance memo is the second of three NEPA-related guidance documents issued by the CEQ in honor of NEPA’s 40th anniversary. The first, on categorical exclusions, was finalized more than two months ago. The third, which guides Federal agencies in improving “their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals,” is still in draft form.
For in-depth analysis of the guidance, see the related Van Ness Feldman Alert.