There is much to consider in the “memorandum” CEQ released last week (2014 Memo) aiming for the more “effective use” of programmatic NEPA documents. The broadest scale NEPA documents have treated plans and proposals of immense geographic scope, long-term horizons, and national implications. But these very same things have often been dismissed as too inchoate, indefinite, and/or unformed to merit a real “impact” and/or “alternatives” analysis. As a result, the utility and necessity of “programmatic” NEPA documents have long remained a work-in-progress.
In CEQ’s most recent memo offering clarifications on the matter, they start by asserting that “[t]he term “programmatic” describes any broad or high level NEPA review” and isn’t “limited to a NEPA review for a particular program.” 2014 Memo at 7. So far so good.
It is where CEQ turns to its actual pointers for 2014 that things get a little murky. CEQ claims that these pointers “build on guidance issued in 1983” which explained “the use of tiering and its place in the NEPA process.” 2014 Memo at 9. Indeed, this marks the second time the Obama CEQ has “built upon” and not “amended” or supplanted that 1983 guidance. (It did so in 2010 when it updated its approach to the development, use, and periodic review of “categorical exclusions,” as well. See 75 Fed. Reg. 75628, 75632 (2010).)
What is unclear is whether these new pointers really do just “expand” on what was said by the Reagan CEQ or rather take things (like tiering or categorical exclusions) in a subtly but importantly different direction.
Tiering is one of those NEPA practices that has evolved considerably over its lifespan. When it was first created in 1978 it was rarely used. It was the Reagan CEQ’s 1983 “Hill Memorandum” that pumped up tiering’s profile, recommending to action agencies that they use it as an “option” and not a “requirement.” Hill Memo, 48 Fed. Reg. at 34268. The “option” eventually became rather popular with NEPA’s repeat-play agencies like the Forest Service, Federal Highway Administration and some others. As an “option,” programmatic EISs offer the chance to do one omnibus impacts/alternatives analysis which can thereafter be “tiered to,” absolving the agency from further deliberations about or analysis of its chosen course(s) of action. The Hill Memorandum noted that courts had already begun scrutinizing this potentially evasive use of tiering even back then, see id. at 34268, but it was clearly reminding action agencies that this “option” could help them lower NEPA compliance costs.
The 2014 Memo comes after decades more experience so this may not be a fair comparison. But it notes that a
programmatic NEPA review may not be a cost effective effort for an agency if the effort required to perform the review is substantially greater than the time and effort saved in analyzing subsequent proposals or if the lifespan of the programmatic NEPA document is limited.
2014 Memo at 16. The heart of the problem—what gives tiering such a discretionary character—is how elastic the notion of a “proposal” for federal action can be. Just exactly what isn’t an agency “goal” for which that agency isn’t “actively preparing to make a decision on one or more alternative means of accomplishing that goal.”? 40 C.F.R. § 1508.23. It is perhaps impossible to say with any authority.
How to Make a Cost-Effective Use of Tiering?
Striking the balance between programmatic NEPA routines that genuinely weigh broader-scale choices and those that simply run interference for unpopular or unjustifiable policies is a constant source of NEPA friction. Take drilling for oil in the Gulf of Mexico. A plan to offer offshore leases on submerged (federal) lands must have formed at some time such that a “proposal” existed within the meaning of NEPA § 102(2)(C) and § 1508.23. But then the “meaningful” evaluation of such an inchoate, unfinished plan came down to a bunch of modeled values regarding recoverable oil, projected future oil prices, gross estimates of potential spill risks, etc. It didn’t have to tackle harder, sharper risk/benefit balancings like where and when to drill (or avoid), whom to allow to drill, with what types of drilling tools and precautions, etc. And, as the Presidential Commission (archive) showed, none of those more specific NEPA analyses ever were prepared before the Deepwater Horizon tragedy. The more specific NEPA documents—documents weighing the risks and benefits of particular leases, particular exploratory wells, etc.—could’ve examined the risks of drilling in salt formations (which are particularly unstable substrates in which to cement and complete a well), the risks of drilling in “ultra-deep” waters with well control mechanisms like blowout-preventer valves that hadn’t been proven in such depths, etc. But they didn’t. They were, instead, tiered to more “programmatic” NEPA documents that had supposedly already confronted spill risks or were boilerplate that was served up over and over again. And, of course, once the leases were sold, the “alternatives” to any particular drilling plan were narrow indeed.
Much of this 2014 Memo seems like a reminder. It reminds about the CEQ regulations’ ideals for tiering and programmatic documents. It touts the importance of “collaboration, public engagement, and coordination” with other environmental reviews. See 2014 Memo at 24-29. And reminders can be bureaucratically useful things. Still, the use of “guidance” to recapitulate the text of governing regulations—which is much of the 2014 Memo’s content—is an odd way to do much explaining, expanding, or reminding. It is also hard to understand guidance that, when reaching *the* question under construction, confesses that agencies should “exercise judgment” and, in the last analysis, fashion their own approaches that make sense. The 2014 Memo’s advice:
Clarity of approach is essential to avoid the impression that a programmatic NEPA review creates a situation whereby the public is too early to raise issues in the broader programmatic analysis and then too late to raise them in any subsequent tiered analyses.
2014 Memo at 26. Guidance that guided agencies to an actual methodology would be better, all things considered.
Using Risk to Inform the Use of Tiering?
To do much work, tiering must enable the decision maker to weigh broader scale risks wherever a commitment is being made to bear those risks. Because broad scale risks don’t typically spread evenly, though, the subsequent choices that follow from such commitments will not necessarily have been considered with any clarity or specificity at those earlier junctures. This is in the nature of a risk expression: it covers over the natural variability which inheres in the experience and/or projections from which it flows. Once that variability breaks out into a finer-grained resolution, the aggregated priors aren’t of much salience any longer. A “tiered” analysis in this context should look more like a blank slate consideration of particularized risks that will arise and be born from whatever follow-on choice(s) must be made. In other words, thinking about tiering as a way of solving for risks manifested at different scales may help us better focus our NEPA routines.
Risk/benefit analysts think of these problems as decision trees, at least to a first approximation. Spurring more NEPA professionals to anticipate scale dynamics accurately and to sponsor the kind of effective deliberations that weigh initial commitments of resources was CEQ’s goal in the 2014 Memo (whether it knew it or not). An exemplar that CEQ held out as such was a 1991 PEIS for the Port of Seattle’s container shipping expansion. See 2014 Memo at 34-35. In a follow-up post, we will delve a little further into this PEIS and what it accomplished—with the benefit of hindsight!