Key Elements in a NEPA Challenge

The key things to look for when reviewing or commenting on a federal agency proposal to make them do their duties under NEPA are:

• Make sure that all reasonably foreseeable environmental impacts have been identified and considered. If the project at issue will impact a minority community but the agency has not looked at that, make them do so by writing comments and submitting information showing the racial make-up of the affected community.
  
  
• Make sure that the agency has identified and considered all types of impacts: direct, indirect and cumulative. Make sure that the agency has correctly identified impacts; often, an agency will label "indirect" impacts (such as downstream sedimentation) as "cumulative" impacts (which are things like downstream sedimentation from this project added to other similar projects). They thus fail to consider cumulative impacts because they misidentified what impacts are what.
  
  
• In the cumulative impacts analysis, make sure the agency identifies other similar projects in the area, including those done on private lands by non-federal entities. Agencies love to make it look like their project is the only one like it around so that they can claim that there are no cumulative impacts. But, a Forest Service timber sale on public land in the same area as a recent timber sale on nearby private land MUST identify and consider that private land timber cut and its impacts when it considers the impacts from its proposal.
  
  
• Insure that the agency has looked at a reasonable range of alternatives. If they have overlooked a possible and logical alternative, present it to them and give information showing why it's reasonable for them to consider it.
  
  
• Make sure that the agency has documented the data and sources it uses for identifying impacts. If they claim that an impact does not exist or is insignificant, they have the burden of proving that, and they must have actual data, information or research to back that claim up. They cannot merely assert that a particular impact will not happen; they must have something to show that it will not happen.
  
  
• Make sure that the agency has done the site-specific information and data collection necessary. In order to know what impacts an action will have on a particular site, the agency must use site-specific data and information. Saying that "clearcutting generally does not hurt sensitive plants" will not suffice to say that THIS clearcut will not hurt the Pineland Hoary Pea found on THIS site.

Basically, if you can identify an impact or an alternative, then, under NEPA, the agency should have identified it first. You don't have to have any specialized knowledge; most people can tell what a particular proposal will do to them and their interests. If you know that a new gas pipeline through your neighborhood will make you more afraid of explosions and will lower your property values, then those are valid impacts that the agency should and must consider. Make sure that they consider things you have identified by sending in comments detailing those things.

If they still fail to consider an obvious impact that you pointed out to them, later in court, it will make you case stronger for the Judge to see that you told them all about it but they still ignored it. Trying to "sand bag" the agency by not telling them about an impact and then trying to hold them accountable in court for failing to consider that impact will usually back-fire on you. Judges do not like agencies that do not do their jobs, but they dislike people who try to stop a project by hiding things even more.

The best policy in attacking an agency's failure to comply with NEPA is to tell them during the public comment period everything you think they have done wrong and supply them with every piece of information you can. Sure, the agency may actually go back and consider the things you send in and thus comply with NEPA, making it impossible for you to sue them for violating NEPA. But that is the purpose of the public comment requirements under NEPA, to give the agency the chance to fix their mistakes before they decide to do something. However, I have found that about 80 percent of the time, the agency will totally ignore or "brush off" what you send them and still fail to comply with NEPA, thus giving you a better case later in federal court.