Hostname: page-component-77c89778f8-m42fx Total loading time: 0 Render date: 2024-07-22T18:29:11.790Z Has data issue: false hasContentIssue false
  • English
  • Français

ENVIRONMENTAL REVIEW: Proximate Causation and the No Action Alternative Trajectory in Cumulative Effects Analysis

Published online by Cambridge University Press:  16 September 2008

Jerry Magee  and
Roger Nesbit
Jerry Magee*
Affiliation:
Bureau of Land Management, US Department of the Interior, Oregon-Washington State Office, Portland, Oregon
Roger Nesbit
Affiliation:
Office of the Regional Solicitor, US Department of the Interior, Portland, Oregon
*
Address correspondence to: Jerry Magee, Environmental Protection Specialist, USDI, Bureau of Land Management, Oregon-Washington State Office, PO Box 2965, Portland, OR 97208; (fax) 503-808-6021; (email) gmagee@blm.gov
Get access

Abstract

From the time it appeared in the 1978 regulations implementing the United States' National Environmental Policy Act, agencies have struggled with the concept of cumulative impacts in their environmental analyses. Although the regulations touch on every aspect of environmental impact analysis, they merely define cumulative impacts and then refer to them only in other definitions in the Terminology section. Agencies have become fairly adept at analyzing direct and indirect effects, but cumulative impacts have posed more difficult methodological problems, giving rise to a host of legal challenges. The courts have attempted to sort out what is required for adequate cumulative impact analysis, causing agencies to reactively develop agency-specific, and often complex, methodologies. This article relates the basic concepts of cumulative impact assessment to emerging case law, focusing on US federal land management issues. From this basis, it proposes a novel approach to cumulative effects analysis that (1) uses the doctrine of proximate cause from tort law to ensure that there is a reasonable probability that a proposal will affect a resource of concern before undertaking analysis of other effects on that resource, and (2) uses the No Action Alternative's trajectory of resource conditions (which incorporates the effects of other past, present, and reasonably foreseeable future actions) as the baseline for assessing an action's incremental effects. The proposed six-step process integrates effects analysis by describing the overall effects of the No Action Alternative, altered by an action's direct and indirect (or incremental) effects, as the cumulative effect on a particular resource of concern.

Environmental Practice 10:107–115 (2008)

Type
FEATURES
Information
Environmental Practice , Volume 10 , Issue 3 , September 2008 , pp. 107 - 115
Copyright
Copyright © National Association of Environmental Professionals 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1 National Environmental Policy Act (NEPA), 42 United States Code (USC) §§ 4321 et seq.

2 NEPA, § 102(2)(C), 42 USC § 4332(2)(C).

3 NEPA, § 102(2)(C), 42 USC § 4332(2)(C).

4 Council on Environmental Quality (CEQ) Regulations at 40 Code of Federal Regulations (CFR) §§ 1500–1508.

5 40 CFR § 1501.4(b).

6 40 CFR § 1508.9.

7 40 CFR § 1508.25 (“To determine the scope of environmental impact statements, agencies shall consider 3 types of actions … and 3 types of impacts. They include … Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts [and] … Impacts, which may be: (1) Direct; (2) indirect; (3) cumulative.”)

8 See 40 CFR § 1508.27(b), where an action's relation to “other actions with individually insignificant but cumulatively significant impacts” is listed as one of ten factors for evaluating intensity as it relates to defining “significantly” under NEPA.

9 40 CFR § 1508.7.

10 40 CFR § 1508.8(a) and (b), respectively.

11 D. Bear, 1989, “NEPA at 19: A Primer on an ‘Old’ Law with Solutions to New Problems,” 19 Envtl. Law Rep. (Envtl. L. Inst.) 10060, 10068.

12 Bear, 1989, “NEPA at 19” (at 10068), citing, e.g., Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988); Fritiofson v. Alexander, 722 F.2d 1225 (5th Cir. 1985); Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).

13 Bear, 1989, “NEPA at 19” (at 10068).

14 Council on Environmental Quality (CEQ), 1997, Considering Cumulative Effects under the National Environmental Policy Act, 128 pp., available at http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm.

15 CEQ, 1997, Considering Cumulative Effects, at page v.

16 CEQ, 1997, Considering Cumulative Effects, at v and vi.

17 772 F.2d 1225 (5th Cir. 1985).

18 Fritiofson v. Alexander, 772 F.2d at 1245.

19 40 CFR §1508.8.

20 M. D. Smith, 2006, “Cumulative Impact Assessment under the National Environmental Policy Act: An Analysis of Recent Case Law,” Envtl. Pract. 8(4):228–40.

21 379 F.3d 738 (9th Cir. 2004); amended 395 F.3d 1019 (9th Cir. 2005).

22 Lands Council v. Powell, 395 F.3d at 1025.

23 Lands Council v. Powell, 395 F.3d at 1028.

24 Lands Council v. Powell, 395 F.3d at 1028.

25 389 F. Supp. 2d 1174, 1187 (N.D. Cal. 2004).

26 J. L. Connaughton, 2005, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis, Chairman, Council on Environmental Quality, Washington, DC, 4 pp.

27 Connaughton, 2005, Consideration of Past Actions at 2.

28 No. CV-05-0220-EFS, 2005 WL 2077807, *7 (E.D. Wash., Aug. 26, 2005) (unreported) [citing Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)].

29 428 F.3d 1233 (9th Cir. 2005).

30 451 F.3d 1005 (9th Cir. 2006).

31 Environmental Protection Information Center v. US Forest Service, 451 F.3d at 1008.

32 992 F.2d 977 (9th Cir. 1993).

33 Environmental Protection Information Center, 451 F.3d at 1014.

34 460 F.3d 1125 (9th Cir. 2006).

35 Northwest Environmental Advocates, 460 F.3d at 1138–41.

36 Northwest Environmental Advocates, 460 F.3d at 1158.

37 456 F.3d 955 (9th Cir. 2006).

38 Great Basin Mine Watch, 456 F.3d 955 at 971–72 (citing Lands Council, 395 F.3d at 1028).

39 541 US 752 (2004).

40 Department of Transp. v. Public Citizen, 541 US at 765.

41 Department of Transp. v. Public Citizen, 541 US at 766.

42 Department of Transp. v. Public Citizen, 541 US at 767.

43 460 US 766, 774 (1983).

44 Department of Transp. v. Public Citizen, 541 US at 767.

45 W. P. Keeton, D. B. Dobbs, R. E. Keeton, D. G. Owen and W. L. Prosser, 1984, Prosser and Keeton on the Law of Torts, 5th Edition, § 41, at 264.

46 Department of Transp. v. Public Citizen, 541 US at 769–70.

47 CEQ, 1997, Considering Cumulative Effects, at vi.

48 Metropolitan Edison Co. v. People against Nuclear Energy, 460 US at 774.

49 CEQ, 1997, Considering Cumulative Effects, at v.

50 R. E. Bass, A. I. Herson, and K. M. Bogdan, 2001, The NEPA Book, Solano Press Books, Point Arena, CA, 475 pp.

51 Although similar in concept to the graphs in Figure 5-4, page 99, of The NEPA Book (Bass, Herson, and Bogdan, 2001), Figures 1 and 2 of this article differ in that they use the No Action trajectory as a baseline for incremental effects as they relate to cumulative effects.

52 Steps 1, 5, and 6 are adapted from the “8 questions any EA or EIS should readily answer” on pages 419–20 in O. L. Schmidt, 2008, NEPA Models and Case Lists, 2nd Edition, Rose City Park Press Publishing, Portland, OR, 964 pp.