By Janice Schneider, Andrea Hogan, and Adam Thomas

On March 5, 2013, the Council on Environmental Quality released two handbooks designed to streamline the review process under the National Environmental Policy Act (“NEPA”) — one focuses on coordination between NEPA and the National Historic Preservation Act (“NHPA”), and the other on NEPA and the California Environmental Quality Act (“CEQA”).  Each handbook emphasizes ways to reduce duplication of effort in fulfilling legal requirements, thus increasing the efficiency of environmental reviews.

The NHPA/NEPA handbook was jointly released with the Advisory Council on Historic Preservation (“ACHP”), the agency that oversees implementation of the Section 106 process under the NHPA.  While early integration of NHPA requirements into the NEPA process is a clear theme of the handbook, the handbook provides roadmaps for two different ways in which the NHPA and NEPA can be integrated to increase efficiency and avoid delay.  The first roadmap describes how reviews under the two laws can be better coordinated, while the processes under each are still independently followed.  The second roadmap focuses on the lesser-used substitution of NEPA’s proceedings to fulfill NHPA’s Section 106 review, in specific contexts.[1]  The concepts in the handbook are not new in the sense that they are based on existing regulations allowing for the alignment of NHPA and NEPA review.  But the development of the handbook and the inclusion of roadmaps and tips providing a clear path forward under either a coordination or substitution approach serve as an excellent reminder of ways to reduce the time and effort needed to complete environmental review for projects, while maximizing public and stakeholder input.

The CEQA/NEPA handbook was released in conjunction with the California Governor’s Office of Planning and Research and is open for public comment for 45 days (through April 19, 2013).  The handbook builds on provisions in both CEQA and NEPA that encourage joint federal and state review by providing practical suggestions for the development of a single environmental review process that would meet both CEQA and NEPA.  The handbook is clear that its suggestions are just that, and are not prescriptive.  Thus the impact of the handbook will depend on agencies’ willingness to follow the “opportunities for coordination” outlined in the handbook.  The handbook also includes guidance on drafting a Memorandum of Understanding, including sample text, that are typically entered into between agencies involved in a joint NEPA/CEQA review in order to establish a common understanding of the project and the review, by defining roles and responsibilities and establishing a process for collaboration.

Collectively, these two handbooks are excellent tools for project proponents interested in cutting the time and cost of review processes for renewable and other energy projects.  Project proponents should advocate for streamlining of their projects, allowing them to proceed more quickly through review and towards actual implementation, consistent with applicable law.

[1]  See 36 C.F.R. Section 800.8(c).  Substitution, however, does not relieve an agency of its Section 106 responsibility to resolve adverse effects to historic properties through consultation.  Per the handbook, where there are adverse effects to a historic property and the agency is drafting an Environmental Impact Statement, the agency may document resolution of adverse effects in the Record of Decision (it may also choose to develop a Memorandum of Agreement or Programmatic Agreement).  In contrast, when the agency is drafting an Environmental Assessment and adverse effects exist, the agency will still need to develop a Memorandum of Agreement or a Programmatic Agreement.  See CEQ and ACHP, NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 at 30, 32-33 (Mar. 2013).