Mitigation measures in analyses under the National Environmental Policy Act

Army Lawyer, Sept, 2002

Military environmental law attorneys are often challenged by the complexities and nuances of compliance with the provisions of the NEPA of 1969. (1) The proper use and management of mitigation measures in NEPA analyses can be overlooked on occasion and are worthy of some discussion. This note highlights some of the issues military environmental law practitioners may face when analyzing mitigation measures in conjunction with their reviews of NEPA analyses performed by their commands. Particular emphasis is placed on the mitigation requirements found in the revised Army NEPA regulation. (2)

The NEPA requires federal agencies to prepare an environmental impact statement (EIS) for "major [f]ederal actions significantly affecting the quality of the human environment." (3) Federal agencies often prepare environmental assessments (EAs) (4) to determine whether an EIS is necessary for a particular federal action. The EA process concludes with either a finding that a major federal action significantly affects the quality of the human environment necessitating the production of an EIS, or a finding of no significant impact (FNSI). (5)

Environmental analyses performed by federal agencies under NEPA often include mitigation measures. The regulations of the Council on Environmental Quality (CEQ) (6) implementing NEPA generally define mitigation to include measures that avoid, minimize, reduce, rectify, or compensate for impacts to the physical environment resulting from federal actions. (7) Federal agencies often use such measures in EAs to mitigate environmental impacts below the significance threshold, thus avoiding the requirement to produce an EIS (the mitigated FNSI). (8) The manner in which federal agencies use and manage mitigation commitments made in environmental analyses performed under NEPA is critical to overall compliance with NEPA, particularly in light of the use of mitigated FNSIs.

The Army NEPA regulation (9) covers the subject of mitigation in environmental analyses under NEPA in several places. The Army regulation defines mitigation measures substantially as the CEQ regulations define them. (10) Examples of mitigation measures cited by the Army regulation include maneuver restrictions for tracked vehicles; (11) aerial seeding to reduce erosion problems; (12) changing times or frequency of operations (for example, changing seasons of the year, days of the week, or times of day for various activities); (13) and reducing the effects of construction equipment around protected trees. (14)

The Army regulation states that "[w]hen the analysis proceeds to an EA or EIS, mitigation measures will be clearly assessed and those selected for implementation will be identified in the FNSI or the [Record of Decision]. The proponent must implement those identified mitigations, because they are commitments made as part of the Army decision." (15) The Army regulation further states that "[t]he mitigation shall become a line item in the proponent's budget or other funding document, if appropriate, or included in the legal document implementing the action (for example contracts, leases, or grants)." (16) Importantly, for a mitigated FNSI, the Army regulation states that any promised mitigation measures "become legally binding and must be accomplished as the project is implemented. If any of these identified mitigation measures do not occur, so that significant adverse environmental effects could reasonably be expected to result, the proponent must publish an NOI [Notice of Intent] and prepare an EIS." (17)

The Army regulation also provides guidance on determining what mitigation measures are practical in light of operational and funding constraints. (18) Regarding practicality, the regulation states, "The key point concerning both the manpower and cost constraints is that, unless money is actually budgeted and manpower assigned, the mitigation does not exist." (19)

Another important issue to consider is the monitoring and enforcement of mitigation measures mentioned in NEPA analyses. The CEQ regulations state that "[a] monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation." (20) The CEQ regulations further state that "[a]gencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases." (21) The Army regulation sets out those situations that constitute "important cases." (22) Included are those cases in which changed environmental conditions or activities other than those assumed in the EIS occur, resulting in predictions of adverse environmental impacts being too limited; (23) cases in which the outcome of mitigation is unknown as when new technology is employed; (24) cases in which major environmental controversy is associated with the selected alternative; (25) and cases in which failure of mitigation could result in serious harm to protected species, sites, or areas. (26)

The Army NEPA regulation defines monitoring as either enforcement monitoring (27) or effectiveness monitoring. (28) Enforcement monitoring is basically designed to ensure that mechanisms are built into contracts and agreements with those entities that will actually perform the mitigation. An example of enforcement monitoring is a penalty clause written into a contract for the performance of mitigation measures. (29) This form of enforcement is important, considering that much of the Department of Defense's environmental work is actually performed by contract with private entities.