Legal Aspect of Environmental Permitting in the Emergency Response Environment (2015)

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3 LEGAL ASPECT OF ENVIRONMENTAL PERMITTING IN THE EMERGENCY RESPONSE ENVIRONMENT By Carlos Sun, University of Missouri, and Douglas Williams, Saint Louis University School of Law I. INTRODUCTION Staff interviews, case studies, and the Web sur- vey described in this legal digest provide a com- posite picture of the various approaches agencies have adopted to meet the challenges posed by en- vironmental compliance requirements in the case of emergencies. A more general and comprehen- sive review of applicable legal requirements is also provided. This digest divides legal require- ments into two categories: requirements that may be considered generally applicable and may be implicated in a large variety of circumstances, and requirements that are designed to protect particular resources, such as wildlife or historic properties or artifacts. In many cases, these re- quirements may be altered or waived in emer- gency situations. This digest addresses and ana- lyzes statutory provisions that authorize such modifications or waivers. How requirements for environmental review and permitting have been applied by the courts in emergency contexts is also considered. Instances where states have im- posed significantly higher regulatory require- ments than those imposed by the federal govern- ment are discussed. This digest may provide a basis for identifying opportunities for more effec- tive approaches to addressing and managing envi- ronmental compliance issues. One main purpose of this digest is to identify and recommend a set of best practices that agen- cies may employ in the emergency context in or- der to meet their legal responsibilities, respect public environmental objectives, and expedite the recovery process. These practices are situated in the pre-disaster and post-disaster contexts. In the pre-disaster context, techniques to ensure coordi- nated and cooperative agency response actions are identified. These techniques include informal measures such as networking and more formal measures such as the memorandum of agreement and shared staffing arrangements. Pre-disaster planning and data collection are also considered, as are approaches such as the development of gen- eral permits that are applicable in emergency con- texts. Post-disaster arrangements include infor- mal arrangements among agencies, choice of design, and the use of exemptions and exclusions from permitting requirements. II. APPLICABLE LEGAL REQUIREMENTS FOR ENVIRONMENTAL REVIEW OF TRANSPORTATION PROJECTS A. Introduction and Overview For many transportation projects authorized and/or funded by the Federal Highway Admini- stration (FHWA) or other federal agencies, a wide variety of federal, state, and local laws impose conditions or prerequisites to the commencement or completion of projects. A significant number of these requirements are designed to protect natu- ral, historic, cultural, and archeological resources. These requirements, which collectively constitute the environmental review to which federally funded transportation projects are subject, are described. The term “environmental review” is sometimes used to describe, specifically, the requirements of the National Environmental Policy Act (NEPA).1 In this digest, however, we adopt the definition provided in 23 U.S.C. § 139(a)(3), which defines “environmental review process” for transportation projects to include, in addition to the require- ments of NEPA, “the process for and completion of any environmental permit, approval, review, or study required for a project under any Federal Law other than [NEPA].”2 This statutory defini- tion affirms a widespread practice among federal agencies, which employ NEPA as an “umbrella” process both to assess environmental impacts and promote compliance with other applicable legal requirements.3 1 42 U.S.C. §§ 4321-4370(h). 2 23 U.S.C. § 139(a)(3)(B). 3 See CONG. RESEARCH SERV., RL34650, IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) FOR DISASTER RESPONSE, RECOVERY, AND MITIGATION PROJECTS, at 3-4 (January 13, 2011); CONG. RESEARCH SERV., RL33104, NEPA AND HURRICANE RESPONSE, RECOVERY, AND REBUILDING EFFORTS, at 2 (March 24, 2006).

4 Previous digests have described the environ- mental review of transportation projects in great detail. As can be gleaned from such digests, envi- ronmental review may present a demanding set of information gathering, analytical, consultative, and substantive regulatory obligations. This sec- tion of the current digest provides a more general review. We begin by discussing generally applica- ble laws that relate to environmental protection. These laws include NEPA and the four major pol- lution control statutes: The Clean Water Act, the Clean Air Act, the Solid Waste Disposal Act (also known as the Resource Conservation and Recov- ery Act), and the Comprehensive Environmental Response, Compensation and Liability Act (also known as Superfund). We then briefly describe representative laws that target their protections at more specific resources, such as public lands and resources, wildlife, and historic properties. Our sampling is limited to federal laws. It should be borne in mind that state and local law often supplements or complements these federal envi- ronmental protections. After this brief survey, we then return to NEPA, which, as noted above, has been used by agencies to structure the process of environmental assessment and review of potential compliance issues under other laws and regulatory programs. We identify the relevant agencies and other stakeholders that may be involved in the process of environmental review and devices that may be used to coordinate the process. Next, we turn our attention more specifically to the emergency con- text, incorporating a discussion of exemptions and other tools that have been, or may be, relied upon to expedite the recovery process while simultane- ously ensuring the appropriate consideration of environmental impacts and compliance with legal requirements. B. Generally Applicable Environmental Laws A number of regulatory programs address ac- tivities that may have impacts on the environ- ment and cultural and historic resources. It is useful to separate the applicable legal require- ments into two categories: generally applicable environmental laws and laws protecting particu- lar resources. Generally applicable laws include NEPA and the major federal pollution control programs that regulate a wide variety of private and public activities and may incidentally impose special or more targeted obligations upon federal agencies. These pollution control programs may affect transportation projects in a number of ways, including requirements for obtaining per- mits. In general terms, the project sponsor will bear responsibility for obtaining the necessary permits and ensuring compliance with these gen- erally applicable regulatory programs 1. The National Environmental Policy Act and the Process of Environmental Assessment NEPA is the nation’s “basic charter for protec- tion of the environment.”4 It is an “essentially pro- cedural” statute that imposes upon all federal agencies a number of information-gathering, ana- lytical, and consultation requirements relating to the environmental effects of agency actions. NEPA mandates that federal agencies assess the environmental impacts of the actions they pro- pose, as well as consider reasonable alternatives to those proposed actions. In broad terms, NEPA seeks to promote environmental protection by re- quiring federal agencies to critically consider a project’s purpose and need, to become educated regarding a project’s environmental impacts, to consider a suitable range of alternatives and their environmental impacts, and to promote the pub- lic’s understanding of and participation in the agency’s decision-making process.5 NEPA’s influ- ence on highway projects is reflected in FHWA’s statutory mandates: the agency must “assure that possible adverse economic, social, and environ- mental effects relating to any proposed project on any Federal-aid system have been fully consid- ered in developing such project, and that the final decisions on the project are made in the best over- all public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects….”6 The key provision in NEPA is Section 102(2)(C).7 It requires the preparation and consid- eration of “a detailed statement by the responsible official on…the environmental impact” of “major Federal actions significantly affecting the quality of the human environment.”8 As interpreted by the courts, NEPA does not merely mandate that an environmental impact statement (EIS) be pre- pared, but also that the EIS be considered at key 4 40 C.F.R. § 1500.1(a). 5 See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 6 23 U.S.C. § 109(h). 7 Pub. L. No. 91-190 (83 Stat. 853). 42 U.S.C. § 4332(2)(C). 8 Id.

5 stages in the decision-making process.9 Thus, the EIS serves as an “action-forcing device to ensure that [NEPA’s] policies and goals…are infused into the ongoing programs and actions of the Federal Government.”10 Each federal agency is responsible for imple- menting NEPA, and each has promulgated regu- lations to meet that responsibility. The two fed- eral agencies most directly associated with transportation projects in the emergency context are FHWA and the Federal Emergency Manage- ment Agency (FEMA). FHWA’s NEPA regulations are codified at 23 C.F.R. Part 771. FEMA’s regu- lations are found at 44 C.F.R. Part 10. NEPA also established the Council on Environmental Quality (CEQ), which is further charged with promulgat- ing regulations to implement NEPA and provide NEPA-related assistance to other agencies. By executive order, CEQ’s regulations are binding on other federal agencies.11 They also receive consid- erable deference from the courts.12 a. Must an EIS Be Prepared?—The threshold question an agency faces under NEPA is whether an EIS must be prepared. By the terms of the statute, the obligation to prepare an EIS arises only when a proposed action is a major one that significantly affects the quality of the human en- vironment. Some courts have assigned independ- ent significance to the term “major,” suggesting, for example, that the scope of or size of the federal government’s financial involvement in a project may trigger the duty to prepare an EIS.13 CEQ’s regulations take a different approach; under these regulations, an action is considered to be major if it has significant environmental effects for which an agency action is responsible and over which the agency has some significant authority to con- trol.14 FHWA regulations follow the CEQ ap- proach and, similarly, do not attach independent significance to the term “major.”15 9 Calvert Cliffs Coordinating Comm. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1118 (D.C. Cir. 1971). 10 40 C.F.R. § 1502.1. 11 Exec. Order No. 11,991. 12 See Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). 13 See State of New Jersey, Dept. of Envtl. Protection and Energy v. Long Island Power Auth., 30 F.3d 403, 416 n.23 (3d Cir. 1994). For discussion of this “dual standard” see D. MANDELKER, NEPA LAW AND LITIGATION, § 8.32 (2d ed. updated 2013). 14 40 C.F.R. § 1508.18. 15 23 C.F.R. § 771.109(a)(1). For projects that are known or are likely to have significant environmental impacts, an EIS will generally be required. But for projects the impacts of which are uncertain or are known to be insignificant, CEQ regulations provide alternative pathways for NEPA compliance.16 If the environ- mental effects of the action are unknown or un- certain, the agency should prepare an environ- mental assessment,17 which one court has described as “a shorter, rough-cut, low-budget EIS.”18 If, in turn, the environmental assessment demonstrates that the action, including any re- quired mitigation, will have no significant effects, the agency may prepare a “finding of no signifi- cant impact,” or FONSI.19 If the environmental assessment cannot document that the action will have no significant impact, then the agency must proceed to prepare an EIS. One important question that may arise fre- quently in emergency contexts concerns the base- line from which a project’s impacts should be as- sessed in making a determination of whether those impacts are significant. For example, sup- pose that a severe weather event causes a bridge collapse and FHWA proposes to fund a project to reconstruct the bridge. Should the reconstruction project’s impacts be assessed against a baseline set of environmental conditions that includes the old, functioning bridge, or should the impacts be assessed against a baseline that looks only to en- vironmental conditions prevailing at the time the reconstruction proposal is considered? The court in Sierra Club v. Hassell, 20 addressed this ques- tion and concluded that FHWA properly declined to prepare an EIS, based on an assessment that 16 See 40 C.F.R. § 1507.3(b)(2). 17 40 C.F.R. § 1501.4(b). 18 Highway J Citizens Group v. Mineta, 349 F.3d 938, 953 (7th Cir. 2003). 19 40 C.F.R. § 1501.4(e)(1). CEQ has endorsed the use of what has become known as a “mitigated FONSI,” which may be applied “when…mitigation measures are available and an agency commits to perform or ensure the performance of them,” such that significant impacts are avoided. Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Miti- gated Findings of No Significant Impact, 76 Fed. Reg. 3843, 3848 (Jan. 21, 2011). The courts have approved this use of mitigation. See, e.g., Hillsdale Environ- mental Loss Prevention, Inc. v. U.S. Army Corps of En- gineers, 702 F.3d 1156, 1172 (10th Cir. 2012) (conclud- ing that agency’s reliance on mitigation measures supported the agency’s FONSI). 20 636 F.2d 1095 (5th Cir. 1981).

6 regarded the status quo, or baseline, as the envi- ronmental conditions prevailing when the old bridge, prior to its destruction, was functioning.21 For categories of projects that are known by agency experience not to have significant impacts, CEQ regulations authorize agencies to develop “categorical exclusions.”22 FHWA’s regulations have followed the CEQ’s approach, establishing three different classes of actions:23 • Class I: significantly affect the environment and require the preparation of an EIS; • Class II: do not individually or cumulatively have a significant environmental effect and are deemed to be “categorically excluded” from fur- ther NEPA review; and • Class III: environmental impacts of which are not clearly understood and require an “environ- mental assessment” (EA). Currently, FHWA regulations identify two classes of categorical exclusions, named for the subsections of 23 C.F.R. §771.117 in which each are codified: (1) “c-list” categorical exclusions— classes of actions that have been predetermined to meet criteria governing categorical exclusions and normally require no FHWA approval; and (2) “d- list” categorical exclusions or “documented cate- gorical exclusions”—actions that may, on a case- by-case basis, be determined to meet these crite- ria.24 The Moving Ahead for Progress in the 21st 21 Id. at 1099. 22 40 C.F.R. § 501.4(a)(2). CEQ regulations define a “categorical exclusion” as “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of [CEQ] regula- tions.” Id. § 1508.4. The regulation requires that cate- gorical exclusions must “provide for extraordinary cir- cumstances in which a normally excluded action may have a significant environmental effect.” Id. 23 23 C.F.R. § 771.115. Unlike the FHWA’s regula- tions, FEMA regulations do not formally establish classes of action. Nonetheless, FEMA’s regulations re- quire the agency to determine, first, whether the pro- posed action normally requires an EIS, may be subject to a categorical exclusion, or whether an environmental assessment should be prepared. See 44 C.F.R. § 10.8. 24 23 C.F.R. § 771.117(c)-(d). Following CEQ’s ap- proach, FHWA regulations require that categorical ex- clusions not be applied if “unusual circumstances” make such application inappropriate. Id. § 771.118(b). FHWA has also issued guidance for categorical exclusions. See FHWA Technical Advisory T 6640.8A, Guidance for Preparing and Processing Environmental and Section Century Act (MAP-21) mandates that FHWA adopt additional categorical exclusions for a vari- ety of transportation projects.25 The agency has completed or initiated rulemakings to comply with these mandates.26 Judicial scrutiny of an agency’s determination that an action qualifies for a categorical exclusion or a FONSI is typically conducted under the def- erential “arbitrary and capricious” standard of review, which is codified in the Federal Adminis- trative Procedure Act.27 In some circumstances, however, disputes over the application of a categorical exclusion may not involve significant factual issues, but instead con- cern the meaning of the regulatory text on which an agency’s categorical exclusion determination is based. The courts, in these cases, have extended deference to agencies' views, holding that “an agency's interpretation of the meaning of its own categorical exclusion should be given control- ling weight unless plainly erroneous or inconsis- 4(f) Documents (Oct. 30, 1987) [hereinafter “TA 6440.8A”], http://environment.fhwa.dot.gov/projectdev/ impTA6440.asp. (last visited June 17, 2014) 25 MAP-21 requires the Department of Transporta- tion to commence rulemakings to expand or create new CATEXs (Categorical Exclusions) for a number of cate- gories of projects. See P.L. 112-141, §§ 1314-1318, 126 Stat. 547-51. 26 The rules FHWA has proposed to comply with MAP-21 include: (1) CATEXs for projects within an ex- isting operational right-of-way, see Environmental Im- pact and Related Procedures, Notice of Proposed Rule- making, 78 Fed. Reg. 13609 (Feb. 28, 2013); (2) CATEXs for projects involving limited federal assistance, see id.; (3) new CATEXs for projects proposed by state, local and other government agencies, see Environmental Im- pact and Related Procedures; Programmatic Agree- ments and Additional Categorical Exclusions, Notice of Proposed Rulemaking, 78 Fed. Reg. 57587 (Sept. 19, 2013); and (4) re-designation of certain d-list CATEXs to the status of c-list CATEXs. See id. 27 See, e.g., City of Alexandria v. Federal Highway Admin., 756 F.2d 1014, 1017 (4th Cir. 1985) (review of categorical exclusion); North Idaho Community Action Network v. U.S.D.O.T., 545 F.3d 1147, 1152 (9th Cir. 2008) (review of FONSI). Some courts apply a “reason- ableness” standard in reviewing agency determinations under NEPA. See, e.g., Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981). But as explained by the Court in City of Alexandria, “[a]s a practical matter there is little difference between [the arbitrary and ca- pricious standard] and the ‘reasonableness’ stan- dard….”). Id.

7 tent with the terms used in the regulation.”28 Courts have, however, rejected agency attempts to shoehorn projects into a categorical exclusion when the governing regulatory text embraces projects of a much smaller scale or a different character.29 The final class of agency actions, Class I, in- cludes actions that will have a significant impact on the environment and will ordinarily require the preparation of an EIS. FHWA has provided four nonexclusive, but recurring categories of pro- jects that are normally deemed to fall into this class.30 Other actions that require an EIS include those that an EA or other environmental study reveals to have significant effects on the human environment. b. The Adequacy of an EIS.—While a significant amount of litigation under NEPA involves chal- lenges to an agency’s decision to classify a project as a categorical exclusion or issue a FONSI, the courts have also frequently been called upon to address the adequacy of an agency’s EIS. CEQ regulations provide a standard format for an EIS which “should be followed unless the agency de- termines that there is a compelling reason to do otherwise.”31 FHWA has prepared guidance for the preparation of an EIS that largely tracks CEQ’s standard format but provides a more de- tailed set of suggestions about what should be in- cluded.32 One important decision that an agency must make in considering the contents of an EIS con- cerns how the proposed action is to be defined. The resolution of this issue will have determining influence on the major components of the EIS. One type of challenge occasionally raised in judi- cial challenges concerns the manner in which a project is defined, and involves “segmentation.” Improper segmentation involves dividing a major federal action into artificially smaller components in a way that minimizes the environmental im- pacts to be considered by the agency.33 FHWA 28 West v. Sec’y of Transp., 206 F.3d 920, 928 (9th Cir. 2000) (quoting Alaska Center for the Envt. v. U.S. Forest Service, 189 F.3d 851, 857 (9th Cir. 1999); Na- tional Trust for Historic Preservation in U.S. v. Dole, 828 F.2d 776, 782 (D.C. Cir. 1987). 29 West, 206 F.3d at 928. 30 23 C.F.R. § 771.115(a)(1)-(4). 31 40 C.F.R. § 1502.10. 32 TA 6640.8A, supra note 24, http://environment. fhwa.dot.gov/projdev/impta6640.asp. 33 See, e.g., Save Barton Creek Ass’n v. FHWA, 950 F.2d 1129, 1140 (5th Cir. 1992). regulations address the segmentation issue by requiring that proposed highway projects: 1. Connect logical termini and be of sufficient length to address environmental matters on a broad scope. 2. Have independent utility or independent sig- nificance, i.e., be usable and be reasonable expen- ditures even if no additional transportation im- provements in the area are made. 3. Do not restrict the consideration of alternatives for other reasonably foreseeable transportation improvements.34 The courts have generally applied the same or similar criteria in determining whether a major federal action has been improperly segmented, though most have considered the “crucial inquiry” to be whether the “independent utility” criterion has been met.35 Once an appropriate description of the project has been formulated, the key components of an EIS include: 1) a statement of the purpose and need for the proposed action, 2) a compilation of reasonable alternatives, including a “no action” alternative, 3) a description of the affected envi- ronment, and 4) a description and analysis of the environmental consequences of the alternatives, and measures to mitigate those impacts.36 CEQ regulations and FHWA guidance elaborate upon these components in some detail. 37 In some circumstances, it may be necessary for an agency to supplement an EIS. CEQ regulations contemplate the preparation of a supplemental EIS if the agency makes “substantial changes” to its proposed action or “significant new circum- stances or information” become available.38 In Marsh v. Oregon Natural Resources Council,39 the Supreme Court held that an agency’s decision not to prepare a supplemental EIS is subject to the arbitrary and capricious standard of review.40 34 23 C.F.R. § 771.111(f). 35 See, e.g., Piedmont Heights Civic Club v. More- land, 637 F.2d 430, 440 (5th Cir. 1981). 36 See 40 C.F.R. §§ 1502.13-1502.16. 37 See id. FHWA guidance provides considerable de- tail about the preparation and contents of EISs. See TA 6640.8A, supra note 24, http://environment.fhwa.dot. gov/projdev/impTA6640.asp. 38 40 C.F.R. § 1502.9(c). FHWA’s regulations are similar. See 23 C.F.R. § 771.130. 39 490 U.S. 360 (1989). 40 Id. at 375-76.

8 That standard of review also generally governs challenges to the adequacy of an agency’s EIS. 41 2. The Clean Water Act The Federal Clean Water Act (CWA) aims to restore and maintain the chemical, physical, and biologic integrity of the nation’s surface waters.42 The heart of the CWA is the simple prohibition contained in section 301(a): “Except as in compli- ance with [various sections of the CWA], the dis- charge of any pollutant by any person is unlaw- ful.”43 The term “discharge of any pollutant” is statutorily restricted to include only additions of pollutants to “navigable waters” from “point sources.”44 Thus, the key jurisdictional terms of the CWA’s regulatory program are “navigable wa- ters” and “point sources.”45 If a discharge falls within these jurisdictional parameters, it is unlawful unless authorized by and in compliance with the terms of a permit issued under one or more of the CWA’s permit programs. A full and complete discussion of the aforemen- tioned key jurisdictional terms is beyond the scope of this digest. However, in general, and notwith- standing recent restrictive decisions by the United States Supreme Court,46 the term “navigable wa- ters,” defined in the CWA as “waters of the United States,”47 has been broadly construed to include surface waters that are navigable-in-fact, most tributaries of those navigable-in-fact waters, and adjacent wetlands.48 The courts have similarly interpreted the “point source” broadly to include not only industrial outfalls of various varieties, 41 For a discussion of the standards, see Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d 669, 678 (5th Cir. 1992). 42 33 U.S.C. § 1251(a). 43 33 U.S.C. § 1311(a). 44 In relevant part, the CWA defines the terms “dis- charge of a pollutant” or “discharge of pollutants” to “mean (A) any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). 45 The term “addition” has been the subject of recent judicial decisions that, to some extent, limit the juris- dictional reach of the CWA. See infra note 61. 46 See Rapanos v. United States, 547 U.S. 715 (2006), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). 47 33 U.S.C. § 1362(7). 48 See 33 C.F.R. § 328.3(a); 40 C.F.R. § 122.2. EPA and the Corps of Engineers have recently proposed rules clarifying the term “waters of the United States” in light of the recent Supreme Court decisions. See 79 Fed. Reg. 22188 (Apr. 21, 2014). but also land-clearing and other construction equipment. 49 Two permitting programs are established un- der the CWA. Section 402 of the CWA establishes the National Pollutant Discharge Elimination System, which is a permit program governing dis- charges of any pollutants other than “dredged or fill materials.”50 This program is administered by the US Environmental Protection Agency (EPA), or by states with EPA-approved permitting pro- grams;51 tribal authorities with approved pro- grams may also administer the permit program within their jurisdictions.52 The state programs are sometimes referred to as State Pollutant Dis- charge Elimination Systems, or, SPDES. Cur- rently, 46 states have approved SPDES programs and serve as the permit authority within their respective jurisdictions.53 The second major per- mitting program is the Section 404 program, which governs the discharge of dredged and fill material.54 This program is administered almost exclusively by the United States Army Corps of Engineers (the Corps). To date, only two states— Michigan and New Jersey—have approved partial Section 404 programs.55 Transportation projects may require permits under both the National Pol- lutant Discharge Elimination System and Section 404 permit programs. In addition to these permit programs, Section 401 of the CWA requires that “any applicant for a Federal license or permit to conduct any activity, including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters,” provide to the federal permitting or licensing authority a water quality certification “from the State in which the discharge originates or will originate.”56 As part of the certification process, states are au- thorized to condition their certification on an ap- plicant’s compliance with “any effluent limitations and other limitations…and with any other appro- 49 See, e.g., Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983). 50 33 U.S.C. § 1342(a). 51 33 U.S.C. § 1342(b) 52 33 U.S.C. § 1377(e). 53 See State Program Status, http://cfpub.epa.gov/npdes/statestats.cfm. Indian tribes are also authorized to assume permitting authority within their jurisdictions. See 33 U.S.C. § 1377(e). 54 33 U.S.C. § 1344(a). 5540 C.F.R. Part 233, Subpart H. 56 33 U.S.C. § 1341(a).

9 priate requirement of State law.”57 These condi- tions must then be incorporated into the federal permit or license. Federal agencies are prohibited from issuing permits or licenses unless a state certification has been obtained by the applicant or such certification has been waived under the terms of the CWA.58 To facilitate a discussion of the CWA require- ments that may affect transportation projects, it is important to distinguish between a variety of permits that may be available or applicable under the CWA. “Individual permits” are permits issued by an appropriate permitting authority (either a state or the EPA) on an individual, case-by-case basis, and include site-specific effluent limitations governing discharges and other general permit conditions.59 “General permits,” by contrast, are essentially permits by rule. They authorize dis- charges associated with classes or categories of activities, so long as a prescribed set of generic conditions is met. In most cases, an activity will be authorized under a general permit with the submission by the applicant to the permitting au- thority of a “notice of intent” (NOI) to be covered by the permit. General permits can be issued on a nationwide, regional, state, local, or programmatic basis. a. The Section 402 National Pollutant Discharge Elimination System Permitting Program.— Permits issued under the Section 402 National Pollutant Discharge Elimination System Program typically govern ongoing wastewater management practices at industrial facilities. Transportation systems and projects rarely involve such dis- charges, but they do frequently involve channeled stormwater discharges. This channeled stormwa- ter is a “discharge of a pollutant,” and thus, sub- ject to regulation under the National Pollutant Discharge Elimination System Program.60 Simi- larly, land disturbance associated with transpor- tation construction projects can release sediment and other pollutants that are carried into receiv- ing waters during wet weather events. Section 57 33 U.S.C. § 1341(d). 58 33 U.S.C. § 1341(a). 59 The Corps’ definition of an individual permit can be found at 33 C.F.R. § 323.2(g). 60 EPA regulations define the term “discharge of a pollutant” to “include[] additions of pollutants into wa- ters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to treatment works.” 40 C.F.R. § 122.2. 402(p) of the National Pollutant Discharge Elimi- nation System Program includes special provi- sions that address stormwater discharges. b. The Section 404 Program.—Many transporta- tion projects will involve disturbances to wetlands or surface waters that are considered “navigable waters” under the CWA. If those disturbances in- clude any “discharge of dredged or fill material,” they are subject to the permitting requirements of Section 404 of the CWA unless a specific exemp- tion is applicable. The terms “discharge of dredged material” and “discharge of fill material” are both defined by the Corps and EPA regula- tions. 61 The Corps has defined the “discharge of 61 33 C.F.R. § 323.2(d)(3) (Corps definition); 40 C.F.R. § 232.2. The exclusion of “incidental fallback” is a re- sponse to National Mining Assn. v. Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998), which invalidated what had become known as the “Tulloch Rule.” The Tulloch Rule was promulgated by the Corps and EPA as part of a settlement in North Carolina Wildlife Federation v. Tulloch, Civ. No. C90–713–CIV–5–BO (E.D. N.C.1992). It defined “discharge of dredged material” to include “[a]ny addition, including any redeposit, of dredged ma- terial, including excavated material, …which is inci- dental to any activity, including mechanized landclear- ing, ditching, channelization, or other excavation.” In National Mining Assn., the court noted that the term “discharge of a pollutant” is defined in the CWA in such a way as to require an “addition” of pollutants, see 33 U.S.C. § 1362(12), and that “cannot reasonably be said to encompass the situation in which material is re- moved from the waters of the United States and a small portion of it happens to fall back. Because incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge.” National Mining Assn., 145 F.3d at 1404. Accordingly, the court invali- dated the Tulloch Rule to the extent it included inciden- tal fallback from dredging operations in the definition of “discharge of dredged material.” The agencies responded by excluding incidental fall- back from the definition. 64 Fed. Reg. 25120 (May 10, 1999), and this rule change became known as the “1999 Rule.” This rule was held to conform to the require- ments of National Mining Assn. in subsequent litiga- tion. See American Mining Congress v. U.S. Army Corps of Engineers, 120 F. Supp. 2d 23 (D.D.C. 2000). The agencies later promulgated a rule that included a definition of “incidental fallback,” 66 Fed. Reg. 4550 (Jan. 17, 2001), but that rule was invalidated in Na- tional Association of Home Builders v. Army Corps of Engineers, No. 01-0274, 2007 WL 259944 (D.D.C. Jan. 30, 2007). The current rule was promulgated in 2008 and it returns the definition of discharge of dredged material to the terms of the 1999 Rule, with a minor exception not relevant here. See 73 Fed. Reg. 79641 (Dec. 30, 2008).

10 fill material” to include, among other things, “[p]lacement of fill that is necessary for the con- struction of any structure or infrastructure in a water of the United States; the building of any structure, infrastructure, or impoundment requir- ing rock, sand, dirt, or other material for its con- struction;” and “road fills.”62 Like the National Pollutant Discharge Elimi- nation System Program discussed above, permits under the Section 404 program may be issued on a general or individual basis. The Corps and its district offices have issued a broad variety of gen- eral permits that may potentially apply to trans- portation projects. These permits are authorized by the CWA for activities that “will cause only minimal adverse environmental effects when per- formed separately, and will have only minimal cumulative adverse effect on the environment.”63 General permits may be issued on a State, re- gional, or nationwide basis.64 The Corps periodi- cally issues and reissues a broad variety of gen- eral permits that are available on a nationwide basis.65 Three of the currently authorized nationwide permits (NWPs) warrant notice here because of their relevance to transportation projects and emergency situations.66 The first of these is NWP- 3, titled “Maintenance.” It authorizes discharges of dredged or fill material in connection with the repair, rehabilitation, or replacement of previ- ously authorized “serviceable structures.” The au- thorization is limited to returning the structure to its pre-existing condition. The second NWP of par- ticular relevance to transportation projects is NWP-14, Linear Transportation Projects. It au- thorizes activities required for the construction, expansion, modification, or improvement of roads and highways, subject to acreage limitations on losses of waters of the United States. The third is 62 33 C.F.R. § 323.2(f). 63 33 U.S.C. § 1344(e)(1). 64 Id. 65 The most recent issuance of nationwide permits was completed by the Corps on February 21, 2012. See 77 Fed. Reg. 10184 (Feb. 21, 2012). A few minor amendments were made to the nationwide permit pro- gram on January 28, 2013. See 78 Fed. Reg. 5726 (Jan. 28, 2103). 66 The details of the current NWPs, including the two discussed in the text, can be found in 2012 Nationwide Permits, Conditions, District Engineer’s Decision, Fur- ther Information, and Definitions (with corrections), available at http://www.usace.army.mil/Portals/2/docs/ civilworks/nwp/2012/NWP2012_corrections_21-sep- 2012.pdf. NWP-23, which authorizes activities that have been determined by the action agency to be cate- gorically excluded under NEPA, provided that the Corps has concurred with the determination. The Corps has concurred in FHWA’s determination that emergency repairs are categorically excluded from NEPA; thus those activities are authorized under NWP-23.67 For discharges of dredged and fill material not authorized by general permits, an individual per- mit is required. These permits may be issued by the relevant Corps District Engineer, provided that applicable regulatory criteria are met. These criteria include regulations, known as the Section 404 Guidelines, issued by EPA.68 In general, these regulations require that discharge permits be is- sued only where there is no practicable alterna- tive to the discharge, that any impacts to jurisdic- tional waters be avoided or minimized, and compensatory mitigation is undertaken for un- avoidable impacts. In addition to the Section 404 Guidelines, dredge and fill permits must satisfy the Corps’ “public interest” review, which involves weighing a variety of environmental, economic, and social factors.69 Finally, before issuing a Sec- tion 404 permit, the Corps must comply with NEPA, consult with other federal agencies such as EPA and the US Fish and Wildlife Service (Fish & Wildlife), and obtain a water quality certification, or waiver of certification, from the relevant state authority pursuant to Section 401 of the Clean Water Act. 70 3. The Clean Air Act The Clean Air Act creates a complex regulatory program of cooperative federalism in which EPA and the States share responsibilities for protect- ing public health and the environment from the dangers of air pollution. The heart of the Clean Air Act is Title I, which authorizes, among other things, the promulgation by EPA of National Am- bient Air Quality Standards (NAAQS).71 The 67 See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05-07 (Dec. 8, 2005), available at http://www.usace.army.mil/Portals/2/docs/civilworks/RG LS/rgl05-07.pdf. 68 See 40 C.F.R. Part 230. 69 See 33 C.F.R. § 320.4. 70 For a general overview of the Section 404 permit- ting process, see Stephen M. Johnson, Individual Per- mits, in WETLANDS LAW AND POLICY: UNDERSTANDING SECTION 404, 191-219 (K. Connolly, S. Johnson, & D. Williams, eds. 2005). 71 See 42 U.S.C. § 7409.

11 NAAQS are implemented through state imple- mentation plans, which may include a variety of source controls and transportation control meas- ures to reduce emissions, and the resulting con- centration in the ambient air, of those pollutants for which NAAQS have been established.72 In general, the air quality impacts of transpor- tation projects are subject to oversight by state and local governments through planning proc- esses and transportation control measures that are incorporated into state implementation plans. To ensure that federally funded transportation projects are consistent with state implementation plans, and that such projects do not undermine the states’ efforts to attain the NAAQS, the Clean Air Act subjects such projects to what is known as a “conformity determination.”73 The conformity requirement applies only in those areas that are not attaining the NAAQS for any of the following pollutants: ozone, carbon monoxide, particulate matter, or nitrogen dioxide.74 FHWA is responsi- ble for making conformity determinations for transportation projects that the agency funds or approves.75 For FHWA transportation projects, conformity can be determined in either of two ways. First, the project will be deemed to conform to an implemen- tation plan if: 1) the project comes from a con- forming transportation plan or program; 2) the design and scope of the project have not changed since a conformity determination regarding the plan and program from which the project is de- rived; and 3) the design and scope of the project at the time of the conformity determination for the program and plan was adequate to determine emissions. Second, for projects not meeting the first set of criteria, conformity can be determined “only if it is demonstrated that the projected emissions from such project, when considered to- gether with emissions projected for the conform- ing transportation plans and programs within the 72 See id. § 7410. The state implementation plans are initially promulgated by the States for all air quality control regions within their respective jurisdictions, and are subject to review and approval by EPA. Should a State fail to promulgate an acceptable state implemen- tation plan, EPA is required to promulgate a federal implementation plan for the pertinent air quality con- trol region. See id. 73 See generally Transportation Conformity, http:// www.epa.gov/omswww/stateresources/transconf/index. htm. 74 40 C.F.R. § 93.102(b); see Environmental Defense Fund v. EPA, 82 F.3d 451, 455n.2 (D.C. Cir. 1996). 75 Id. § 93.104(d). nonattainment area, do not cause such plans and programs to exceed the emission reduction projec- tions and schedules assigned to such plans and programs in the applicable implementation plan.”76 EPA regulations provide greater detail about project-level conformity determinations.77 EPA’s conformity regulations include a number of project-level exemptions from the conformity determination requirements. Among these exemp- tions are the following: projects that correct, im- prove, or eliminate a hazardous location or fea- ture; pavement resurfacing and/or rehabilitation; emergency relief; widening narrow pavements or reconstructing bridges (no additional travel lanes); repair of damage caused by natural disas- ters, civil unrest, or terrorist acts, except projects involving substantial functional, locational, or capacity changes.78 The Clean Air Act also provides EPA with emergency powers that may affect transportation projects. Section 303 of the Clean Air Act author- izes the administrator of EPA to act in response to “evidence that a pollution source or combination of sources (including moving sources) is present- ing an imminent and substantial endangerment to public health or welfare, or the environment.”79 When it is not practicable to seek judicial relief, the administrator may “issue such orders as may be necessary to protect public health or welfare or the environment.”80 4. The Resource Conservation and Recovery Act The Solid Waste Disposal Act, better known as the Resource Conservation and Recovery Act (RCRA) for the 1984 amendments to the Solid Waste Disposal Act, is a “cradle-to-grave” pro- gram for the management of hazardous wastes.81 This detailed, complex regulatory program im- poses obligations on all persons involved in the lifecycle of hazardous wastes: those who generate, transport, store, treat, or dispose of hazardous wastes. The RCRA program is designed to ensure that the wastes are managed in ways that do not present hazards to public health or the environ- 76 42 U.S.C. §§ 7506(c)(2)(C)-(D). 77 See 40 C.F.R. § 93.109. 78 Id. § 93.126. 79 42 U.S.C. § 7603. 80 Id. 81 The regulatory provisions RCRA governing haz- ardous wastes are primarily found in Subchapter III of the legislation, 42 U.S.C. §§ 6921–6939g.

12 ment.82 The basic requirements of the regulatory program include: • Generators: must determine whether the wastes they generate or that come within their possession and control are hazardous; maintain records that identity the quantity, characteristics, and disposition of any hazardous wastes that are generated; obtain a waste identification number for the waste from EPA; if offsite disposal is contemplated, properly package and label; docu- ment the movement and treatment, storage, or disposal of the waste through a waste manifest tracking program; and select only permitted treatment, storage, or disposal facilities for the disposition of hazardous wastes.83 • Transporters: accept hazardous wastes for transport only if the wastes are accompanied by appropriate manifest; deliver hazardous wastes only to facilities designated. 84 • Treatment, Storage, or Disposal Facilities: obtain a permit from EPA or an approved state program and comply with applicable recordkeep- ing, financial responsibility, and performance and design standards, and take corrective action to address any onsite releases of hazardous wastes.85 RCRA also seeks to discourage land disposal of hazardous wastes. The statute prohibits land dis- posal and storage of most hazardous wastes unless the wastes are pretreated in accordance with EPA regulations.86 Federal agencies that have jurisdiction over any solid waste management facility or disposal site, or that engage in any activity that may result in the management or disposal of solid or hazard- ous wastes, “shall be subject to, and comply with, all Federal, State, interstate, and local re- quirements, both substantive and procedural, 82 The scope of the RCRA’s regulatory program for managing hazardous wastes is informed by statutory and regulatory definitions of the terms “solid waste” and “hazardous waste.” See 42 U.S.C. § 6903; 40 C.F.R. §§ 261.2 (solid waste) and 261.3 (hazardous waste). 83 See 40 C.F.R. Part 262. A “generator” is defined by EPA regulations as “any person, by site, whose act or process produces hazardous waste identified or listed [under EPA regulations] or whose act first causes a hazardous waste to become subject to regulation.” Id. § 260.10 84 See id. Part 263. 85 See id. Part 264. EPA regulations provide detailed definitions of the terms “treatment,” “storage,” and “disposal.” See id. § 260.10. 86 See 42 U.S.C. § 6924. …respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements.” 87 Like the Clean Air Act, the RCRA includes a grant of emergency powers to EPA. Section 7003 authorizes EPA to bring suit against “any per- son…who has contributed or is contributing to” “the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste [that] may present an imminent and substantial endangerment to health or the environment.” 88 That section also authorizes EPA to “take other action…including, but not limited to, issuing such orders as may be necessary to pro- tect public health and the environment.”89 Unlike the Clean Air Act, however, RCRA supplements EPA’s emergency powers by authorizing “any person” to bring suit to secure relief against persons whose past or present handling of solid or hazardous wastes may present an imminent and substantial endangerment to health or the environment. 90 5. The Comprehensive Environmental Response, Compensation, and Liability Act The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) pro- vides broad authority for government responses to releases of hazardous substances that may pose an imminent and substantial threat to public health and the environment and provides mecha- nisms for conducting longer-term remediation of contaminated facilities. It also imposes broad li- ability for the costs of such responses on classes of “potentially responsible parties.” The purposes of CERCLA are to promote timely responses to dan- gerous releases of hazardous substances, promote cleanup of sites contaminated with hazardous substances, “and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the contamination.” 91 CERCLA’s broad reme- dial focus differentiates it from the Safe Drinking Water Act’s (SDWA) more regulatory and preven- tative orientation, though there can be some over- lap between the two programs. For example, 87 42 U.S.C. § 6961(a). 88 Id. § 6973(a). 89 Id. 90 Id. § 6972(a)(1)(B). 91 Burlington Northern and Santa Fe Ry Co. v. United States, 556 U.S. 599, 602 (2009) (citing Consoli- dated Edison Co. v. UGI Util., Inc., 423 F.3d 90,94 (2d Cir. 2005)).

13 EPA’s emergency authority under the SWDA may be invoked simultaneously with CERCLA’s re- sponse and liability authorities.92 a. Response Authorities.—To promote timely re- sponses to releases of hazardous substances, CERCLA directs the president to revise and up- date a National Contingency Plan (NCP) to in- clude “procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants.” 93 The legislation also creates the “Superfund,” which can be used to finance gov- ernment response actions and, in some circum- stances, reimburse private parties for costs in- curred in complying with the requirements of the NCP. 94 CERCLA imposes an obligation on any “person in charge” of a vessel or facility to notify the Na- tional Response Center of a release of “reportable quantities” of hazardous substances “as soon as he has knowledge of” such a release. 95 When notified of a release or threatened release into the envi- ronment, the federal government may undertake or arrange for short-term removal actions and longer-term remedial actions. A removal action is a short-term response designed to “prevent, minimize, or mitigate damage to the public health or welfare or to the environment.”96 A remedial action is “permanent remedy taken instead of or in addition to removal actions…to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial dan- ger to present or future public health or welfare or the environment.”97 CERCLA’s response authorities provide for three different mechanisms to address hazardous conditions. First, upon determining that a release or threatened release of hazardous substances poses an “imminent and substantial endanger- ment to the public health or welfare or the envi- ronment,” EPA may initiate response actions by using funds from the Superfund or by contracting 92 See, e.g., United States v. Aceto Agricultural Chem. Corp., 872 F.2d 1373 (8th Cir. 1989). 93 42 U.S.C. § 9605(a). The NCP was originally man- dated by the Clean Water Act. See 33 U.S.C. § 1321(d). The current version of the NCP is codified at 40 C.F.R. Part 300. 94 42 U.S.C. § 9611. 95 Id. § 9603(a). EPA regulations governing the re- porting requirement, including specified “reportable quantities,” can be found at 40 C.F.R. Part 302. 96 Id. § 9601(23). 97 Id. § 9601(24). with a responsible party.98 Alternatively, EPA may issue unilateral administrative orders direct- ing potentially responsible parties to take such action “as may be necessary to protect public health and welfare and the environment.” 99 Fi- nally, the federal government is authorized to ini- tiate an action in federal district court “to secure such relief as may be necessary to abate [an im- minent and substantial] danger or threat.”100 b. Liability Provisions.—CERCLA is designed to shift the costs of response actions to those who bear some responsibilities for the facility, release, or hazardous substances involved. The legislation has been interpreted to impose “a strict liability standard…determined from traditional and evolv- ing principles of common law.” 101 If the harm caused by a release is “indivisible,” liability is joint and several. 102 The scope of liability includes all costs of removal and/or remedial action, dam- ages for injury to natural resources, and the costs of appropriate health assessments.103 Four classes of entities associated with a facil- ity from which there is a release or threatened release of hazardous substances and which causes the incurrence of response costs are potentially liable under CERCLA. They are: 1) the current owner or operator of the facility; 2) any person who at the time of disposal of a hazardous sub- stances owned or operated the facility; 3) any per- son who “arranged for disposal or treatment” of hazardous substances at the facility; and 4) any person who selects the facility and transports hazardous substances to such facility.104 Extensive case law has given content to the four classes of responsible parties. In general, the statute has been interpreted expansively to net in virtually any entity that has a direct or indirect connection to the facility from which a release has occurred or to the hazardous substances that are found at such a facility. The statute does include a number of exclusions or exemptions from these categories.105 98 See id. § 9604(a). 99 Id. § 9606(a). 100 Id. 101 Burlington N. & S.F. Ry. v. United States, 566 U.S. 599, 613 (2009) (quoting United States v. Chem- Dyne Corp., 572 F. Supp. 802, 805, 808 (S.D. Ohio 1983)). 102 Id. at 614-15. 103 42 U.S.C. § 9607(a)(4). 104 Id. §§ 9607(a)(1)-(4). 105 For a discussion of exclusions or exemptions from CERCLA liability, see R. PERCIVAL, C. SCHROEDER, ET

14 CERCLA also includes some affirmative de- fenses to claims of liability, but these defenses have been strictly limited by the courts. Section 107(b) provides that an otherwise liable party may escape liability by proving by the preponder- ance of the evidence that a release or threatened release was “caused solely by (1) an act of God; (2) an act of war; (3) an act or omission by a third party other than an employee or agent of the de- fendant, or one whose act or omission occurs in connection with a contractual relationship, exist- ing directly or indirectly, with the defendant”; or any combination of these events; and that (a) the defendant “exercised due care with respect to the hazardous substance concerned…and (b) the de- fendant took precautions against foreseeable acts or omissions of any such third party and the con- sequences that could foreseeably result from such acts or omissions.”106 The statute defines an “act of God” as “an unanticipated grave natural disas- ter or other natural phenomenon of an excep- tional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.”107 The most complex components of the affirmative defenses involve other aspects of the definition of “owner or operator” and the definition of “contrac- tual relationship” as applicable to the “third- party” defense found in Section 107(b).108 The courts have held that in order to present a prima facie case for liability under CERCLA, the complaining party must allege and prove that 1) the contaminated site is a “facility”; 2) there has been a release or a threatened release of a haz- ardous substance from that facility; 3) the release or threatened release has caused the plaintiff to incur response costs that are consistent with the NCP; and 4) the defendant falls into one or more of the four classes of responsible parties.109 The terms “facility,”110 “hazardous substance,”111 and “release”112 are all very broadly defined by CERCLA, so that in most cases, these require- ments of a prima facie case are easily satisfied. In addition, and notably, the courts have refused to AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 426–28 (6th ed. 2009). 106 Id. § 9607(b). 107 Id. § 9601(1). 108 See id. §§ 9601(20), 9601(35). 109 3550 Stevens Creek Assocs. v. Barclay’s Bank of California, 915 F.2d 1355, 1358 (9th Cir. 1990). 110 See 42 U.S.C. 9601(9). 111 See id. at 9601(14). 112 See id. § 9601. require proof that the defendant’s conduct caused a release or threatened release; in the words of one court, “CERCLA does away with a causation requirement.”113 An action to recover response costs may be ini- tiated by federal and state authorities or by pri- vate parties who have incurred response costs.114 State and federal agencies may recover all re- sponse costs “not inconsistent with the national contingency plan,” 115 while private parties may only recover “necessary costs” that are “consistent with the national contingency plan.”116 Responsi- ble parties may also be subject to claims for con- tribution from other responsible parties. Respon- sible parties that have resolved their liability to the federal government or to a State in an admin- istrative or judicially approved settlement are immune from claims for contribution “regarding matters addressed in the settlement,”117 but are not similarly immune from private cost recovery actions brought pursuant to section 107(a)(4)(b).118 C. Laws Protecting Particular Resources There are a number of laws that provide pro- tections for particular environmental resources or that require a federal action agency to consult with other agencies when resources may be af- fected by the agencies’ proposals or actions.119 In 113 United States v. Alcan Aluminum Co., 990 F.2d 711, 721 (2d Cir. 1993); see also New York v. Shore Re- alty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985). 114 Private cost recovery actions under Section 107 of CERCLA must be distinguished from private suits for contribution from other responsible parties under Sec- tion 113 of CERCLA. Only private parties who pay to satisfy a settlement agreement or judgment may seek contribution pursuant to Section 113 of CERCLA. On the other hand, payment of money to satisfy a settle- ment obligation or judgment is not considered to be the incurrence of response costs that will support a private cost recovery action under Section 107. See United States v. Atlantic Research Corp., 551 U.S. 128 (2007). 115 42 U.S.C. § 9607(a)(4)(A). 116 Id. 9607(a)(4)(B). See Artesian Water Co. v. Gov- ernment of New Castle County, 659 F. Supp. 1269, 1278–79 (D. Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988). 117 42 U.S.C. § 9613(f)(2). 118 Atlantic Research Corp., 551 U.S. at 140. 119 For a comprehensive survey of environmental laws applicable to transportation projects, see BRIAN W. BLAESSER, DANIEL R. MANDELKER & MICHAEL S. GIAMO (supplemented by Lew Bricker & Frederick Goodwill), SELECTED STUDIES IN TRANSPORTATION LAW,

15 this section, we briefly discuss three of the laws most commonly encountered in transportation projects and most likely to be implicated in the emergency response environment: Section 4(f) of the Department of Transportation Act, the En- dangered Species Act, and the National Historic Preservation Act. 1. Section 4(f) of the Department of Transportation Act The Department of Transportation Act of 1966 included Section 4(f), which as amended is now codified at 49 U.S.C. § 303(c).120 The applicable provision states: the Secretary [of Transportation] may approve a trans- portation program or project (other than any project for a park road or parkway under section 204 of title 23) re- quiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of na- tional, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction) only if— (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site.121 More recent amendments have added provi- sions permitting approval of projects involving the use of Section 4(f) resources if the Secretary of Transportation determines that project’s impacts on such resources will be de minimis.122 The find- ing of a de minimis impact on protected resources subsumes the agency’s duty to consider reason- able and prudent alternatives or to engage in planning to minimize impacts. 123 There are two categories of properties that are subject to Section 4(f)’s restrictions: 1) land of public parks, recrea- tion areas, and wildlife and waterfowl refuges considered to be of national, State, or local signifi- cance; and 2) land of historic sites considered to be of national, State, or local significance. To fall within the first category, the property must be publicly owned, open for public use, and be con- sidered significant for park, recreation, or refuge ENVIRONMENTAL LAW AND TRANSPORTATION (National Cooperative Highway Research Program, 2010). 120 A similar provision was contained in the Federal Highway Act, and is codified at 23 U.S.C. § 138(a). 121 49 U.S.C. § 303(c). 122 Id. § 303(d). 123 23 C.F.R. § 774.17 (4). purposes.124 The significance of land for park, rec- reation, or refuge purposes will be presumed in the absence of a determination to the contrary by the official with jurisdiction over the land in ques- tion.125 For multiple use lands, such as national and state forests, FHWA regulations provide that Section 4(f) will apply “only to those portions of such lands which function for, or are designated in the plans of the administering agency as being for, significant park, recreation, or wildlife and waterfowl refuge purposes.”126 Land of an historic site, including archaeologi- cal sites discovered during a project’s implemen- tation,127 are subject to Section 4(f) only if they are listed, or eligible for listing, on the National Reg- ister of Historic Places, unless FHWA determines that the application of Section 4(f) is “otherwise appropriate.”128 Unless a specific exemption ap- plies, a historic site that is listed or eligible for listing on the National Register is considered “sig- nificant” for purposes of Section 4(f) even if state or local officials with jurisdiction over the prop- erty consider the site relatively unimportant.129 The Section 4(f) process for addressing historic properties is integrated with and subject to the process of complying with Section 106 of the Na- tional Historic Preservation Act, which is dis- cussed in greater detail below.130 FHWA regulations broadly construe the term “use.” Thus, a protected property is “used” for purposes of Section 4(f) when: 1) the land is per- manently incorporated into a transportation facil- ity; 2) it is temporarily occupied in a way that is “adverse in terms of the statute’s preservation purpose”; or 3) there is a constructive use of the property.131 A protected property will be consid- ered to be constructively used “when the transpor- 124 See U.S. Dep’t of Transportation, Federal High- way Admin, Section 4(f) Policy Paper (2012), available at http://environment.fhwa.dot.gov/4f/4fpolicy.asp#hs. 125 23 C.F.R. § 774.11(c). 126 Id. § 774.11(d). 127 Archaeological resources are not subject to Section 4(f) if FHWA finds that the resource “is important chiefly because of what can be learned by data recovery and has minimal value for preservation in place” and the official with jurisdiction has been consulted and has not objected to the finding. Id. § 774.13(b). 128 See id. § 774.11(e)(1). 129 23 C.F.R. § 774.11(e); see Stop H-3 Assn. v. Cole- man, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 440-45 (1976). 130 See 23 C.F.R. § 774.5(b)(1). 131 23 C.F.R. § 774.17.

16 tation project does not incorporate land from a Section 4(f) property, but the project’s proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired.”132 The courts have similarly concluded that, “[t]he term ‘use’ is to be broadly construed, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project.”133 To use a protected property for a FHWA- approved project, the agency must determine that there are no feasible and prudent alternatives and that the project incorporates all possible planning to minimize harm to the protected property. In Citizens to Preserve Overton Park v. Volpe,134 the Supreme Court interpreted the “no feasible and prudent alternative” requirement. It noted that for an alternative to be considered not “feasible,” “the Secretary must find that as a matter of sound engineering it would not be feasible to build the highway along any other route.”135 In considering whether a feasible alternative is “prudent,” the Court held that a “wide-ranging balancing of in- terests” was inappropriate; instead, “protection of parkland…be given paramount importance.”136 Protected properties may be used for transporta- tion projects only if the agency determines that “truly unusual factors” require the use or that “the cost or community disruption resulting from alternative routes reach[] extraordinary magni- tudes.”137 Put differently, the Court concluded that “the Secretary cannot approve the destruc- tion of parkland unless he finds that alternative routes present unique problems.”138 The Court in Overton Park did not address the requirement to engage in “all possible planning to minimize harm” in the event that there are no feasible and prudent alternatives to the use of protected resources. Lower court decisions have indicated that this requirement imposes an af- firmative obligation on the Secretary to minimize harm to protected properties before approving projects that use protected properties. That obli- 132 Id. § 774.15(a); see D.C. Fed’n of Civic Assns. v. Volpe, 459 F.2d 1231, 1239 (D.C. Cir.), cert. denied, 405 U.S. 1030 (1972). 133 Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982). 134 401 U.S. 402 (1971). 135 Id. at 411. 136 Id. at 411, 412–13. 137 Id. at 412-13. 138 Id. at 413. gation is satisfied when the Secretary conducts a “simple balancing process which…total[s] the harm to the [protected property] of each alterna- tive route and select[s] the route which does the least total harm.”139 FHWA’s implementing regulations for Section 4(f) reflect the Court’s decision in Overton Park and more recent legislation.140 FHWA regulations also prescribe a process for complying with Sec- tion 4(f) and include procedures for coordinating with officials with jurisdiction over protected properties, documentation sufficient to support the agency’s determinations, integrating the Sec- tion 4(f) process with NEPA and Section 106 of the National Historic Preservation Act, and pro- viding public notice and an opportunity for public review.141 In an effort to streamline the Section 4(f) evaluation process, FHWA has developed nation- wide programmatic evaluations to implement and comply with the requirements of Section 4(f). A programmatic evaluation identifies a category or categories of minor uses of Section 4(f) properties and includes a standardized evaluation of avoid- ance alternatives, based on the agency’s experi- ence with such uses in the past.142 They are thus similar to categorical exclusions under NEPA. Like categorical exclusions, the FHWA’s pro- grammatic evaluations eliminate the need for Sec- tion 4(f) evaluations on a case-by-case, individual project basis. Currently, FHWA has approved pro- grammatic evaluations for five categories of transportation projects.143 These programmatic evaluations may be relied on only if the specific conditions in the programmatic evaluations are satisfied and only if their application is docu- mented in the manner specified by the respective programmatic evaluation.144 2. The Endangered Species Act The Endangered Species Act (ESA) was en- acted ”to provide a means whereby the ecosystems upon which endangered species and threatened 139 Louisiana Environmental Soc’y v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976). 140 23 C.F.R. § 774.17. 141 See id. §§ 774.5, 774.7, 774.9. 142 Section 4(f) Policy Paper, supra note 124, avail- able at http://environment.fhwa.dot.gov/4f/4fpolicy. asp#addex30. 143 These programmatic evaluations may be viewed at the FHWA’s Section 4(f) Web page, available at http: //environment.fhwa.dot.gov/4f/4fnationwideevals.asp. 144 23 C.F.R. § 774.3(d).

17 species depend may be conserved” and “to provide a program for the conservation of such endan- gered species and threatened species.”145 The ESA further adopts a policy “that all Federal depart- ments and agencies shall seek to conserve endan- gered species and threatened species and shall utilize their authorities in furtherance of” the ESA’s objectives.146 The ESA is administered jointly by Fish & Wildlife and the Department of Commerce’s National Marine Fisheries Services, better known as NOAA-Fisheries. NOAA- Fisheries is responsible for marine species, while the Fish & Wildlife is responsible for all freshwa- ter organisms and terrestrial species. The agen- cies have issued joint regulations governing the implementation of critical portions of the ESA.147 The protections of the ESA are targeted at spe- cies that have been listed as endangered or threatened by the Fish & Wildlife pursuant to the listing procedures of Section 4 of the Act.148 Con- currently with the listing of a species, the ESA directs the Secretary of the Interior, “to the maximum extent prudent and determinable,” to designate the “critical habitat” of the species.149 The ESA contains two provisions that may be ap- plicable to transportation projects: the Section 7 consultation requirements and the Section 9 pro- hibition on “takings” of listed species. a. Section 7 Consultation.—Section 7 of the ESA requires each federal agency to insure that any action the agency authorizes, funds, or carries out will not likely jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such a species’ critical habitat. 150 To that end, the ac- tion agency is required to determine, using the best scientific and commercial data available, whether any listed species may be present in the area affected by the agency action, and to consult with Fish & Wildlife whenever the action is “likely to affect a listed species.”151 145 16 U.S.C. § 1531(b). 146 Id. § 1531(c)(1). 147 50 C.F.R. Parts 401–453. For convenience, refer- ences in the text to Fish & Wildlife shall mean Fish & Wildlife or NOAA-Fisheries, as appropriate, depending on the type of species involved. 148 See 16 U.S.C. § 1533. 149 Id. § 1533(a)(3)(A). 150 For a discussion of Section 7, see Sierra Club v. Corps of Engineers, 295 F.3d 1209, 1211-14 (11th Cir. 2002). 151 16 U.S.C §§ 1536(a)(2)-(3). The Section 7 process is initiated by a request from an agency to Fish & Wildlife for an opinion on whether a listed species may be present in the action area.152 If Fish & Wildlife advises the agency that no protected species are present, the consultation requirement ends. If, however, Fish & Wildlife responds that there may be an endan- gered or threatened species in the action area, the agency is required to prepare a biological assess- ment.153 The biological assessment identifies any listed species within the area and evaluates the potential effects of the action on those species. 154 If the biological assessment determines that there are no listed species or critical habitat af- fected by the action, or that the agency action will not jeopardize a listed species or adversely affect its critical habitat, and Fish & Wildlife concurs in that determination, the project may proceed.155 Alternatively, Fish & Wildlife and the agency may engage in informal consultation in which Fish & Wildlife may suggest modifications to the action that will avoid any likely adverse effects on listed species or their critical habitats.156 If the biological assessment concludes that the agency action may have an impact on a listed spe- cies, the agency must initiate "formal consulta- tion" with Fish & Wildlife.157 Formal consultation requires Fish & Wildlife to prepare a biological opinion, which determines whether the action and its cumulative effects may cause jeopardy to a listed species.158 If the biological opinion concludes that jeopardy may occur, the Fish & Wildlife may provide "reasonable and prudent alternatives" which the agency might take to avoid harming the species.159 A statement and authorization may also be included in the biological opinion permit- ting the “incidental taking” of a listed species, if the Fish & Wildlife determines that such a taking 152 This request is mandated by Section7(c)(1), 16 U.S.C. § 1536(c)(1). 153 According to the implementing regulations, a bio- logical assessment is also required for all federal actions which constitute a "major construction activity," whether or not a listed species is suspected in the area. 50 C.F.R. § 402.12(b)(1). 154 16 U.S.C. § 1536(c)(1); see also 50 C.F.R. § 402.02 (definition of biological assessment). 155 Id. § 402.12(k). 156 Id. § 402.13(b). 157 Id. § 402.14(a). There are a few exceptions to this requirement. See id. § 402.14(b). 158 16 U.S.C. § 1536(b)(3); 50 C.F.R. §§ 402.14(g)-(h). 159 16 U.S.C. § 1536(b)((3)(A).

18 will not cause jeopardy.160 Incidental takings are “takings that result from, but are not the purpose of, carrying out an otherwise lawful activity con- ducted by the Federal agency or applicant.”161 Among other things, the incidental take state- ment in a biological opinion may 1) specify the impact the incidental take will have on the af- fected species; 2) specify the reasonable and pru- dent measures deemed by Fish & Wildlife to be necessary or appropriate to minimize any such impact; and 3) set forth terms and conditions that must be complied with by the agency to imple- ment such reasonable and prudent measures.162 As the Ninth Circuit has explained, an inciden- tal take statement provides a “safe har- bor…immunizing persons from Section 9 liability and penalties for takings committed during activi- ties that are otherwise lawful and in compliance with its terms and conditions.”163 An action agency is “‘technically free to disregard the Bio- logical Opinion and proceed with its proposed ac- tion...[but] it does so at its own peril.’” 164 But if the agency chooses to disregard the terms and conditions included in an incidental take state- ment, and a taking does result, the action agency or the applicant may be exposed to significant civil and criminal penalties under Section 9.165 Thus, an agency may rely on a biological opinion by Fish & Wildlife, provided such reliance is not itself “arbitrary and capricious.”166 Fish & Wildlife has entered into a number of state-level programmatic agreements with FHWA that govern Section 7 compliance for a variety of routine transportation projects.167 These agree- ments typically identify standardized effects determinations using types of construction activi- ties and existing records of species and habitat 160 50 C.F.R. § 402.14(i)(1). 161 Id. § 402.02. 162 Id. §§ 402.14(i)(1)(i), (ii), and (iv). 163 Arizona Cattle Growers Ass’n v. U.S. Fish and Wildlife Service, 273 F.3d 1229, 1239 (9th Cir. 2001). 164 Id. (quoting Bennett v. Spear, 520 U.S. 154, 170 (1997)). 165 Id. 166 See, e.g., Florida Keys Citizens Coalition, Inc. v. U.S. Army Corps of Engineers, 374 F. Supp. 2d 1116, 1162 (S.D. Fl. 2005). 167 These programmatic agreements can be found in a library maintained by the American Association of State Highway and Transportation Officials. The li- brary is available at http://environment.transportation. org/pal_database/view_agreements.aspx?category_filter =4. conditions. The agreements also contain standard- ized conservation conditions that serve as reason- able and prudent alternatives for purposes of Sec- tion 7.168 b. The Takings Prohibition.—Section 9 of the ESA makes it unlawful “for any person…to…‘take any [endangered] species within the United States or the territorial sea of the United States.’” 169 A “taking,” for purposes of the ESA, “means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct.”170 By regulation, the term “harm” has been defined to “mean[] an act which actually kills or injures wildlife. Such act may in- clude significant habitat modification or degrada- tion where it actually kills or injures wildlife by significantly impairing essential behavioral pat- terns, including breeding, feeding, or shelter- ing.”171 The ESA defines the term “person” to include, among others, “any officer, employee, agent, department, or instrumentality of the Fed- eral Government, or of any State, municipality, or political subdivision of a State.”172 Accordingly, an agency action that significantly modifies the habitat of an endangered species may, in some circumstances, constitute a violation of the ESA. For that reason, a transportation pro- ject that causes, through habitat modification, an incidental take not authorized through the Sec- tion 7 consultation process may subject the project sponsor and the federal agency to liability under Section 9. 3. Section 106 of the National Historic Preservation Act The National Historic Preservation Act (NHPA) includes "a series of measures designed to encour- age preservation of sites and structures of his- toric, architectural, or cultural significance."173 It 168 For a specific example, see Programmatic Biologi- cal Assessment–Effects on the Indiana Bat Associated with Minor Road Construction Projects in Kentucky, available at http://transportation.ky.gov/Environmental -Analysis/Environmental Resources/2012 Program matic BA FINAL.pdf. 169 16 U.S.C. § 1538(a)(1)(B). 170 Id. § 1532(19). 171 50 C.F.R. § 17.3. This regulation was sustained against challenge in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995). 172 16 U.S.C. § 1532(13). 173 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 107 n.1 (1978).

19 creates a National Register of Historic Places (Na- tional Register) and procedures for placing sites and structures on the National Register.174 The NHPA also created the Advisory Council on His- toric Preservation (Advisory Council)175 and au- thorized it to promulgate rules governing the Sec- tion 106 compliance process.176 Of particular importance to transportation pro- jects, Section 106 of the NHPA requires federal agencies, “prior to the approval of the expenditure of any Federal funds on [an] undertaking or prior to the issuance of any license,” to "take into ac- count the effect of any undertaking on any dis- trict, site, building, structure, or object that is in- cluded in or eligible for inclusion in the National Register.”177 An “undertaking” is broadly defined to include a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including (A) those carried out by or on behalf of the agency; (B) those carried out with Federal financial assistance; (C) those requiring a Federal permit license, or approval; and (D) those subject to State or local regula- tion administered pursuant to a delegation or approval by a Federal agency.178 In brief, the Section 106 review process re- quires the undertaking agency to (1) identify the resources that are listed or eligible for listing on the National Register and that may be affected by the federal undertaking; (2) determine if any ef- fect could be adverse to such resources; and (3) if so, consult with the State Historic Preservation Officer (SHPO)179 or Tribal Historic Preservation Officer (THPO)180 and other appropriate parties to develop alternatives to mitigate any adverse ef- fects on the historic properties.181 174 16 U.S.C. § 470a. 175 Id. § 470i. 176 Id. § 470s. 177 Id. § 470f. 178 Id. § 470w(7). 179 An SHPO is the official appointed or designated to administer a state historic preservation program or a designee of the SHPO. 36 C.F.R. § 800.16(v) (2013). 180 A THPO is “the tribal official appointed by the tribe's chief governing authority or designated by a tribal ordinance or preservation program who has assumed the responsibilities of the SHPO for purposes of Section 106 compliance on tribal lands.” Id. § 800.16(w). For convenience, references in the text to the “SHPO” should be understood to include the THPO where appropriate. 181 See Tyler v. Cuomo, 236 F.3d 1124, 1128-29 (9th Cir. 2000) (citing 36 C.F.R. §§ 800.4(b) & (c), 800.5(e)). The Council’s rules specify that an agency un- dertaking must “use reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey.”182 To determine historic property eligibility for inclusion in the National Register, the agency must follow specific procedures, including consultation with the SHPO.183 An assessment of the effects of the ac- tion on protected resources is likewise to be made in consultation with the SHPO, and in considera- tion of public comments.184 Council regulations specify: An adverse effect is found when an undertaking may al- ter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association…. Ad- verse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.185 If the agency determines that an undertaking will have no adverse effect on protected resources, the agency may propose a finding of no adverse effect. The agency must then notify the SHPO and any other consulting parties, provide appropriate documentation supporting the finding to such par- ties, and allow for a 30-day review period.186 If the consulting parties agree or do not voice an objec- tion within the 30-day review period, the agency may proceed with the undertaking, and its re- sponsibilities under Section 106 are completed.187 If the SHPO disagrees with the agency’s proposed finding, the agency may consult further with the SHPO or request the Council to review the find- ing.188 If the Council reviews the finding, the agency may modify its proposed finding or adhere to its initial proposal, so long as the agency provides evidence that the Council’s opinion was considered.189 If the agency adheres to its finding of no adverse effect, the Section 106 process is complete. If the agency finds that the undertaking will have adverse effects on protected resources, the 182 36 C.F.R. § 800.4(b)(1) (2013). 183 Id. § 800.4(c)(1). 184 Id. § 800.5(a). 185 Id. § 800.5(a)(1). 186 Id. § 800.5(c). 187 Id. §§ 800.5(c)(1), (d)(1). 188 Id. § 800.5(c)(2). 189 Id. § 800.5(c)(3).

20 agency may request the Council to participate or further consult with the SHPO “to develop and evaluate alternatives or modifications to the un- dertaking that could avoid, minimize or mitigate adverse effects on historic properties.”190 The proc- ess to develop and evaluate such alternatives in- cludes notifying the Council and providing a pe- riod for public comment. If the agency and the SHPO agree on an appropriate alternative, or if the Council participates and likewise agrees, the parties may enter into a memorandum of agree- ment, which will govern how the undertaking is be to completed.191 The agency must, however, exercise independent judgment in its Section 106 determinations; NHPA requires that, “the deter- minations of effect, adverse effect, or no effect by the appropriate federal agency official be an inde- pendent one, and not simply a ‘rubber stamp’ of the state's work.”192 If the consulting parties cannot reach agree- ment, the Council must be given an opportunity to provide comments to the agency, which in turn must consider such comments in reaching a final decision.193 The Council’s regulations provide that the undertaking agency need not defer to the Council’s comments or, indeed, those of the SHPO: “Having complied with [Section 106’s] pro- cedural requirements the Federal agency may adopt a course of action it believes is appropriate. While the Advisory Council comments must be taken into account and integrated into the deci- sion-making process, program decisions rest with the agency implementing the undertaking.” 194 The courts have agreed that Advisory Council comments are “advisory only” and “do not and cannot control agency decisionmaking….”195 The agency’s responsibility is fulfilled when it can “demonstrate that it has read and considered” the recommendations of the SHPO and of the Coun- cil.196 Like NEPA, the Section 106 mandate to con- sider adverse effects and alternatives thus is essentially a procedural mandate; it does not re- 190 Id. § 800.6(a) 191 Id. §§ 800.6(b), (c). 192 Hayne Blvd Camps Preservation Assn. v. Julich, 143 F. Supp. 2d 628, 634 (ED La. 2001) (quoting Hall County Historical Society, Inc. v. Georgia Dep't of Transp., 447 F. Supp. 741, 751-52 (N.D. Ga. 1978)). 193 Id. § 800.7. 194 36 C.F.R. § 60.2(a). 195 Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 696 (3d Cir. 1999) 196 Id. quire the undertaking agency to accept the alter- native preferred by the SHPO/THPO or by the Council. Indeed, the D.C. Circuit has stated that, “[l]ike Section 102 of NEPA, Section 106 of the Historic Preservation Act is a ‘stop, look, and lis- ten’ provision; it requires federal agencies to take into account the effect of their actions on struc- tures eligible for inclusion in the National Regis- ter of Historic Places.”197 The agency’s final deci- sion is reviewed under the deferential “arbitrary and capricious” standard of review.198 As with the ESA, FHWA has entered into a number of state-level programmatic agreements governing the Section 106 process. These agree- ments vary from state-to-state, but often include provisions for surveys for particular historic re- sources, such as bridges, and standard treatments for projects that affect these resources.199 D. Structuring Environmental Review: Agency Coordination and Public Participation As discussed above, NEPA’s basic purpose is to foster the informed consideration of environ- mental impacts within agency decision processes. To that end, NEPA and CEQ regulations establish a broadly participatory process for developing an EIS and documenting compliance with other ap- plicable legal requirements. FHWA regulations treat NEPA as an “umbrella process” designed to facilitate compliance with a range of agency obli- gations under statutes like NEPA and the other resource protection statutes discussed in the pre- ceding section. Environmental assessment and project development may, and frequently do, in- volve a variety of stakeholders with widely vary- ing viewpoints and conflicting values. These stakeholders may include state and federal agen- cies, as well as organizations and individual mem- bers of the public that may have an in interest in the agency’s proposed action. Sorting out the ap- propriate roles and responsibilities of these vari- ous stakeholders and resolving conflicts among them can, at times, create confusion and unneces- 197 Illinois Commerce Comm’n v. ICC, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988). 198 Concerned Citizens Alliance, 176 F.3d at 702. 199 See, e.g., Programmatic Agreement Among the Federal Highway Administration, the Indiana Depart- ment of Transportation, the Indiana State Historic Preservation Officer, and the Advisory Council on His- toric Preservation Regarding Management and Preser- vation of Indiana’s Historic Bridges, available at www.in.gov/indot/files/HistoricBridgePA.pdf.

21 sary costs and delays in the environmental review process. In this section, we consider the legal re- quirements pertaining to the participation of stakeholders and the procedures that must be fol- lowed in the environmental review process. 1. Designation of Agency Roles in the Environmental Review Process The chief actor in the environmental review process is the “lead agency,” which CEQ regula- tions define as “the agency or agencies preparing or having taken primary responsibility for prepar- ing the environmental impact statement.”200 FHWA regulations describe the responsibilities of the lead agency more generally to include “man- aging the environmental review process and the preparation of the appropriate environmental re- view documents,” which may include any neces- sary documentation to support a categorical ex- clusion, a finding of no significant impact, Section 4(f) determinations, and findings under NHPA Section 106.201 For transportation projects subject to approval by FHWA, the lead agency must be FHWA.202 Moreover, any project sponsor that is a state or local government agency seeking FHWA funding for a transportation project must serve as a “joint lead agency…for the purpose of preparing any environmental document under [NEPA].”203 As a joint lead agency, a state or local sponsoring agency is authorized to, and typically will, pre- pare any documents to support FHWA action, so long as FHWA provides guidance and independ- ently evaluates and approves such documents.204 More recently, Congress has authorized the Secre- tary of Transportation to enter into programmatic agreements with the states that authorize the states to “determine on behalf of [FHWA]” whether a project may be processed as a categori- cal exclusion under NEPA.205 When an EIS is to be prepared, the lead agency is responsible for publishing a notice of intent in the Federal Register, which describes the proposed action and possible alternatives, as well as a pro- posed “scoping” process.206 The scoping process “consists of the range of actions, alternatives, and 200 40 C.F.R. § 1508.16. 201 23 C.F.R. § 771.109(c)(1). 202 See 23 U.S.C. § 139(a)(4); 23 C.F.R. § 771.107(g). 203 23 U.S.C. § 139(c)(3). 204 Id. 205 23 U.S.C. § 109 Note, P.L. 112-141, Title I, § 1318(d)(2), 126 Stat. 551(2012). 206 40 C.F.R. §§ 1501.7, 1508.22. impacts to be considered in the [EIS].”207 As part of this process, the lead agency is responsible for inviting affected federal, state, and local agencies, Indian tribes, and other interested persons to par- ticipate in the environmental review process.208 NEPA itself requires the lead agency to “consult and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact” the agency’s proposal may involve.209 Under CEQ regulations, these consulting agencies are termed “cooperating agencies.”210 They may include, for example, the U.S. Army Corps of Engineers (the Corps) (permit authority under the CWA), the U.S. Fish & Wildlife Service (responsible for im- plementing the ESA), the Advisory Council on Historic Preservation (implementing the NHPA), and a variety of state and local agencies.211 A spe- cial consulting role is assigned to the EPA, which, under the terms of Section 309 of the CAA, is required to “review and comment in writing on the environmental impact statement of any mat- ter relating to duties and responsibilities granted pursuant to [the Clean Air Act] or other provi- sions of the authority of [EPA], contained in any…newly authorized Federal projects for con- struction and any major Federal agency ac- tion…to which [NEPA’s EIS requirement] ap- plies….”212 The evident purpose of these consultation re- quirements is not only to ensure that agencies with expertise in environmental matters can con- tribute to the action agency’s understanding of the impacts of its actions, but also to reduce the de- lays and costs associated with an uncoordinated environmental review process. Broadly requiring the participation of agencies that may have statu- tory responsibilities that affect projects in the early stages of the EIS process may promote con- current and coordinated agency action to reduce duplicative efforts and delay, and may reduce points of conflict or concern among agencies. CEQ regulations have long encouraged the employment 207 Id. § 1508.25. 208 Id. § 1501.7(a)(1). 209 42 U.S.C. § 4332(2)(C). 210 40 C.F.R. § 1508.5. 211 See Center for Environmental Excellence by AASHTO, NEPA Process, http://environment. transportation.org/environmental_issues/nepa_process/ (describing cooperating agencies). 212 42 U.S.C. § 7609(a).

22 of inclusive approaches early in EIS develop- ment.213 More recently, Congress itself has stepped in to structure the environmental review process for transportation projects, emphasizing the need for greater efficiency and coordination among federal, state, and local agencies.214 To this end, Congress created an additional category of agencies— “participating agencies”—that may be invited by lead agencies to participate in the environmental review process.215 Lead agencies, participating agencies, and cooperating agencies have overlap- ping, but distinct roles in the environmental re- view process for transportation projects. In addition to the responsibilities described above, lead agencies for transportation projects are now responsible for establishing a “coordina- tion plan.”216 The plan governs public and agency participation in, and comment on, the environ- mental review process, and may include a sched- ule for completion of the process.217 Participating agencies involved in the envi- ronmental review process for transportation pro- jects may broadly include any federal or non- federal agencies “that may have an interest in the project.”218 They are charged with 1) carrying out their obligations under applicable law “concur- rently, and in conjunction, with the review re- quired under [NEPA]; and 2) taking the necessary policy and procedural steps “to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.”219 Lead agencies are now required to involve participating agencies in defining the pur- pose of and need for a project, determining the range of alternatives to be considered in the EIS, and selecting the “methodologies to be used and level of detail required in the analysis of each al- ternative for a project.”220 The lead agency none- 213 Id. §§ 1500.5(b), (d), (g), and (h). 214 The important pieces of legislation that have re- structured the process of environmental review are Sec- tion 6002 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), and various provisions in the Moving Ahead for Progress in the 21st Century Act (MAP-21). Many of these newer requirements are codified in Sec- tion 139 of Title 23 of the United States Code. 215 23 U.S.C. § 139(d). 216 23 U.S.C. § 139(g)(1)(A). 217 23 U.S.C. § 139(g)(1)(B). 218 23 U.S.C. § 139(d)(2). 219 23 U.S.C. §§ 139(d)(7)(A), (B). 220 23 U.S.C. §§ 139(f)(1), (f)(4)(A), (f)(4)(C). theless remains responsible for making final deci- sions on these matters.221 Participating agencies are charged with the duty to work cooperatively with lead agencies to identify and resolve issues that might delay the environmental review proc- ess. 222 Cooperating agencies have greater responsibili- ties and more involvement in the environmental review process than do participating agencies. Like participating agencies, they are required to participate in the NEPA process at the earliest practicable time, and must be involved in the scoping process.223 A distinguishing characteristic of cooperating agencies is that they are permitted, at the request of the lead agency, to assume re- sponsibility for preparing portions of the EIS or gathering information and providing analysis to support those portions of the EIS over which the agency has special expertise.224 Perhaps most im- portantly, under CEQ’s regulations, “[a] cooperat- ing agency may adopt without recirculating the [EIS] of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.”225 This can significantly reduce duplication of effort, particularly when a cooperat- ing agency must itself prepare an EIS for any ac- tion it takes in connection with the project, for example, the Corps’ regulatory decision to issue a permit under Section 404 of the CWA.226 The most recent transportation legislation, MAP-21, includes provisions to ensure effective and responsible participation by participating agencies and cooperating agencies. These provi- sions include new dispute resolution procedures and financial penalties for agencies that fail to meet important deadlines and responsibilities.227 221 23 U.S.C. §§ 139(f)(2), (f)(4)(B), (f)(4)(C). 222 23 U.S.C. § 139(h)(3). 223 40 C.F.R. §§ 1501.6(b)(1)-(2). 224 40 C.F.R. § 1501.6(b)(3). 225 40 C.F.R. § 1506.3(c). 226 See Safe, Accountable, Flexible, Efficient Trans- portation Equity Act: A Legacy for Users (SAFETEA- LU) Section 6002 Environmental Review Process Final Guidance, http://www.fhwa.dot.gov/hep/section6002/ index.htm, at Question 30 [hereinafter “Environmental Review Process Final Guidance”]. For an example, see Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209 (11th Cir. 2002). 227 See 23 U.S.C. §§ 139(h).

23 2. Public Participation in the Environmental Review Process By its terms, NEPA does not expressly address the extent to which interested members of the public may or must be involved in the environ- mental review process. It does provide that com- ments obtained from cooperating agencies must be made available “to the President, the [CEQ] and to the public” and must “accompany the pro- posal through the existing agency review proc- esses.”228 The CEQ, however, has concluded that to serve the basic purposes of NEPA, the envi- ronmental review process “must ensure that envi- ronmental information is available to public offi- cials and citizens before decisions are made and before actions are taken.”229 To this end, CEQ regulations declare that, “to the fullest extent possible,” federal agencies shall “[e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment.”230 The regulations specifically require agencies to give notice to the public of NEPA-related hear- ings, public meetings, and the availability of envi- ronmental documents.231 CEQ guidance concludes that this requirement applies to EAs.232 In accor- dance with this conclusion, FHWA regulations provide that EAs must be made available to the public and, when the agency expects to issue a FONSI, provide for public review for at least 30 days before a final decision is made.233 Neither CEQ nor FHWA regulations specifically address public notice or participation in agency decisions to invoke a categorical exclusion for particular projects, though FHWA’s strongly suggest that opportunities for public involvement be pro- vided.234 When an agency determines that an EIS is to be prepared, CEQ regulations require that a no- tice of intent to prepare an EIS be published in the Federal Register at the earliest practicable time.235 As noted above, for transportation pro- jects, Congress has required the lead agency to 228 42 U.S.C. § 4332(2)(C). 229 40 C.F.R. § 1500.1(b). 230 40 C.F.R. § 1500.2(d). 231 40 C.F.R. § 1506.6(b). 232 Council on Environmental Quality, Memorandum to Agencies: 40 Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18037 (March 23, 1981). 233 23 C.F.R. § 771.119(h). 234 See 23 C.F.R. § 771.111(h)(2)(ii). 235 40 C.F.R. § 1501.7 establish a plan to coordinate public and agency participation in the environmental review proc- ess.236 In addition, the lead agency must provide opportunities for public involvement in determin- ing the purpose and need of the project, as well as the range of alternatives to be considered.237 For the federal-aid highway program, FHWA regula- tions require each state to have a “public in- volvement/public hearing program” that includes such opportunities for public involvement.238 More generally, the required state program must pro- vide for “[c]oordination of public activities and public hearings with the entire NEPA process.”239 CEQ regulations also require that, with the ex- ception of proposals for legislation, an EIS be pre- pared in two stages consisting of a draft and final EIS.240 Agencies are directed to obtain comments on the draft, and must “request comments from the public, affirmatively soliciting comments from those persons or organizations who may be inter- ested or affected.”241 The regulations also author- ize, but do not require, agencies to request com- ments on the final EIS before a final decision is made.242 The agencies are also required to con- sider comments on a draft EIS, and to respond to them in the final EIS.243 FHWA regulations are to like effect,244 but provide for a 30-day public re- view of a final EIS before a final decision is made and a record of decision (ROD) is issued.245 CEQ regulations require agencies to hold pub- lic hearings “whenever appropriate or in accor- dance with statutory requirements.”246 Most courts have held that an agency is not required to hold a public hearing, even when such a hearing might be beneficial; the decision lies within the agency’s discretion.247 For some FHWA projects, 236 23 U.S.C. § 139(g)(1)(A). 237 23 U.S.C. §§ 139(f)(1) & (f)(4)(A). 238 23 C.F.R. § 771.111(h)(2)(vii). 239 23 C.F.R. § 771.111(h)(2)(i). 240 40 C.F.R. § 1502.9. 241 40 C.F.R. § 1503.1(a)(4). 242 40 C.F.R. § 1503.1(b). 243 40 C.F.R. § 1503.4(a). 244 See 23 C.F.R. §§ 771.123, 771.125 (draft and final EIS). 245 23 C.F.R. §§ 771.125(g), 771.127(a). 246 40 C.F.R. § 1506.6(c). 247 See, e.g., Friends of Ompompanoosuc v. FERC, 968 F.2d 1549, 1557 (2d Cir. 1992).

24 public hearings are required by statute248 or by the agency’s implementing regulations.249 E. Emergency Provisions Applicable to Environmental Review of Transportation Projects There are a number of emergency provisions that may be applied in reviewing transportation projects for compliance with environmental re- quirements. In general, these provisions fall into two categories: 1) exemptions; and 2) provision for alternative arrangements. An exemption renders particular planning or regulatory requirements inapplicable to a project. By contrast, provisions for alternative arrangements modify, but do not eliminate, particular planning and regulatory measures to further overriding public policy objec- tives of protecting the public health, safety, and welfare in the face of emergencies. 1. NEPA Exemptions a. FEMA Disaster and Emergency Assistance.— FEMA, acting under the Robert T. Stafford Disas- ter Relief and Emergency Assistance Act (the Stafford Act) often plays a central role in assisting communities affected by major disasters and emergencies.250 The authorities under the Stafford Act may be invoked by FEMA only when the president has issued a declaration of a major dis- aster or emergency.251 Assistance under the Staf- ford Act can cover a range of response and recov- ery actions. Section 403, for example, authorizes federal agencies, at the direction of the president, to provide essential assistance in the event of a major disaster, including: • debris removal; • road clearance and construction of temporary bridges if necessary to provide essential services or perform emergency tasks; • demolition of unsafe structures; and • actions to reduce immediate threats to life, property, or public health and safety.252 Section 406 similarly authorizes the president to make contributions to the cost of repairing, re- storing, reconstructing, or replacing any “public 248 See 23 U.S.C. § 128. 249 23 C.F.R. § 771.111(h). 250 The Stafford Act includes definitions of an “emer- gency” and a “major disaster.” See 42 U.S.C. §§ 5122(1)- (2). 251 See 42 U.S.C. §§ 5170(a), 5191. 252 Id. § 5170b(a)(3). facility.”253 A public facility is defined to include “[a]ny non-Federal-aid street, road, or high- way.”254 Section 316 of the Stafford Act Section 316 of the Stafford Act exempts disas- ter actions from NEPA’s environmental assess- ment process. That section provides that “[a]ny action which is taken or assistance which is pro- vided pursuant to section 402, 403, 406, 407, or 502, including such assistance provided pursuant to the procedures provided for in section 422, which has the effect of restoring a facility sub- stantially to its condition prior to the disaster or emergency, shall not be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of [NEPA].”255 In Hayne Blvd. Camps Preservation Ass'n, Inc. v. Julich, plaintiffs challenged a FEMA decision to provide funds to the Orleans Levee District to remove the piers and pilings in Lake Ponchar- train that supported camps destroyed by Hurri- cane Georges in 1998.256 The plaintiffs claimed that FEMA had violated NEPA by failing to evaluate the environmental impact of its action. They argued that Section 316’s exemption did not apply because the action funded by FEMA did not restore a facility to its pre-disaster condition. The court rejected this argument, noting that FEMA regulations provide that various actions under- taken pursuant to the Stafford Act, including de- bris removal, are exempt from NEPA without re- gard to whether those actions restore a facility to its pre-disaster condition.257 The court noted that when a court reviews an agency’s interpretation of a statute the agency administers, “a court need not find that it is the only permissible construc- tion that the agency might have adopted but only that the agency's understanding of this statute is sufficiently rational.”258 The court concluded that FEMA’s regulation met this deferential stan- dard.259 It should be emphasized, however, that Section 316 does not by its terms exempt actions 253 Id. § 5172(a)(1)(A). 254 Id. § 5122(10)(B). 255 Id. § 5159. 256 143 F. Supp. 2d 628, 635 (E.D. La. 2001). 257 FEMA’s regulation can be found at 44 C.F.R. § 10.8(c)(1). 258 Id. at 635 (citing Chemical Mfrs. Ass’n v. Natural Res. Def. Council, 470 U.S. 116, 125 (1985)). 259 Id.

25 from the requirements of environmental laws other than NEPA. Indeed, in Hayne Blvd. Camps Preservation Ass'n, the court held that FEMA was obligated to comply with the requirements of Sec- tion 106 of the National Historic Preservation Act and the Endangered Species Act.260 FEMA Categorical Exclusions In addition to the exemption from NEPA pro- vided by Section 316 of the Stafford Act, FEMA has promulgated regulations creating a number of categorical exclusions. While there may be consid- erable overlap among these categorical exclusions and the exemptions in Section 316, it is useful to provide the following short list of some of these categorical exclusions: • Demolition of structures and other improve- ments or disposal of uncontaminated structures and other improvements to permitted offsite loca- tions, or both; • Repair, reconstruction, restoration, elevation, retrofitting, upgrading to current codes and stan- dards, or replacement of any facility in a manner that substantially conforms to the preexisting de- sign, function, and location; and • Improvements to existing facilities and the con- struction of small scale hazard mitigation meas- ures in existing developed areas with substan- tially completed infrastructure, when the immediate project area has already been dis- turbed, and when those actions do not alter basic functions, do not exceed capacity of other system components, or modify intended land use; pro- vided the operation of the completed project will not, of itself, have an adverse effect on the quality of the human environment.261 FEMA’s regulations conform to CEQ regula- tions by requiring the preparation of an environ- mental assessment for actions normally subject to a categorical exclusion if “extraordinary circum- stances” are present. The regulations identify a number of specific circumstances that will be deemed extraordinary.262 Like the Stafford Act Section 316 exemptions, FEMA’s categorical ex- clusions do not exempt the action from, or alter the requirements of, other applicable environ- mental laws. 260 Id. at 634. 261 44 C.F.R. §§ 10.8(d)(2)(xii),(xv) & (xvi). 262 Id. § 10.8(d)(3). b. FHWA Emergency Provisions.—In Section 1315(a) of MAP-21, Congress directed the Secre- tary of Transportation to conduct a rulemaking to establish a categorical exclusion from NEPA “for the repair or reconstruction of any road, highway, or bridge that is in operation or under construc- tion when damaged by an emergency declared by the Governor of the State and concurred in by the Secretary, or for a disaster or emergency declared by the President” under the Stafford Act.263 The statute restricts repair and reconstruction pro- jects eligible for the categorical exclusion to those that are 1) “in the same location with the same capacity, dimensions, and design as the original road, highway, or bridge”; and 2) commenced within 2 years of the emergency or disaster decla- ration.264 FHWA published a final rule in conformance with Section 1315(a) on February 19, 2013.265 The final rule is codified as a new c-list categorical exclusion at 23 C.F.R. § 771.118(c)(9). Based on its own experience and the suggestion of comment- ers, FHWA’s emergency rule is somewhat broader than that suggested by Section 1315(a). In addi- tion to roads, highways, and bridges, the rule ap- plies to the repair, reconstruction, retrofitting, or replacement of tunnels and transit facilities and ancillary transportation facilities, such as pedes- trian/bicycle paths and bike lanes.266 The rule also extends the categorical exclusion to include up- grades to meet existing codes and standards as well as those upgrades needed to address changed conditions, so long as the repair, restoration, or replacement occurs within the existing right-of- way and conforms substantially to the design, function, and location of the original facility.267 In one respect, however, the emergency cate- gorical exclusion is narrower in scope than what the language of Section 1315(a) authorizes. Sec- tion 1315(a) authorizes a categorical exclusion for “an emergency declared by the Governor of the State and concurred in by the Secretary.” The statutory term “emergency” is not defined and could reasonably be interpreted to include catas- trophic facility failures, regardless of the cause of those failures. Such a failure might include, for example, a bridge or tunnel collapse caused by an existing condition or progressive deterioration in structural elements. A failure of this sort may 263 Pub. L. No. 12-141, § 1315(a), 126 Stat. 549. 264 Id. § 1315(a)(1)-(2). 265 78 Fed. Reg. 11593 (Feb. 19, 2013). 266 23 C.F.R. § 771.117(c)(9)(ii). 267 Id. § 771.117(c)(9)(ii)(A).

26 have profound impacts on public safety and trans- portation needs, but may not rise to the level of an emergency warranting a presidential declaration under the Stafford Act. FHWA, however, decided to limit the scope of the rule to emergencies (other than Stafford Act emergencies and major disas- ters), that fall within the scope of the emergency relief program established by 23 U.S.C. § 125. That program applies only to emergencies caused by “a natural disaster over a wide area” or a “catastrophic failure from any external cause.”268 It does not apply to catastrophic failures that are “primarily the result of existing conditions” or “primarily attributable to gradual and progressive deterioration or lack of proper maintenance.”269 FHWA explained that this limitation would “en- sure consistency” and “avoid the need to create a separate and independent process for the Secre- tary’s concurrence with a Governor’s emergency declaration for catastrophic failures that do not qualify for the emergency relief programs.”270 FHWA’s emergency rule, like FEMA’s categori- cal exclusions, differs from the exclusion provided in Section 316 of the Stafford Act in one important respect. Because it is a categorical exclusion, it is limited by the possibility that “unusual circum- stances” may render it inapplicable.271 As noted above, unusual circumstances may include sig- nificant environmental impacts, substantial con- troversy on environmental grounds, significant impacts on Section 4(f) properties or properties protected by Section 106 of the National Historic Preservation Act, or inconsistencies with local, state, or federal environmental law.272 Like the exclusion under Section 316 of the Stafford Act, however, the emergency rule applies only to NEPA obligations; it does not exempt the project from the requirements of other applicable envi- ronmental laws. c. CEQ’s Emergency Rule.—CEQ regulations implementing NEPA include an emergency provi- sion. It provides: Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the [CEQ] will limit such arrangements to actions neces- 268 23 U.S.C. § 125(a)(1)-(2). 269 23 C.F.R. § 668.103. 270 78 Fed. Reg. at 11596. 271 23 C.F.R. § 771.117(b). 272 Id. § 771.117(b)(1)-(4). sary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.273 According to one commentator, as of 2010, the CEQ had granted alternative compliance ar- rangements under this emergency rule on 41 oc- casions.274 Importantly, the emergency rule only applies in those circumstances in which an EIS would otherwise be required; for actions that are subject to categorical exclusions or that do not have significant environmental impacts, other provisions may be applicable. CEQ issued revised guidance on the rule in re- sponse to the BP oil spill in the Gulf of Mexico.275 The guidance emphasizes that “alternative ar- rangements are limited to ‘the actions necessary to control the immediate impacts of the emer- gency” and that such arrangements establish an alternative way to comply to NEPA, not a waiver of the NEPA’s basic requirements.276 The ar- rangements are to be made in consultation with CEQ, which will provide documentation support- ing the alternative arrangements. The require- ment to consult with CEQ may be delayed, how- ever, when immediate actions “to secure the lives and safety of citizens or to protect valuable re- sources” are necessary.277 Neither the rule nor CEQ’s guidance defines what constitutes an “emergency.” Nor has the scope of the emergency rule been definitively ad- dressed by the courts. In Natural Resources De- fense Council v. Winter,278 the district court re- jected a CEQ determination that the rule could be applied to support alternative NEPA arrange- ments for “the Navy's need to continue its long- planned, routine sonar training exercises unmiti- gated by” the requirements of a previous judicial order.279 Instead, the court held that the emer- gency rule only encompasses “significant, unan- ticipated occurrences, such as natural disas- ters.”280 Because the Navy’s purported emergency 273 40 C.F.R. § 1506.11. 274 See Jomar Maldonado, Navigating the Emergency Provisions of Federal Environmental Planning Re- quirements, 12 ENVIRONMENTAL PRACTICE 237, 238 (2010). 275 Memorandum for the Heads of Federal Depart- ments and Agencies from Nancy H. Sutley, Chair, Council on Environmental Quality (May 12, 2010). 276 Id. at 2. 277 Id. at Attachment 1, at 1. 278 527 F. Supp. 2d 1216 (C.D. Cal. 2008), aff’d 581 F.3d 658 (9th Cir. 2008). 279 Id. at 1227. 280 Id.

27 was “simply a creature of its own making, i.e., its failure to prepare adequate environmental docu- mentation in a timely fashion,” the emergency rule was deemed inapplicable.281 This decision was, however, reversed by the Supreme Court on unrelated grounds, making its precedential effect somewhat tenuous. In other decisions, the courts have sustained alternative arrangements under the emergency rule for flights of military aircraft contrary to the terms of an operative EIS, because the modified flight schedule was deemed essential to supply military equipment and troops for ongoing mili- tary operations;282 and in circumstances where agency action was needed to avoid an imminent crisis beyond the agencies’ control. 283 2. Exemptions Applicable to Specific Environmental Statutes a. The Clean Air Act.—EPA has promulgated a regulation that exempts a number of emergency- related transportation projects from the confor- mity requirements of Section 176 of the Clean Air Act. The exemption allows certain transportation projects to proceed even in circumstances where there is no conforming transportation plan or transportation improvement program.284 The ex- emption does not apply to projects if the relevant metropolitan planning organization (MPO) in con- sultation with other agencies, EPA and FHWA, concur that the project may have adverse emis- sion impacts, regardless of the reason for such impacts. Projects that are exempt from conformity determination must not interfere with transporta- tion control measures adopted by the states and included in the relevant state implementation plan.285 In addition, as noted earlier, the Clean Air Act does include a grant of emergency powers to EPA.286 The most likely intent of this authority is to provide EPA with authority to respond to “evi- dence that a pollution source or combination of sources…is presenting an imminent and substan- 281 Id. 282 Valley Citizens for a Safe Environment v. West, Civ. A. No. 91-300077-F, 1991 WL 330963 (D. Mass. May 30, 1991). 283 See Crosby v. Young, 512 F. Supp. 1363 (E.D. Mich. 1981); National Audubon Soc’y v. Hester, 801 FR. l2d 405, 408 n.3 (D.C. Cir. 1986). 284 40 C.F.R. § 93.126. The exemptions can be found in Table 2-Exempt Projects. 285 Id. § 93.126. 286 42 U.S.C. § 7603. tial endangerment to health or welfare, or the en- vironment” by issuing abatement orders, not to waive regulatory requirements in an emergency context.287 Nonetheless, the text of the provision authorizes EPA to “issue such orders as may be necessary to protect public health or welfare or the environment,” which might support a waiver of regulatory requirements that might otherwise impede or delay emergency response actions.288 EPA has express statutory authority to waive a variety of regulatory requirements in emergencies or where national security interests require such waivers.289 Most of these waiver authorities will not directly impact transportation projects, but could assist in related recovery/reconstruction ef- forts. The authorities include: • 42 U.S.C. § 7410(f)—permits suspension of state implementation plan requirements for particular fuel burning stationary sources if the President determines that “national or regional energy emergency exists” • 42 U.S.C. § 7412(i)(4)—exemptions available for compliance with control requirements for air toxics if the technology to implement the require- ments is unavailable and “that it is in the na- tional security interests of the United States” to provide the exemption. • 42 U.S.C. § 7545(c)(4)(C)—temporary waiver of fuel or additive requirements if EPA determines that “extreme and unusual fuel and fuel additive supply circumstances are the result of a natural disaster, an act of God, a pipeline or refinery equipment failure, or another event that could not reasonably have been foreseen or prevented and not the lack of prudent planning on the part of suppliers of the fuel or fuel additive….” • 42 U.S.C. § 7418(b)—authorizes exemptions from regulatory requirements for “any emission source of any department, agency, or instrumen- tality in the executive branch if [the president] determines it to be in the paramount interest of the United States.” EPA also waives some regulatory requirements governing the demolition of asbestos-containing materials when “the facility is being demolished under an order of a State or local government 287 Id. 288 Id. 289 For an overview, see Michael B. Gerard, Emer- gency Exemptions from Environmental Laws After Dis- asters, 20 NAT. RESOURCES & ENV’T. 10 (Spring 2006), at 13.

28 agency” if “the facility is structurally unsound and in danger of imminent collapse.”290 b. The Clean Water Act.—The Clean Water Act (CWA) and EPA’s implementing regulations in- clude a number of exemptions from regulatory requirements. For example, the CWA authorizes the president to take action to ensure “immediate and effective removal” of discharges of hazardous substances from onshore facilities when necessary to protect public health or welfare or the envi- ronment.291 EPA invoked this provision in the wake of Hurricane Katrina to authorize the pumping of highly contaminated floodwaters from the city of New Orleans into Lake Pontchar- train.292 In the absence of such authorization, the pumping would violate Section 301 of the CWA. EPA regulations include some exceptions to compliance with otherwise applicable regulatory requirements under the Section 402 permitting program in emergency situations. For example, EPA’s standard permit authorizes discharges of pollutants in excess of permit limitations in the event of an “upset.” An upset is defined as an “ex- ceptional incident in which there is an uninten- tional and temporary noncompliance…because of factors beyond the reasonable control of the per- mittee.”293 In addition, discharges in compliance with orders issued by appropriate authority under the National Contingency Plan—such as dewater- ing operations—may be exempt from the Section 402 permitting program.294 EPA’s general permit for stormwater dis- charges associated with construction activities provides for immediate authorization for dis- charges without the filing of a notice of intent if the earth-disturbing activities are in response to a “public emergency (e.g., natural disaster, wide- spread disruption in essential public services), and the related work requires immediate authori- zation to avoid imminent endangerment to human health, public safety, or the environment, or to reestablish essential public services.”295 The au- thorization requires that a complete and accurate notice of intent be submitted within 30 days of commencing earth-disturbing activities. 290 40 C.F.R. § 61.145(a)(3). 291 33 U.S.C. § 1321(c). 292 See Gerard, supra note 289, at 12. 293 40 C.F.R. § 122.41(n)(1). 294 Id. § 122.3(d). 295 National Pollutant Discharge Elimination System General Permit for Discharges from Construction Activ- ity, § 1.2.1, available at http://www.epa.gov/npdes/pubs/ cgp2012_finalpermit.pdf. Section 404 exempts from its permit require- ment discharges of dredged or fill material “for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of cur- rently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and trans- portation structures.”296 Corps’ regulations pro- vide that “maintenance” does not include “any modification that changes the character, scope, or size of the original fill design.”297 The exemption is available only for "[e]mergency reconstruc- tion…within a reasonable period of time after damage occurs.”298 The maintenance must be for “currently serviceable structures,” which one court has held to mean structures that are cur- rently “performing [their] function to some de- gree” and “do[] not require reconstruction.”299 The exemption is unavailable, however, if it involves a discharge “incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters be reduced.”300 The Corps’ general regulations also authorize the issuance of emergency permits, which include permits required by Section 404 of the CWA.301 These “temporary emergency” permits for dis- charges of dredged or fill material may be issued “if unacceptable harm to life or severe loss of physical property is likely to occur before a permit could be issued or modified under procedures normally required.” The permit’s duration is lim- ited to the time required to complete the emer- gency action and includes a condition requiring “appropriate restoration of the site.”302 c. The Resource Conservation and Recovery Act.—RCRA and EPA regulations implementing RCRA include several provisions that may be use- ful in the emergency context, particularly where an agency must handle and dispose of hazardous wastes that pose threats to public health or safety. Under RCRA, persons engaged in the treatment, storage or disposal of hazardous wastes generally are required to obtain permits 296 33 C.F.R.§ 1344(f)(1)(B). 297 33 C.F.R. § 323.4(a)(2). 298 Id. 299 Swinomish Indian Tribal Community v. Skagit County Dike Dist. No. 22, 618 F. Supp. 2d 1262, 1268 (W.D. Wash. 2008). 300 33 C.F.R. at 1344(f)(2). 30133 C.F.R. § 233.22. 302 Id.

29 from EPA or an authorized state authority, and to meet stringent requirements. RCRA, however, authorizes the president to “exempt any solid waste management facility of any department, agency, or instrumentality in the executive branch from [otherwise applicable regulatory re- quirements] if he determines it to be in the para- mount interest of the United States to do so.”303 In addition, EPA may issue temporary emer- gency permits under RCRA when there is an “im- minent and substantial endangerment to human health or the environment.” The temporary per- mit may require some protective measures, but need not include the strict requirements ordinar- ily applicable to treatment, storage, or disposal facilities.304 Emergency permits may be issued to a “non-permitted facility to allow treatment, stor- age, or disposal of hazardous waste,” or to a “per- mitted facility to allow treatment, storage, or dis- posal of a hazardous waste not covered by an effective permit.”305 EPA regulations also provide an exclusion from regulations applicable to treat- ment, storage or disposal facilities for “a person engaged in treatment or containment activities during immediate response to…[a] discharge of hazardous waste; [a]n imminent and substantial threat of a discharge of hazardous waste; [a] dis- charge of a material which, when discharged, be- comes a hazardous waste;” or “[a]n immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist.”306 The exemption lasts only for the du- ration of the “immediate response.”307 d. Endangered Species Act.—Section 7(p) of the ESA authorizes the president to grant exemptions from the requirement under Section 7(a)(2) that agencies insure that their actions do not jeopard- ize listed species or adversely affect the species’ critical habitats. The exemption is limited to ar- eas that have been declared to be major disaster areas under the Stafford Act.308 The scope of the exemption may include “any project for the repair or replacement of a public facility substantially as it existed prior to the disaster…and which the President determines (1) is necessary to prevent 303 42 U.S.C. § 6961(a). 304 40 C.F.R. § 270.61(a) (2013). 305 Id. 306 40 C.F.R. 264.1(g)(8)(i). 307 Id. § 264.1(g)(8)(iii). 308 16 U.S.C. § 1536(p). the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures.”309 This limited exemption authority proved useful in the wake of Hurricane Katrina when the Department of the Interior and FEMA established a “practical proto- col that exempted the repair or replacement of facilities under FEMA’s Public Assistance Pro- gram from section 7 consultation.”310 A more broadly applicable emergency provision is included in Fish & Wildlife/NOAA-Fisheries joint regulations implementing Section 7 of the ESA. That provision states: (a) Where emergency circumstances mandate the need to consult in an expedited manner, consultation may be con- ducted informally through alternative procedures that the Director determines to be consistent with the re- quirements of sections 7(a)–(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc. (b) Formal consultation shall be initiated as soon as prac- ticable after the emergency is under control. The Federal agency shall submit information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threat- ened species and their habitats. The Service will evaluate such information and issue a biological opinion including the information and recommendations given during the emergency consultation.311 Like CEQ’s emergency regulation for NEPA, the emergency consultation procedure is not an exemption from the requirements of the ESA, but rather provides an alternative means of compli- ance. The Fish and Wildlife Consultation Manual indicates that most emergency consultations are conducted informally and initially by means of a telephone communications, followed by written correspondence. The role of Fish & Wildlife in this process is to offer recommendations that minimize the effects of an emergency response on listed spe- cies or their critical habitats.312 The handbook ad- vises service personnel to not “stand in the way of response efforts.”313 Moreover, the handbook pro- vides that, “[u]nder no circumstances should a Services representative obstruct an emergency 309 Id. 310 Maldonado, supra note 274, at 239. 311 50 C.F.R. § 402.05. 312 U.S. Fish and Wildlife Service and National Ma- rine Fisheries Service, Endangered Species Consulta- tion Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the En- dangered Species Act, at 8-1 (1998). 313 Id.