New CEQ Guidance on NEPA & Mitigation

The CEQ has issued new guidance to agencies regarding the use of mitigation.  An environmental impact statement is required when a project has a significant environmental impact. Agencies frequently avoid the need for a full-scale environmental impact statement with plans to mitigate the impacts below the threshold of significance.  NEPA aficionados call this a “mitigated FONSI,” with FONSI standing for “Finding of No Significant Impact.”  But the mitigation plans aren’t always executed.  Worse, even when they are executed, we don’t know if they’ve actually worked: the agency may not monitor at all, or even if there is monitoring, the results may not be available to the public.

The NEPA guidance directs agencies to:

* commit to mitigation in decision documents when they have based environmental analysis upon such mitigation (by including appropriate conditions on grants, permits, or other agency approvals, and making funding or approvals for implementing the proposed action contingent on implementation of the mitigation commitments);

* monitor the implementation and effectiveness of mitigation commitments;

* make information on mitigation monitoring available to the public, preferably through agency web sites; and

* remedy ineffective mitigation when the Federal action is not yet complete.

I’m especially pleased to see the suggestion of making monitoring information available on-line.  All information relating to NEPA compliance should be available on the Internet to researchers and interested members of the public.



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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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