National Environmental Policy Act (NEPA) Education and Certificate Program
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The following is a collection of approved, exceptional capstone papers submitted by students to the Duke Environmental Leadership Program. This collection should serve as a guide for formatting and how to compose your paper. The capstone paper is an original, research-based culminating exercise related to NEPA theory or practice. The paper should be based on what you have learned in the courses and your current or future work in the field; case study examples are encouraged. The rationale of the capstone paper is twofold: to demonstrate knowledge of the subject, and to make a contribution to the field. Exemplary papers may be incorporated into future course offerings and compiled for distribution, with authors' permission. Papers are reviewed by a panel of experts in NEPA. Topics must be approved in advance.
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Item Open Access Defining Appropriate Spatial and Temporal Scales for Ecological Impact Analysis(2014) Nash, HarrietItem Open Access Facilitation of Stakeholder Input in the National Environmental Policy Act Process(2015-04-01) Trefethen, Jean A.Use of effective communication techniques can greatly facilitate the process of receiving stakeholder input. Section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA) offers a chance for members of the public to be involved in the Federal agency decision making process. It requires a federal agency to consider the impacts of their undertaking on many resources areas to include social, cultural, economic and natural environments. Regulation for implementing NEPA Section 102(2) is provided in the Council on Environmental Quality’s (CEQ’s) regulations in the Code of Federal Regulations (CFR), Title 40, Part 1500 (40 CFR 1500). CEQ’s regulation at 40 CFR 1500.2(d) requires federal agencies to encourage and facilitate public involvement in decisions which affect the quality of the human environment. In addition to being mandated by federal regulation, these interactions can be beneficial to the preparing agency during the gathering and assessing information phase of the federal action. This paper looks at: the role and importance of stakeholder interactions and input, the potential benefits of information exchanges, and various techniques to enhance communication among the participating stakeholders. To illustrate these points, real world examples are presented. Additionally, how current and future environmental reviews can benefit from using these techniques, throughout the NEPA process.Item Open Access The Role and Use of Programmatic Environmental Impact Statements And Environmental Assessments in Fulfilling NEPA and State Environmental Mandates(2015-04-01) Park, James R.The Council on Environmental Quality’s (CEQ’s) regulations in the Code of Federal Regulations (CFR), Title 40, Part 1500 (40 CFR 1500) implement Section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA). In doing so, the CEQ’s regulations tell federal agencies what they must do to comply with the procedures and achieve the goals of NEPA. The CEQ’s regulations at 40 CFR 1502.4(b) and (c) allow federal agencies to prepare environmental impact statements (EISs) on “broad actions” in which federal proposals can be evaluated geographically, generically, or by stage of technological development. Federal agencies have prepared broad action EISs and programmatic Environmental Assessments (EAs), when appropriate, to help in complying with NEPA. For their part, State agencies also have prepared these types of broad action documents to meet the relevant environmental regulations of the State. The purpose of this capstone paper is to provide a focused survey of programmatic EISs (or PEISs), generic EISs (or GEISs), and programmatic Environmental Assessments, that have been prepared by Federal and State agencies. This paper will further discuss the role and use of these “broad action” environmental documents in aiding the preparing agency’s decision-making process while meeting that agency’s regulatory mandate.Item Open Access A Case Study of the Direction of a Federal Action Affecting the NEPA Assessment(2015-04-01) Palmrose, Donald E.Major Federal actions require National Environmental Policy Act (NEPA) assessments of the environmental impacts as documented in an environmental impact statement (EIS). New electrical generation units typically need one or more Federal approvals (i.e., permits or licenses) for various reasons. Federal approval may be necessary in order to satisfy a particular Federal environmental law (e.g., Clean Air Act, Clean Water Act, etc.), grant access to a proposed site, approve the proposed power plant design or technology, combinations of the above, or other reasons. This is true for new coal technologies, namely “Clean Coal” and advanced nuclear reactors, both designed to generate baseload electricity. This paper will examine two cases with a recent final EIS for a new generation of coal and nuclear power plants. The coal case will be the proposed FutureGen 2.0 Project (FutureGen), a clean-coal power plant, where the U.S. Department of Energy (DOE) proposes to fund the final design, construction, and initial operation of the project to implement the 2003 FutureGen Initiative (DOE/EIS-0460). The nuclear power plant case will be the proposed William States Lee III (Lee) nuclear station combined license (COL) with the purpose of providing additional baseload electrical generating capacity as evaluated by the U.S. Nuclear Regulatory Commission (NUREG-2111). This paper will examine the similarities and the differences between the two final EISs to assess how they were influenced in part by the nature of the Federal action and by the nature of the technologyItem Open Access Use by the U.S. Nuclear Regulatory Commission of the Obviously Superior Criterion for Alternative Sites(2015-04-01) Kugler, Andrew J.In its consideration of alternative sites for new nuclear power plants, the U.S. Nuclear Regulatory Commission (NRC) uses a standard that the applicant’s proposed site will not be rejected in favor of an alternative site unless the NRC staff determines that the alternative site is “obviously superior” to the proposed site1. In this paper I will summarize the historical development of this standard and how this standard has fared in the courts. I will then examine the extent to which this standard complies with the requirements of National Environmental Policy Act (NEPA) of 1969, as amended2 and the associated regulations published by the Council on Environmental Quality3. I will also examine how the standard compares to the approaches used by other agencies, such as the U.S. Army Corps of Engineers (which uses a standard of the least environmentally damaging practicable alternative). In conclusion, I will discuss whether the NRC should consider modifying the standard either because of challenges to its past implementation, or foreseeable changes in future implementation.Item Open Access Addressing Greenhouse Gases and Climate Change in NEPA Reviews As A Regulatory Agency(2015-04-01) Imboden, StaceyThe contemporary issues of greenhouse gas (GHG) emissions and climate change impacts have been receiving widespread attention over the last decade. For Federal agencies implementing the National Environmental Policy Act (NEPA), these issues have caused consternation because there has been very little guidance as to how to address these issues within NEPA analyses. In the last few years, training courses have been established to assist agencies in addressing their GHG footprints and climate change impacts. However, there has been little opportunity for Federal agencies to learn from each other about this topic due to different regulatory authorities and the recent emergent nature of this issue in the NEPA landscape. Over the last few years, U.S. Nuclear Regulatory Commission (NRC) staff has worked to address the dual issues of accounting for GHG impacts from a proposed project and the impact of climate change on resources affected by the proposed project. This paper will discuss successes and difficulties encountered by the NRC staff when trying to address these topics in NEPA reviews, what has been gleaned from training courses, Council on Environmental Quality (CEQ) guidance, review of other Federal agency Environmental Impact Statements (EIS), and finally, the frameworks developed specifically to address these topics for new reactor construction and operational emissions.Item Open Access NEPA and Independent Regulatory Agencies(2015-04-01) Hair, ChristopherItem Open Access Challenges in and Solutions for Integrating Biological Assessments Into Environmental Impact Statements(2015-04-01) Grange, BrianaIn light of the National Environmental Policy Act’s (NEPA) and the Endangered Species Act’s (ESA) allowance for Federal agencies to concurrently fulfill their obligations under each statute, this paper considers potential challenges faced by Federal agencies when integrating biological assessments prepared pursuant to the ESA into environmental impact statements (EISs) prepared pursuant to NEPA. Such challenges can result from differences in how the two statutes and their implementing regulations direct Federal agencies to define a proposed action’s environmental scope; evaluate impacts (including how and whether the agency addresses alternatives and cumulative impacts); consider mitigation measures; and frame impact conclusions. In describing these challenges, this paper considers the statutes themselves, each statute’s implementing regulations, Council on Environmental Quality (CEQ) guidance, U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) guidance and resources, relevant examples from Federal agencies, and pertinent court opinions. Solutions that enable Federal agencies to concurrently fulfill requirements of both NEPA and the ESA in a single, integrated document are proposed in the paper’s conclusion.Item Open Access NEPA Compliance and the Adoption of an Environmental Impact Statement by a Regulatory Agency(2015-04-01) Firth, JamesFederal regulatory agencies have responsibilities under the National Environmental Policy Act of 1969 (NEPA) at multiple stages of their regulatory responsibilities. This includes the development of regulations and when conducting their oversight responsibilities. This paper reviews the roles of regulatory agencies (the United States Nuclear Regulatory Commission (NRC) and the United States Environmental Protection Agency (EPA)) related to the disposal of high-level radioactive waste, spent nuclear fuel, and transuranic waste under NEPA and as modified by other laws. The focus of this paper is on how the NRC looked at how to address its responsibilities, with a brief review of the EPA to provide a contrast in how the two regulatory agencies comply with NEPA.Item Open Access Environmental Review Case Study for the Sequoya Fuels Corporation Uranium Conversion Site in Gore, Oklahoma(2015-04-01) Felsher, HarryThis environmental review case study reviews the historical information regarding the Sequoyah Fuels Corporation’s (SFCs) uranium conversion site (U.S. Nuclear Regulatory Commission (NRC) Materials License No. SUB-1010, Docket No. 04008027) in Gore, Oklahoma as well as the activities undertaken by the NRC to meet The National Environmental Policy Act (NEPA) of 1969, as amended1 and the NRC regulations implementing NEPA, found in Title 10, “Energy,” of the Code of Federal Regulations (CFR), Part 51 (10 CFR Part 51)2. This case study specifically addresses the following three questions: • How did groundwater contamination affect the NEPA environmental impact statement (EIS) required issues? • How did the NEPA process help or hinder the NRC? • How did the NRC decisionmakers use or not use the information in the NRC Final EIS?Item Open Access Decision Making in the Environmental Impact Assessment Process(2015-04-01) Evans, RobertItem Open Access Uses of Tiered Significance Levels in NEPA Documents(2015-04-01) Doub, J. PeytonItem Open Access Cumulative Effects on the National Historic Landmark District Since 1960(2015-04-01) Bjornsen, AlanThe United States Military Academy, located at West Point, New York is an American icon. It was the first military academy to be established (1802), and became a National Historic Landmark District in 1960. This designation occurred six years before the National Historic Preservation Act of 1966 was created. Three years later, in 1969, the National Historic Policy Act was signed into law. Beginning with the designation as a National Historic Landmark District, the cumulative effects of changes to the academy can be divided into three distinct periods: 1960-1969; 1969-1996; and post 1996. The first period pre-dated the National Environmental Policy Act, where new construction, rehabilitation, and demolition underwent only limited environmental review. The second period, after the enactment of the National Environmental Policy Act, held any changes to the Landmark District to a higher (stricter) standard. The third period, which began in 1996, was an era where specific procedures and methodologies were established to carry out the National Environmental Policy Act. A detailed environmental program was developed during this period to assess all proposed changes (new construction, rehabilitation and demolition) to the Landmark District, no matter how small. In addition to the environmental effects, the visual effects on the Landmark District were also evaluated. This paper describes how the cumulative impact of new construction, rehabilitation and demolition since 1960 has affected the Landmark District.Item Open Access Use and Documentation of Categorical Exclusions(2015-04-01) Bielecki, JessicaThe Council on Environmental Quality’s (CEQ) regulations define “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 these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” 40 CFR § 1508.4. The CEQ regulations go on to state that “[a]n agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” 40 CFR § 1508.4. This capstone paper evaluates CEQ guidance regarding categorical exclusions, and how a handful of agencies are using and documenting categorical exclusions. Specifically, the paper explores changes in CEQ guidance over the years. In addition, it evaluates a couple of agency’s procedures for applying and documenting categorical exclusions. Finally, the paper addresses related judicial decisions.Item Open Access Discussion of “Major Federal Actions” Under NEPA(2014-06-10) Chazell, Russell E.Section 102(2)(C) of the NEPA statute requires that significant effects to the human environment be documented in “a detailed statement by the responsible official” for “major Federal actions”. The statute itself does not plainly define what constitutes a major Federal action other than to say that “recommendation[s] and report[s] on proposals” qualify. This capstone paper will discuss the legislative history, case law, and practical application of NEPA’s “major Federal action” concept as it has been interpreted by the Nuclear Regulatory Commission (NRC) and Federal court litigation. This author is particularly interested in the recent decision by the US Circuit Court of Appeals for the District of Columbia Circuit which vacated the NRC’s 2010 Waste Confidence Rule. One of the bases for vacating the rule was the fact that the Court considered the Waste Confidence Rule a major Federal action under NEPA. The paper will conclude with a discussion of the appropriateness, under NEPA, of deeming a policy decision like the Waste Confidence Rule, a major Federal action when the final Agency action, issuing or renewing a license, relies on a separate and distinct environmental impact statement (EIS).Item Open Access Circuit-Splitting the Atom: How the Nuclear Regulatory Commission and the Department of Energy Reached Different Conclusions on the Need to Consider Hypothetical Terrorist Attacks under NEPA(2014-05-12) Lighty, Ryan K.This Paper examines possible explanations for the differing policies of the Nuclear Regulatory Commission (NRC), which adopted a "Ninth Circuit only" approach, and the Department of Energy (DOE), which adopted a single nationwide policy, in response to similar adverse appellate court rulings from the Ninth Circuit imposing the requirement to consider the possible environmental impacts of terrorist acts under the National Environmental Policy Act of 1969 (NEPA). The discussion begins with a general overview of NEPA and the need to examine "reasonably foreseeable" effects of proposed Federal actions. The Paper then provides a brief overview of Federal courts and the effect of adverse circuit court rulings on Federal agencies. The examination then turns to the relevant "proximate cause" case law on intervening criminal and terrorist acts, reviews the Ninth Circuit rulings imposing the NEPA terrorism requirements, and explains how the NRC’s rejection of the Ninth Circuit approach led to a circuit split. Finally, the analysis explores the various legal and pragmatic considerations that likely led NRC and DOE, despite being similarly situated, to adopt different responses to similar adverse rulings. The author concludes that, notwithstanding the possibility of a future Supreme Court decision or Congressional action to clarify the requirements of NEPA, both approaches are workable and serve the unique interests of the respective agencies.Item Open Access The Role and Use of Programmatic Environmental Impact Statements And Environmental Assessments in Fulfilling NEPA and State Environmental Mandates(2014-05-02) Park, JamesThe Council on Environmental Quality’s (CEQ’s) regulations in the Code of Federal Regulations (CFR), Title 40, Part 1500 (40 CFR 1500) implement Section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA). In doing so, the CEQ’s regulations tell federal agencies what they must do to comply with the procedures and achieve the goals of NEPA. The CEQ’s regulations at 40 CFR 1502.4(b) and (c) allow federal agencies to prepare environmental impact statements (EISs) on “broad actions” in which federal proposals can be evaluated geographically, generically, or by stage of technological development. Federal agencies have prepared broad action EISs and programmatic Environmental Assessments (EAs), when appropriate, to help in complying with NEPA. For their part, State agencies also have prepared these types of broad action documents to meet the relevant environmental regulations of the State. The purpose of this capstone paper is to provide a focused survey of programmatic EISs (or PEISs), generic EISs (or GEISs), and programmatic Environmental Assessments, that have been prepared by Federal and State agencies. This paper will further discuss the role and use of these “broad action” environmental documents in aiding the preparing agency’s decision-making process while meeting that agency’s regulatory mandate.Item Open Access Decision Making in the Environmental Impact Assessment Process(2014-04-08) Evans, RobertThis essay analyzes the decision-making processes used by government agencies to approve or reject projects that have significant impacts on the environment. One may believe that an agency will use a well-defined procedural process for making decisions, but in reality, various internal and external factors have greater influences over the decision maker. This essay examines some of the real-life inputs into the decision-making process and analyzes the results of three agency decisions that affected the environment. To begin with, I will describe some of the basic requirements for decision making as provided in the implementing regulations for the National Environmental Policy Act (NEPA). I will also discuss several academic observations about decision making with an emphasis on environmental assessments. I present three case studies involving different projects that were analyzed by government agencies using the Environmental Impact Statement (EIS) process. For each example, I provide an overview of the project and the significant issues as documented in the respective EISs. I also describe the agencies’ final decisions and the reasons given for each decision. I plan to demonstrate that government agencies tend to elevate social, cultural, and political concerns over the natural environment. In addition, I plan to demonstrate that unique factors influenced the decision maker in each situation. In the next section, I describe some of the regulatory requirements for environmental decision-making.Item Open Access Addressing Effects, Affects and Impacts to Human Health in Environmental Documents Responsibilities under NEPA(2013-08-21) Thompson, Sherrill E.The National Environmental Policy Act (NEPA) is a comprehensive and far reaching piece of legislation that requires all federal agencies and applicable federal projects to address the quality of the human environment and human health. These requirements are in addition to addressing impacts to the natural environment and other activities that may impact the environment. Evaluation, analysis, public disclosure and stakeholder involvement are key components; that are requirements of the NEPA process. If the federal project is in compliance with NEPA and its statures, all environmental documents must address impacts to human health, if applicable. The National Environmental Policy Act of 1969 is both subtle and complex, the requirements of the law is more extensive than complying with a legal requirement and creating environmental documents. NEPA is both a law with regulations and a process and the law of NEPA has become more complex since its passage. Its foundation is scientific, social, economic, health based, etc. Congress did not envision an administrative law like NEPA becoming as far reaching, with multi-faceted uses to ensure that the federal agencies follow and comply with the processes of NEPA. This paper will attempt to discuss the effects, affects and impacts that government projects and activities might have on human health. These types of projects would require an Environmental Assessment (EA) or an Environmental Impact State (EIS) to address the significant impacts that the federal government’s projects might have on human health. It is the responsibility of the federal government to take into consideration human health, when planning and implementing federal projects as required by NEPA. These federal projects would be those that are financed by federal funds and/or require a federal permit. From NEPA’s inception the creators of NEPA probably did not include input from health professionals during the formulation of the law in the United States. At that time, members of the health communities probably would not have been able to see the applicability of NEPA to human health either. Running Head: Addressing Effects, Affects, and Impacts to Human Health in Environmental Documents – Responsibilities under NEPA