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ENVIRONMENTAL/NEPA
News from across the Agencies |
 Secretary Kempthorne Proposes Narrow Changes To ESA Consultation Proces
Proposal is intended to update a portion of the ESA regulations dealing with section 7 of the Act. Section 7 governs the endangered species responsibilities of federal agencies. The proposed changes to the regulations are designed to reflect current practices and recent courts cases. The changes will make it easier for agencies to understand when and how the regulations apply.
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 Strategy to Assess the Nation’s Ground-Water
Scientists proposed a strategy to study the Nation's ground-water supply as part of the Federal government's effort to help address the Nation's increasing competition for water.
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 FHWA's website: Re:NEPA
Re:NEPA is an open forum that allows contribution of personal experience and opinion.
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If you have a news article you would like featured, please let us know. shipley@shipleygroup.com
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The practical reality is that courts will carefully check EISs for completeness of information and detail, soundness of analysis, thorough discussion of alternatives, and disclosure of sources. Failures in any of these areas can and often have led courts to mandate that agencies rework and reissue EISs.
In E.I. duPont de Nemours & Co. v. Train, the court interpreted “hard look” to mean that “assumptions must be spelled out, inconsistencies explained, methodologies disclosed, contradictory evidence rebutted, record references solidly grounded, guesswork eliminated and conclusions supported in a ‘manner capable of judicial understanding’” (541 F.2d 1018, 1038 (4th Cir. 1976)).
The judge’s language just quoted is a useful checklist for determining if an agency has taken the necessary hard look. Here are the judge’s points rearranged and rewritten into a checklist format
- Spell out assumptions.
- Explain inconsistencies.
- Disclose methodologies.
- Explain and resolve contradictory evidence.
- Explain referenced information carefully.
- Explain points so clearly that readers don’t have to guess about their meaning.
- Support conclusions so that judicial readers can understand the technical points being made.
Excerpt from the Shipley manual:
“Telling the NEPA Story”.
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