use the rubber stamp please

A kind reader left a link to this document, a letter from Margaret D. Laney, Senior Federal Affairs Director at BP to Nancy Sutley, Chair, Council on Environment Quality (CEQ), dated April 9, 2010.  Re: Steps to Modernize and Reinvigorate NEPA; Proposed Guidance: “Establishing, Applying and Revising Categorical Exclusions under the National Environmental Policy Act” (February 18, 2010).

What does this prove? Probably nothing. I guess it's circumstantial evidence, like all the stuff here. I'm not a lawyer, but I do know that circumstantial evidence counts for something. So someone should collect it all, just in case.


Anyway, here's the document the BP memo addresses, from Nancy Sutley, dated 2/18/10, to the heads of federal departments and agencies. It's a memo about defining categorical exclusions, those actions which are not expected to cause any environmental impact, which includes routine things like paying employees, financial transactions, building maintenance, etc. Rubber stamp sorts of things do not require an Environmental Impact Statement (EIS).

The purpose of excluding certain activities from careful scrutiny, and putting them in a rubber stamp category called "categorical exclusions" -- theoretically -- is to make the government run more efficiently, speed up the process, allocate resources efficiently, etc. However, there may be exceptions to the exclusions. There may be actions that DO require an environmental assessment or impact statement. Exceptions to the exclusions would kick in the NEPA standards. And there's a process to determine what can be rubber stamped and what can't.

The memo from Nancy Sutley states:

An inappropriate reliance on categorical exclusions may thwart the purposes of NEPA, compromising the quality and transparency of agency decisionmaking as well as the opportunity for meaningful public participation and review.

So it sounds like some people, unspecified, have possibly used these categorical exclusions as a loophole to push through actions that should properly come under more scrutiny. CEQ established a Task Force, and the Task Force recommended to tighten things up. The Sutley memo addressed that recommendation back in February.

...the intent of this guidance is to afford agencies flexibility in developing and implementing categorical exclusions while ensuring categorical exclusions are administered to further the purposes of NEPA and the CEQ implementing regulations. The guidance addresses how to:
• Establish categorical exclusions by outlining the process required to establish a categorical exclusion.
• Use public involvement and documentation to help define and substantiate a proposed categorical exclusion.
• Apply an established categorical exclusion, and determine when to prepare documentation and involve the public.
• Conduct periodic reviews of categorical exclusions to assure their continued appropriate use and usefulness.

It appears that Ms. Sutley is doing her job trying to close the loophole. The memo goes on to outline how an agency would figure out what to put on the exclusion list, and please don't get cute.

^^^^^^^

So  BP submitted comments and clarifications to the CEQ about this memo, on April 9, 2010, eleven days before the explosion. Based on the subject line, BP wants to help modernize and reinvigorate (the moribund?) NEPA by proposing some guidelines...?

BP supports the CEQ's objective, naturally, which is to "provide clear, practical guidance to land management agencies" as these agencies try to figure out what can be rubber stamped and what needs more review. Anything that needs more review will be filed with NEPA. BP would like this to be very clear and efficient. The more things that can be rubber stamped, the better? Who needs big government. BP is a sleek corporation, and BP likes to go fast.


NEPA reviews and maintains a database of the expected environmental impacts from decisions made by federal agencies.

The National Environmental Policy Act (NEPA) requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet NEPA requirements federal agencies prepare a detailed statement known as an Environmental Impact Statement (EIS). EPA reviews and comments on EISs prepared by other federal agencies, maintains a national filing system for all EISs, and assures that its own actions comply with NEPA.

So BP is supportive of the CEQ's objective, which is to provide guidance to the agencies who have to prepare these (damn?) Environmental Impact Statements for NEPA, and BP has a few helpful ideas about that.


So far so good? First BP reminds CEQ how to do its job: faster.

BP states that it is important for the CEQ to manage this guidance (to the other federal agencies, like MMS?) in such a way to avoid unnecessary paperwork and delays.

Why is BP always in such a hurry? (Except when they have to write checks to the people who have just had their livelihoods and environment destroyed...)

Things that DO require an Environmental Impact Statement include actions that would have a significant impact on people, natural resources, or which establish a precedent, etc. (See list here, starting at page 12 and also here.)

For instance, (d) Have highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks.

Like deepwater drilling? So if an agency wants to do something which will have a potentially significant environmental effect, then the appropriate agency would need to prepare an EIS.


In particular, BP does not much like this little bit here (in pink):

2. Extraordinary circumstances. Extraordinary circumstances identify the atypical situations or environmental settings when an otherwise categorically excludable action merits further analysis in an EA or EIS. Extraordinary circumstances are often presented as a list of factors that must be considered when the Federal agency determines relying upon the categorical exclusion is appropriate. Many Federal agencies present that list in their agency NEPA procedures (for example, several agencies use the potential effects on protected species or habitat or the potential effects of hazardous materials as extraordinary circumstances).

When proposing new categorical exclusions, Federal agencies should evaluate the extraordinary circumstances described in their NEPA procedures to ensure the circumstances adequately account for the atypical situations that could affect the use of the categorical exclusion for a particular action. For example, the presence and nature of a protected resource (e.g., threatened or endangered species or historic resource) and the proposed action’s impacts on that resource, is an appropriate extraordinary circumstance for situations where the categorical exclusion would not be appropriate for a proposed action taking place in areas where protected resources may be present. When the extraordinary circumstances provided in the agency NEPA procedures are not sufficient for a newly proposed categorical exclusion, an agency can identify extraordinary circumstances that will specifically apply to the new categorical exclusion. Such extraordinary circumstances must be issued along with the new categorical exclusion in both draft form, for public review and comment, and in final form.

I think what that means is that if an agency wants to put something in the rubber stamp category, then it really needs to be sure that there's nothing like a "threatened or endangered species or historic resource" that could be damaged. Otherwise, sorry, but no rubber stamp.

QUESTION: Does the Gulf of Mexico qualify as an "historic resource?"

BP would like some clarifying language.

BP believes this should depend on the nature of possible impacts, if any, to the protected resource and therefore recommends inserting clarifying language around a determination that a proposed action will have non-negligible or non-beneficial impacts on that resource.

What sort of clarifying language? Perhaps something that would allow them to wriggle off the legal hook should something go horribly wrong, like BP and friends accidentally opening up an oil volcano on the floor of the Gulf of Mexico?

Remember, this memo is sent eleven days before the rig exploded.

In addition, BP believes that missing in this particular subsection is a reference to mitigation that could be used to eliminate or minimize impacts to an acceptable degree. If this was the case, a categorical exclusion would be appropriate....Including a reference to mitigation is essential to ensuring this agency takes this aspect into consideration when deciding if a categorical exclusion is appropriate even in areas where a protected resource may exist. When mitigation is used properly, “atypical situations” as described in this guidance can be rectified.

So it sounds like BP would like to acknowledge some (unspecified) risks to (unspecified) species by doing (unspecified) mitigation activities, and that would "rectify" the situation (ie: OK to rubber stamp now!).

The use of a categorical exclusion is provided for in NEPA.

C'mon!

Granting a categorical exclusion does not mean an agency ignores environmental aspects of a project;

We would never. You know that. C'mon.

rather, this is a mechanism whereby an agency verifies that impacts associated with the proposed action are minimal or non-existent.

We are always so careful.

If the exclusion criteria are met, no detailed analysis would be required.

Use the rubber stamp. Please.

If the criteria are not met, the project would be taken to the next level of NEPA analysis -- an Environmental Assessment as provided for in the CEQ regulations.

We promise to jump through the hoop if we have to.

This process would work well with the permitting process for federal actions since virtually all aspects of our exploration and production operations, including new land disturbances and offshore operations, require a permit.

Look at all the hoops we already jump through! C'mon. Throw us a bone.

Integrating categorical exclusions into the permitting process does allow an expedited review of projects that are considered routine and have little or no environmental impact.

Kiss kiss hug hug?

SNIP.

Overall, in finalizing the proposed guidance document, CEQ should recognize that categorical exclusions are to be favored under sections 1500.4, 1500.5, 1507.3, and 1508.4 of CEQ's regulations when an activity can reasonably be shown not to have an effect, cumulatively or individually, on the environment. The proposed guidance should avoid language or creation of decision and review processes that suggest that categorical exclusions are unusual or exceptional agency actions under NEPA. Instead, consistent with existing CEQ regulations at 40 C.F.R. Sections 1500 et. seq., CEQ guidance should reiterate that categorical exclusions are among the NEPA alternatives for an agency to use where appropriate in the course of sound and practical exercise of its NEPA responsibilities.

In other words, please don't be a big pain in the ass, Nancy.

USE THE RUBBER STAMP. Please.

Sincerely, Margeret

Attachments:

CEQ Regulations
Part 46, Implementing NEPA
Congressional and Task Force Review of NEPA