# Presentation: 003662

## CUMULATIVE IMPACTS

**CUMULATIVE IMPACTS**
**FHWA 2008 ENVIRONMENTAL CONFERENCE **
**LAWRENCE (LANCE) HANF, **
**SENIOR AGENCY COUNSEL, HCC-WE **

## No analysis; No Deference –Good area to sue 

## Introduction 

- Let’s start at the beginning:
- Scope of the NEPA document looks at
- 3 Types of actions (Conn., Cum., Similar)
- 3 Types of alts. (no Build, reasonable, Mitigation)
- 3 Types of impacts (Direct, In-dir, Cum.)

## Overview 

- Cumulative Impacts (40 CFR 1508.7)
- Cumulative Actions  (40 CFR 1508.25(a)(2)
- Connected Actions (40 CFR 1508.25(a)(1)
- Similar Actions [40 CFR 1508.25(a)(3)]

## Similar Actions 

- When an agency is proposing (is reasonably foreseeable) another action in the same area or at the same time, an  agency may WISH to look at the impacts in one document.

## Connected Actions 

- (See FHWA’s segmentation regulation & three part test).
-  Automatically trigger other actions.
- Cannot or will not proceed without the other.
- Interdependent parts of larger action.

## Cumulative Actions

- Agency Actions with other *Proposed*  agency action that have cumulatively significant impacts s*hould* be discussed in one document.
- A proposal is a stage where there is an agency goal and an active NEPA action – it is not a reasonably foreseeable action.

## Cumulative impacts

## THE IMPACT ON THE ENVIRONMENT WHICH RESULTS FROM THE INCREMENTAL IMPACT OF THE ACTION WHEN ADDED TO OTHER PAST, PRESENT, AND REASONABLY FORESEEABLE FUTURE 

**ACTIONS**** REGARDLESS OF WHAT AGENCY (FEDERAL OR NON-FEDERAL) OR PERSON UNDERTAKES**
** ****SUCH OTHER ACTIONS.****  **

## Continued 

- Cumulative impacts can result from individually minor, but collectively significant actions taking place over a period of time.
- Query: Why use the term actions?

## CASE LAW  

## Kleppe v. Sierra Club, 427 U.S. 390 (1976).

- Pre-CEQ regs.  (A cumulative action case)
- DOI Programmatic EIS on Coal permits and leasing program over 4 states.
- Court:  Scope of EIS is only for **proposed** projects not all future coal projects – no regional coal EIS required.
- Agency must take a **hard look** at environmental impacts.

## Fritiofson v. Alexander, 772 F2d. 1225 (5th Cir. 1985) 

- COE permit for 475-unit development on 145-acre
- Tract in Galveston Island, Texas.
- Lots of other past, present and
- 	 future developments in this area.
- Told sensitive area by NMFS & USF&W & concerned
- 	 with cumulative impacts.
- COE In the absence of any study concerning Galveston Island, the cumulative effects of this and similar projects cannot be estimated with any degree of success.

## Court: 5-step cumulative-effects study:

**Area where effects will be **
**felt from project.**
**Impacts that are expected**
** ****from project.**
**3. Id. other past, present and reasonably foreseeable actions with similar impacts and this area.**
**4. What those impacts are.**
**5.  Overall impact if the individual impacts accumulate.**

## Save the Yak v. Block, 840 F2d. 714 (9th Cir. 1988)

- Five sections of road w/ four E.A.s, one with none,
- 	all to primarily serve salvage timber sales.
- Court: If substantial Q’s raised regarding a signif. effect decision not to prepare & EIS is unreasonable.
- Agency decision not prepare an EIS is unreasonable unless it has a convincing statement why potential effects are insignificant.
- Defer to agency’s decision only if informed and well considered.
- e. Unconnected & unrelated action, but reasonable foreseeable future actions may result in cum. actions.

## Legal Issues in Cumulative Impact Analysis:

- How far in the future is still reasonably foreseeable.  How much certainty?
- What is the geographic area that we look at? More than one?
- What if there is no baseline information?
-    on resources or past project impacts?
- How far back in time do you go?
- How do you figure out synergistic effect?

## Other adverse cases

- _Muckleshoot Indian Tribe v. U.S.F.S_, 177 F.3d 800 (9th Cir. 2001) (Details on cumulative impacts of project and other proposed projects is required).
- _City of Carmel v. U.S. DOT_, 123 F.2d 1142 (9th Cir. 1997) (EIS must have enough detail to be useful to the decision-maker).

## Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) 

- Timber sale to raise funds to mitigate past timber sale impacts.
- Project in headwaters of the Coeur d’Alene River involving 14 watersheds.  12 of which are not functioning or are at risk.
- As for the past actions document only showed maps of timber sales.

## Cont. Lands Council v. Powell 

- NEPA requires a cataloguing of past projects with time, type, place, scale,
- AND how those projects effected the environment.  Test: sufficient detail to inform.
- As for a future timber sale, it was in another watershed and did not need eval.
- Westslope Cutthroat Trout – 6 year old study too stale.

## Texas Comm. on Nat. Resources v. Van Winkle, 197 F.Supp 2d (N.D. Texas 2002)  

- COE flood control project – Dallas Floodway Extension, Trinity River.
- 7 counts – won all but cumulative impacts
- Nice distinction between cumulative actions and cumulative impacts.
- Court: other COE, highway and County actions on resource had not reached level of a proposal.
- But these actions were foreseeable and needed a cumulative impact analysis.

## “That ringing in your ears - - I think I can help.”  We can be our own worst enemies. 

## Legal Issues in Cumulative Impact Analysis:

- How far in the future is still reasonably foreseeable.  How much certainty?
- What is the geographic area that we look at?  More than one?
- What if there is no baseline information on resources or past project impacts?
- How far back in time do you go?
- How do you figure out synergistic effect?

## Do we look at indirect impacts when we do our cumulative impact evaluation?
What responsibility do we have to mitigate other’s impact?
Lists of projects do not satisfy the test. Need to focus on the resource. 
Do we need to show a trend?  

- What responsibility do we have to mitigate other’s impact?
- Lists of projects do not satisfy the test. Need to focus on the resource.
- Do we need to show a trend?

##                   Focus on Issues

-                   Focus on Issues

- Area of effect – varies for each resource.
- Resource focused -- individually.
- Based on both indirect & direct effects.
- Separate sections for cumulative and indirect effects.

## Federal Highway Administration Western Legal ServicesSan Francisco, California