Activities subject to permit
Which activities require an environmental permit and how are they classified for such purposes?
Certain environmental permits can cover a range of activities but address specific environmental media. For example, the Clean Air Act requires pre-construction and operating permits (New Source Review and Title V). The Clean Water Act authorises permits for point source discharges into waters of the United States and the filling of jurisdictional wetlands.
Other permits authorise and regulate specific activities or industries. Under the Clean Air Act, for example, different facilities and equipment are subject to particular emissions standards. Others authorise mining, well drilling and waste management.
Which authority issues permits?
Often the Environmental Protection Agency (EPA) or delegated states. Clean Water Act wetlands permits are issued by the US Army Corps of Engineers with EPA oversight. Federal agencies with jurisdiction over federally owned or managed lands may permit surface or subsurface activities on those lands. State and local authorities also may issue or review permits.
What are the procedural and documentary requirements to obtain a permit?
Requirements vary significantly. Typically, agencies require a complete application to explain the proposed activities, any anticipated adverse environmental consequences and any actions to limit or mitigate them. Applicants generally must then address any questions or concerns from the agencies. Public involvement sometimes is required or warranted.
Do any permit fees apply?
Yes, in most cases. Fees vary across programmes. Agencies usually charge fees to recoup their administrative costs from users of the corresponding permit programme.
Validity period and renewal
What is the validity period for permits and how can they be renewed?
Permit terms vary widely, from months to several years. Federal agency regulations for most permit programmes provide whether and how the permits can be renewed, and whether the renewal process differs from the original permitting process.
Can permits be transferred? If so, what procedure applies?
Yes, but it varies. Typically, agencies retain discretion to approve or deny a transfer, and to ensure that the transferee is qualified to hold the permit.
Are permit decisions subject to appeal? If so, what procedure applies?
Mostly yes. Administrative review or appeal procedures differ among agencies. Once administrative remedies have been exhausted, a final agency action may be appealed to federal district court, or in some instances directly to a US court of appeals. Individual environmental statutes or the general venue statute dictate where a lawsuit may be brought. Judicial review follows the Federal Rules of Civil Procedure, the Federal Rules of Appellate Procedure and individual courts’ local rules.
What are the consequences of violating permit rules and decisions?
Federal and state agencies may pursue injunctive relief and require the abatement or cessation of permit violations or environmental harm. Remedial steps may include installing equipment to control emissions, ceasing certain activities or revoking a permit or shutting down a facility. Many environmental statutes also authorise civil and criminal penalties, often calculated on a per-day, per-violation basis. Agencies may – and sometimes must – issue warnings or notices of violations before taking more severe enforcement actions. An agency typically may pursue an administrative enforcement action or sue the violator in federal court. In some instances, absent government enforcement, citizen suits may be brought in federal court against violators.
Environmental impact assessments
Projects subject to assessment
What projects require a preliminary environmental impact assessment?
The National Environmental Policy Act (NEPA) applies to most discretionary federal agency actions, including approving, financing, assisting or conducting plans, projects or programmes, whether regional or site-specific. Certain actions are exempt from NEPA, such as ministerial agency actions or where potentially duplicative environmental reviews are required. In some ‘small handles’ situations where only a small component or minor approval involves a federal nexus, NEPA might not apply to the larger project.
NEPA requires an environmental impact statement for “proposals for… major Federal actions significantly affecting the quality of the human environment”. A less detailed environmental assessment may suffice for a federal agency action with insignificant or unclear impacts. Finally, categorical exclusions apply to categories of agency actions that do not significantly affect the environment individually or cumulatively. An agency can perform more detailed review under NEPA than legally required.
Certain states have laws analogous to NEPA, which vary significantly.
Scope of assessment
What environmental factors and risks fall within the scope of the impact assessment report?
Agencies must consider the direct, indirect and cumulative effects of their actions, including ecological, aesthetic, historic, cultural, economic, social or health considerations. Such effects must:
- be reasonably foreseeable;
- bear a reasonably close causal relationship to the federal agency action at issue; and
- interrelate with environmental considerations.
Through upfront scoping, agencies can determine which types of effects are pertinent to the action at issue and which can be eliminated from further consideration.
Who conducts assessments?
The lead federal agency, with invited assistance by cooperating or participating federal, state, tribal and local agencies with jurisdiction or special expertise. The lead agency also may hire and supervise third-party consultants, typically funded by the project proponent, to prepare the National Environmental Policy Act analysis. The project proponent and public also submit information and comments during this process.
Are the results of impact assessments publicly available?
Yes. Most categorical exclusions are issued without public comment. Environmental assessments are increasingly published in draft form for public comment, before the agency finalises it and issues a finding of no significant impact. An environmental impact statement elicits the most public process, requiring the agency to publish in the Federal Register a notice of intent, a notice that a draft environmental impact statement is available for public comment, and notices of the final environmental impact statement and the record of decision. Agencies now post certain projects to a publicly available dashboard and track their environmental review and permitting progress.
Can the results of an impact assessment be contested? If so, what procedure applies?
Yes, when the agency issues its final decision. Some agencies allow an initial administrative appeal. Final agency actions may be challenged under the National Environmental Policy Act in a federal district court, often where the relevant project is located. The time for filing a complaint is limited by statute and may range from a few months to a few years. Courts evaluate compliance based on the underlying administrative record and apply a ‘rule of reason’ that largely defers to an agency’s ‘hard look’.
Click here to view the full article.