Even the casual college football observer has probably seen by now the wild final play of the Duke-Miami game on October 31. After the game ended, it was determined that Miami literally stole the win as a result of referee errors. The referees were suspended, apologies were issued, but the game result stuck. As a Duke alum, this “mitigation” outcome was of little solace.

Perhaps President Obama, an avid sports fan, was inspired by this lack of appropriate “mitigation.” Last week, the White House and the U.S. Department of the Interior each issued guidance on how certain federal agencies should approach mitigation in their environmental reviews and permitting. Though this policy is not legally binding like a rule or statute, its significance on all types of actions on federal and private lands cannot be understated. While on some levels, the Presidential Memorandum and DOI guidance simply echo the “holy trinity” of mitigation (“avoid, minimize, mitigate”), they arguably go much further. The Administration has added substantive elements to procedural requirements, and endorsed ubiquitous and strict avoidance and compensatory measures to offset development proposals. This policy has the potential to result in fewer approvals and greater delays. In that regard, this new guidance could represent a “lateral” from other Administration efforts (many of which have been covered in this space) to expedite environmental decisions and actions.

How might the guidance affect you? We offer five possible outcomes and related questions:

  1. The goal of “consistency”/“predictability” in mitigation is laudable. But the guidance allows for agency discretion, and leans so heavily toward preservation that the consistent approach will likely be a bias against feasible development. “Avoidance” measures cited in these materials can be read to include avoiding the project itself. For example, DOI’s guidance states that DOI will subsequently act to “establish guidance for denying authorizations in decision documents when impacts to resources and their values, services, and functions are not acceptable.” What is “acceptable,” and what mitigation would be required to render a project “acceptable,” seem entirely subjective. In this regard, even industries that the Administration has sought to promote, such as renewable energy, could face significant challenges.
  2. The guidance’s general approach presumes the government knows what areas are most suitable for development. There is no mention of consultation with industry or anyone else, when those discussions would be valuable. Prior government efforts to “zone” land for energy development, for instance, have had mixed success in attracting commercial interest. Moreover, these efforts have largely resulted in constricting the overall available area for development.
  3. The most publicized aspect of the Presidential Memorandum (Section 3(b)) supplies a “net benefit” or “no net loss” standard that an agency ostensibly can apply to any resource it manages (i.e., “wherever doing so is consistent with agency mission and established natural resource objectives”). How does this standard square with multiple use mandates? Will this standard be applied on a project-by-project basis, or within the agency’s entire jurisdiction, and at all times? Is the appropriate metric for “no net loss” total acreage? Location? Individual members of a listed species? Specifically as to species, how does net benefit/no net loss compare to the existing ESA regulations for authorizing take? And how is the U.S. Fish and Wildlife Service policy envisioned by the Memorandum (Section 4(c)) to “conserve species in advance of potential future potential future listing under the Endangered Species Act” different than the agency’s existing policy for candidate conservation agreements and the like?
  4. The guidance prioritizes “advance compensation,” i.e., “a form of compensatory mitigation for which measurable environmental benefits (defined by performance standards) are achieved before a given project’s harmful impacts to natural resources occur.” The availability of such measures is inherently limited, mostly by financial realities. The agencies theoretically implementing such upfront measures would have to clarify that future project applicants could rely on such measures to gain the benefit of shortened approval timelines. Will that certainty be forthcoming?
  5. More mitigation “guidance” is coming soon. Other than for the Forest Service, which must issue mitigation regulations, the Presidential Memorandum perpetuates non-legally binding agency “guidance” and “policies.” The result is prescribed measures and standards developed internally without the benefit of public notice and comment. While the guidance is not binding, as a practical matter the agencies will follow it in administering individual projects or permits. The use of such guidance in lieu of notice-and-comment continues to be a hot-button issue.

Even though the government has not sought public comment, we recommend strongly that affected parties consider commenting anyway given the potential broad scope and substantive import of these policies. Expressing perspectives and concerns at the outset may highlight important issues and potentially avoid disputes during the implementation stage. There is no doubt that the White House sees these as “win-win” policies; but it may be industry’s role to highlight how agency referees may need some oversight every now and again.

In the meantime, maybe I can propose that the ACC implement some “advanced mitigation” by giving the Blue Devils a few extra points each game during basketball season.