National Association of Counties * Washington, D.C.      Vol. 33, No. 11 * June 4, 2001

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‘Cooperating’ under NEPA: pitfalls and promises

By Beverly A. Schlotterbeck
executive editor

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Dina Beard

Being a cooperating agency under NEPA is not for the faint of heart. Nonetheless, it’s a county’s best chance at having a seat at the table when plans are afoot that would affect the environment in their counties. So said Dina Bear, general counsel for the Council on Environmental Quality. The Council on Environmental Quality coordinates federal environmental efforts and works closely with agencies and other White House offices in the development of environmental policies and initiatives.

Bear was on hand at the WIR conference to give delegates an overview of NEPA, the National Environmental Policy Act, as well as practical information on how counties can become involved in the NEPA process.

To begin, Bear explained that every federal agency, except EPA, has its own NEPA procedure. Even the Department of Defense must comply with NEPA provisions, although if DoD is engaged in a classified activity any environmental impact statement (EIS) or environmental assessment (EA) connected with the project will be classified as well.

Under state law, most counties have statutory authority for the health and welfare of their citizens and therefore should be a cooperating agency on all land management decisions. “It’s very difficult to think of any situation that you wouldn’t be eligible to be a cooperating agency,” Bear said.

On the other hand, many in the room noted they had received resistance from federal land management agencies. According to Bear, this resistance stems from fear. Fear of political pressure, fear of the unknown, the “we’ve never done it before” syndrome. “The resistance is much more psychological than anything else,” Bear said.

What does it mean to be a cooperating agency? “Lots of work, and not much in the way of resources, “ Bear said. Nonetheless, “cooperating agency status gets you in the door for all the closed meetings.”

The practical side of being a cooperating agency
Even though Bear believes every county should be eligible for cooperating agency status, no one comes knocking at their door. So, the first thing she advised is calling the appropriate federal agency as soon as you hear about an EIS in your area.

“If you receive no response or a negative response, ask the agency to put its response in writing. Get in touch with us, “ she advised. While CEQ cannot order a federal agency to designate a county as a cooperating agency, it can try to persuade the agency to take another look, Bear explained.

Once a county is on board as a cooperating agency, Bear stressed the need to get a written agreement. “Whatever you do, please, please, please, think about doing a written agreement.” Bear pleaded.

She advised that the agreement should cover:

• subject or breadth of the project — are you just in for one project or do you want to be a cooperating agency on all projects related to a particular subject.
• time period
• team formation — who will represent you
• who will attend meetings
• alternative analysis
• studies and contracting — “Raise the issue of money right away, sometimes agencies can include fund requests in their budgets,” she advised, and
• dispute resolution process.

Bear told participants about a relatively new agency, the Institute for Environmental Conflict Resolution, based in Tucson, Ariz., that is staffed with neutral, trained mediators who could help settle disputes. (You can find out more by visiting the institute’s Web site at www.ecr.gov/about.htm.)

Even if a federal agency lets you at the table, it doesn’t necessarily mean you’re invited for dinner. “Taking your county seriously does not mean they have to do everything you say,” Bear acknowledged.

(For more information on the Council on Environmental Quality, go to the Web at www.whitehouse.gov/ceq; or call (202) 395-5750.)