Environmental Impact Statements (EISs)

When President Nixon signed the National Environmental Policy Act of 1969 into law on January 1, 1970, few people, especially those in Congress who enacted the law, anticipated that the courts would construe this simple four-page statute to require the preparation of massive detailed reports exploring all aspects of potential adverse environmental impacts associated with a planned project. Over time, many of the difficulties associated with determining whether an EIS is required, and whether the final EIS product is adequate, have been eased, but many uncertainties remain.

An EIS is required for any major federal action having a significant impact upon the environment. This provision covers most major projects that are supported by federal funding or for which any federal permit is required, unless a specific exemption applies (as is the case for certain permits issued by EPA). Provisions exist for issuance of an Environmental Assessment leading to a Finding of No Significant Impact.

• Assistance in preparation of EISs.
• Critiques of environmental impact statements and environmental assessments.
• Litigation involving adequacy of EISs.
• Litigation regarding adequacy of agency NEPA implementing procedures for siting major nuclear facilities.

Morgan Lewis has provided assistance to municipalities in EIS preparation for public assistance grant applications, and advice regarding the sufficiency of impact statements prepared for major developments in which clients are potential investors or participants. The Firm has also represented clients in federal court litigation involving challenges to EISs and related project permits issued by the U.S. Army Corps of Engineers. These challenges generally involve either the adequacy of the EIS itself or compliance with NEPA procedural requirements. We have represented a state transportation department seeking to construct a marine terminal, a municipal water authority seeking to construct a reservoir, oil and gas pipeline companies, and a privately funded toll road, all of which involved complex proceedings under NEPA, Clean Water Act section 404, and the Rivers and Harbors Act. Additionally, Morgan Lewis attorneys have litigated in federal appellate court the adequacy of the NRC s NEPA implementing procedures and have counseled parties affected by NRC s rulemaking on NEPA considerations for uranium fuel cycle facilities.

FOIA Requests

The FOIA requires that all governmental agencies make non-confidential information in their files available to the public. This is an especially important tool in dealing with EPA because so many of the Agency s actions are influenced by internal guidance documents and policies that are not published in the Federal Register or otherwise generally available. Most states have statutes analogous to the federal FOIA which can also be used to obtain information on environmental matters. Morgan Lewis attorneys routinely exercise rights under the FOIA to obtain material important to the effective representation of our clients. We also counsel clients on how to reduce the possibility that confidential data they submit to federal agencies will be released to competitors. Morgan Lewis attorneys have litigated this issue on behalf of clients seeking to maintain the confidentiality of such documents.