The National Environmental Policy Act Can Give Communities Impacted by Toxic Flooding a Voice

by Elena Franco

August 27, 2018

This post is part of a series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities. It is based on a forthcoming article that will be published in the Sustainable Development Law & Policy Brief.

As climate change makes extreme weather events increasingly frequent, the risk of flooding on our rivers and shores increases. As I noted in a previous post in this series, this puts us at risk for toxic flooding – the combination of floodwaters and industrial toxic spills unleashed during flooding events. Although the storms themselves are not preventable, we can at least avoid placing toxic chemicals in the path of floodwaters. So what role can the American people play in developing stronger, more proactive policies designed to prevent, rather than merely respond to, toxic flooding? 

The good news is that existing federal and state environmental laws provide vehicles to ensure government uses the best information to make the best decisions while simultaneously giving a voice to those most impacted by those policies. At the federal level, we have the 1970 National Environmental Policy Act (NEPA), and since 1973, Virginia has its own policies under the Virginia Environmental Impact Report procedure (VA EIR). Neither NEPA nor the VA EIR mandates any specific decision, but they both require government agencies to take a hard look at the potential consequences of their actions. 

Both NEPA and VA EIR procedures shine a light on projects that can either affect flooding or put toxins in the path of floods, such as Army Corps of Engineers-supported flood control projects, federal permitting for nuclear plants or pipelines, disaster-related projects funded through the Federal Emergency Management Agency (FEMA) and the Department of Housing and Urban Development (HUD), and state-supported projects that involve transportation, drilling, and more. 

NEPA is built around the interrelationship between our built and natural environments. It recognizes that the choices we make today can have devastating effects on these environments and cause aesthetic, historical, cultural, economic, social, and health impacts. NEPA requires the federal government to assess the possible significant environmental impacts of any major federal action through an Environmental Assessment (EA) or Impact Statement (EIS). Notably, NEPA regulations require agencies to provide public notice and environmental documents to those interested in or affected by the federal action, giving citizens a platform to comment and raise important issues for their communities. And, more importantly, formal submission of comments gives a commenter standing to bring a case in court if they feel the agency has not adequately addressed an issue they raised. 

So how does a national statute help Virginia residents? When the federal government makes a decision that can affect a given community, residents have the right to be informed of the plans and to provide additional analysis and/or alternatives. An example of Virginia citizens influencing federal and state actions is the Route 50 traffic improvement project in and around Middleburg, Virginia. Implemented by a partnership of the local community, local government, and Virginia's Department of Transportation (VDOT), the project received funding through the federal transportation enhancements program and thus triggered NEPA procedures. VDOT had suggested the conventional solution of expanding Route 50 to a four-lane divided highway and creating bypasses around the small towns along its path. Virginia citizens used NEPA's public involvement processes to demonstrate that this solution would increase speeding and create economic hardships for local businesses. The citizens presented an alternative solution – including entranceway features at the edges of the towns and other elements – that could be at least as effective and less costly. As a result, this alternative design was approved and completed in 2016

Virginia's own code requires state agencies to prepare and submit an environmental impact report (EIR) for each "major state project." Like NEPA, VA EIR procedures do not require that the EIR be made public, but there is public notice and consideration of public information by the Department of Environmental Quality (DEQ)

What does it take to trigger NEPA or VA EIR procedures? For NEPA, a major action can be federal or federalized. "Federalized" means that the project is enabled through federal approval of leases, licenses, and permits and/or is supported by some federal funding. As an example, the Ohio Creek Watershed project, designed to reduce flooding in Norfolk, Virginia, and create greater resilience, among other objectives, receives federal funding. Thus, this project triggered NEPA procedures: the City of Norfolk has publicized its plans and asked citizens to "comment on the overall project, any component of the project and/or your impression of the environmental impact of the various components of the project." 

The Cephas Open Loop Biomass Manufacturing Facility is another example where an environmental assessment provided space for community comment because the project requested state and federal funding (the facility ultimately was not built). Re-permitting by the Nuclear Regulatory Commission for Virginia nuclear facilities along the James River also triggered NEPA, as happened in 2002

Once the "federal action" trigger is satisfied, additional components are analyzed – the potential significant impact on the quality of the human environment, for instance. This is expansive enough to include the effects of extreme weather events because NEPA procedures include consideration of impacts with low probability but severe consequences

While NEPA and Virginia's EIR lay out procedures for government analysis of impacts, they also provide an important platform for civic engagement. NEPA and the VA EIR processes allow residents to exercise their authority through public comments and hearings. While these comments are not a vote, they are an opportunity for residents' voices to be heard, providing a platform to address and urge prevention of the risks of toxic flooding.

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Also from Elena Franco

Elena Franco was a CPR intern in 2018 who focused on toxic floodwaters in Virginia. A third-year law student at American University Washington College of Law, she has long been an advocate for climate justice, working on divestment at her college and for the District of Columbia. 

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