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CHAPTER 11
ll. Q. What actions must a lead agency take during the NEPA process when it
becomes aware that a non-federal applicant is about to take an action within
the agency's jurisdiction that would either have an adverse environmental
impact or limit the choice of reasonable alternatives (e.g., prematurely
commit money or other resources towards the completion of the proposal)?
A. The federal agency must notify the applicant that the agency will take
strong affirmative steps to insure that the objectives and procedures of NEPA
are fulfilled. Section 1506.1(b). These steps could include seeking injunctive
measures under NEPA, or the use of sanctions available under either the
agency's permitting authority or statutes setting forth the agency's statutory
mission. For example, the agency might advise an applicant that if it takes
such action the agency will not process its application.
12a. Q. What actions are subject to the Council's new regulations, and what
actions are grandfathered under the old guidelines?
A. The effective date of the Council's regulations was July 30, 1979 (except
for certain HUD programs under the Housing and Community Development Act, 42
U.S.C. 5304(h), and certain state highway programs that qualify under Section
102(2)(D) of NEPA for which the regulations became effective on November 30,
1979). All the provisions of the regulations are binding as of that date,
including those covering decision making, public participation, referrals,
limitations on actions, EIS supplements, etc. For example, a Record of
Decision would be prepared even for decisions where the draft EIS was filed
before July 30, 1979. But in determining whether or not the new regulations
apply to the preparation of a particular environmental document, the relevant
factor is the date of filing of the draft of that document. Thus, the new
regulations do not require the redrafting of an EIS or supplement if the draft
EIS or supplement was filed before July 30, 1979.
12b. Q. Are projects authorized by Congress before the effective date of the
Council's regulations grandfathered?
A. No. The date of congressional authorization for a project is not
determinative of whether the Council's regulations or former Guidelines apply
to the particular proposal. No incomplete projects or proposals of any kind
are grandfathered in whole or in part. Only certain environmental documents,
for which the draft was issued before the effective date of the regulations,
are grandfathered and subject to the Council's former Guidelines.
12c. Q. Can a violation of the regulations give rise to a cause of action?
A. While a trivial violation of the regulations would not give rise to an
independent cause of action, such a cause of action would arise from a
substantial violation of the regulations. Section 1500.3.
13. Q. Can the scoping process be used in connection with preparation of an
environmental assessment, i.e., before both the decision to proceed with an
EIS and publication of a notice of intent?
A. Yes. Scoping can be a useful tool for discovering alternatives to a
proposal, or significant impacts that may have been overlooked. In cases where
an environmental assessment is being prepared to help an agency decide whether
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