NEPA Hypothetical
This hypothetical is fictional, but its facts are largely derived from several real-life controversies involving NEPA and CEQA. The questions raised therefore are analogous to questions that attorneys often confront when participating in NEPA processes.
This hypothetical was originally created by Dave Owen (University of Maine School of Law) and was adapted for a California setting by Eric Biber (Berkeley Law).
General Information
In 2010, the Lawrence Berkeley National Laboratory (LBNL) proposes to create a new campus for research on renewable energy. LBNL has exhausted all available space on its existing hilltop campus, and so is looking elsewhere in the Bay Area for space. LBNL would prefer that the new campus be as close as possible to the existing campus in order to make collaboration among researchers as easy as possible. After an initial survey of possible locations throughout the Bay Area, LBNL has settled on a parcel of land already owned by the University of California, which has a close relationship with LBNL. The land is relatively close to the existing LBNL campus and the University of California, Berkeley, and is located in the industrial city of Richmond on the edge of San Francisco Bay.
LBNL approaches the city of Richmond, which views the project as a potential source of high-paying jobs and enthusiastically supports it. The parcel historically was used for heavy industry, including a railway yard,[1] but now sits vacant, and the city hopes to redevelop it. LBNL and University planners are thrilled at the prospect of a waterfront location, which they feel will allow for a design reflecting the profile and prestige they hope to achieve for the new campus.
LBNL, the city, and the project developer jointly create a preliminary set of plans for the facility. They describe those plans as being “for planning purposes only, and subject to change.” Among other things, the plans describe a single major research building and an attached 250-space parking structure. The building will contain laboratories for researchers, a hazardous waste disposal facility,[2] and a “community outreach facility”. The “community outreach facility” will include a range of activities to further LBNL’s goal of becoming better integrated with poor and minority communities in the East Bay. Proposed activities include guided tours for local school children and training programs in green jobs for released ex-convicts. In total, the building itself will occupy approximately three acres of land. Constructing the building will necessitate filling some wetlands adjacent to the Bay, and the building also will extend out over the Bay itself. The preliminary plans envision offices, classrooms, conference rooms, and a dining terrace with large glass windows looking out over the water. Building that portion of the building would require dredging some sediments and then placing fill within the Bay, but the architects and LBNL view that portion as essential to the site design.
A map of Richmond and the surrounding area.
In a public press release, LBNL, the developer, and the city declare their hopes to move forward at the site, describing it as ideally suited for their needs, and describing the project as bringing significant benefits to Richmond, a city that is both extremely economically depressed and heavily minority. They also emphasize the importance of completing the project in a cost-effective and efficient fashion. Because LBNL has limited funding, they say, any significant cost increase could jeopardize the whole project.
LBNL and the developer begin to move forward with the process of obtaining permits for the site, including jointly obtaining a permit from the Army Corps of Engineers (a federal agency). Under section 404 of the Clean Water Act, the Army Corps has permitting authority over dredging and filling of “navigable waters.”
Some residents of the nearby Point Richmond neighborhoods aren’t so sure about the project’s benefits. Their concerns vary: some don’t want their water views interrupted; some are worried about increased traffic through the neighborhood as people access the site; some are worried about proximity to a hazardous waste disposal facility; and some are particularly worried about the human traffic to the “community outreach facility”. Additionally, while some Point Richmond residents believe the project is basically desirable but needs some revision, many residents hope that the vacant parcel would be redeveloped primarily as a waterfront recreational park. The homeowners also have concerns about the process of selecting a site; shouldn’t the university have publicly evaluated alternative sites, they ask, before publicly stating a preference and developing plans for this location? More specifically, couldn’t vacant or underutilized land elsewhere in the Bay Area—the closed race track in nearby Albany, for example—also be used, particularly since it is closer to regional roadways? To coordinate their advocacy, the homeowners form a group called Protect the Point (PTP).
The Point Richmond residents aren’t the only ones with concerns. Through informal discussions with the Army Corps, the university, and the developer, EPA raises concerns about the management of dredged materials, which could contain heavy metals and other toxic residues deriving from the site’s industrial past. Because of that past industrial use, the on-land portion of the site also has potential issues with toxic contaminants, and EPA asks the Corps and LBNL to explain how those contaminants will be cleaned up or managed in place, and what risks those contaminants might pose.
You will be divided into teams, which will represent LBNL, the developer, the Army Corps, and Protect the Point. Each team will receive a sheet of additional instructions and questions (so don’t assume you know everything about the other teams’ interests and concerns).
In class, we will have a condensed (and somewhat but not entirely artificial) simulation of a NEPA process. The teams representing LBNL and the developer will first advise the Army Corps about their preferred approach to the NEPA process. The Army Corps then will have a few minutes to consider that advice, and then will provide us with a brief summary of its planned approach. Protect the Point will then have the opportunity to request changes to that approach, and the developer and LBNL can respond to those requests (the response should be provided by a different person or different people than provided the initial statement of position). The Army Corps team then will make a final decision on its planned approach. We then will have an open discussion of the process, and will consider how the process might play out from that point onward.
The exact schedule will be as follows:
-LBNL initial presentation (8 minutes)
-Developer initial presentation (8 minutes)
-Army Corps deliberates; other teams meet internally or with each other (5 minutes)
-Army Corps states its initial plan for proceeding with NEPA compliance (4 minutes)
-PTP responds to LBNL, Developer presentations, Army Corps’ initial plan (8 minutes)
-LBNL response (up to 4 minutes)
-Developer response (up to 4 minutes)
-Army Corps deliberates (up to 4 minutes)
-Army Corps announces it final approach
-Open discussion of the process
As you present, please assume that you are speaking at a public meeting. That means you’re speaking not only to the Army Corps staff sitting in front of you, but also to an audience of community members, attorneys, and, most likely, local journalists sitting in the seats behind you.
As you participate in the simulation, consider, from your own perspective, what benefits you think NEPA review of this type of project might create, what burdens it might impose, and whether you think that on balance the NEPA process is worthwhile.
[1] Through the late 20th Century, railroad engines and switching equipment used PCBs (polychlorinated biphenyls) in their electrical equipment. Those PCBs often spilled and contaminated the soil and groundwater beneath the railroad yards. PCBs are known to be potent toxins and carcinogens. PCB contamination has lead to several railroad yards around the United States being designated as hazardous waste sites requiring substantial remediation.
[2] A number of the research activities that LBNL proposes to carry out (e.g., research into innovative means of fabricating solar panels, or sophisticated energy storage technologies like lithium batteries) require the use of substances designated as hazardous under state and federal law.