On January 14, 2011, the White House Council on Environmental Quality (“CEQ”) finalized new guidance on the use, documentation and enforcement of mitigation measures under the National Environmental Policy Act (“NEPA”). While the Guidance – which was initially proposed in draft form last February – is non-binding, its interpretation of existing authority could effectively create additional, mitigation-related requirements for project applicants and lead agencies under NEPA.
Unlike New York’s State Environmental Quality Review Act (“SEQRA”), NEPA imposes no substantive requirement to mitigate a project’s adverse environmental impacts. When a federal action would have significant adverse impacts, however, the lead agency must prepare an Environmental Impact Statement (“EIS”) which analyzes, among other subjects, the “means to mitigate” those impacts. More commonly, an applicant will incorporate mitigation measures into its project design in order to avoid triggering NEPA’s EIS requirements, resulting in a Finding of No Significant Impact (“FONSI”).
The new Guidance endorses the use of these “mitigated FONSI[s]” when accompanied by “enforceable mitigation measures.” However, the Guidance warns that “failure to document and monitor mitigation may … undermine the integrity of the NEPA review.” Accordingly, CEQ recommends a series of steps to ensure that mitigation commitments are expressly stated and adhered to, and calls upon individual agencies to supplement its Guidance with their own procedures that make “relevant funding, permitting, or other agency approvals … conditional on performance of mitigation commitments.”
First, the Guidance advocates the identification of specific mitigation measures within an EIS or Environmental Assessment (“EA”), including measurable performance standards or expected results. To the extent that federal funding is required to implement these mitigation commitments, NEPA documentation must analyze the likelihood of whether or not such funds are expected to be available throughout the life of the project.
For certain “important cases” where mitigation eliminates the need for an EIS, the Guidance calls for monitoring of a project’s mitigation commitments after its approval. Not all mitigated FONSIs require formal monitoring, and the Guidance does not provide a definition of “important cases,” relying on agencies to use their judgment in making such determinations. The party who will be performing the mitigation is responsible for developing and implementing the monitoring program, drawing upon public input and informing the public of the results and progress of such monitoring where appropriate.
Finally, the Guidance discusses remedies for ineffective or non-implemented mitigation measures. While NEPA does not require mitigation of adverse impacts, mitigation failures may give rise to adverse impacts which were not considered during the initial review process, triggering the need for an EIS (in the case of a mitigated FONSI) or supplemental EIS (if an EIS was already prepared) in the event that additional federal approvals or actions are anticipated. Even when supplemental documentation is not appropriate, agencies are encouraged to incorporate monitoring results into future NEPA analyses, so as to avoid relying upon mitigation measures that have proven ineffective in the past.
With this document, CEQ has now finalized two of the three NEPA Guidance documents released in draft form last year. The last in the series – Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gasses – is expected to be finalized later this year.
 See CEQ, Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (“Mitigation Guidance”), Jan. 14, 2011.
 See, e.g., 40 C.F.R. § 1502.16(h).
 Mitigation Guidance at 7, n. 18. While mitigated FONSIs have long been accepted as a matter of practice, prior CEQ Guidance from 1981 had cast doubt upon their legitimacy under NEPA. Id.
 Id. at 2.
 Id. at 8.
 Id. at 9. In some cases, failure to provide such disclosure could result in delays and preparation of a supplemental EIS should the necessary funding later become unavailable. Id.
 Id. at 10.
 Id. at 12.
 Id. at 15.
 See CEQ, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, Feb. 18, 2010.