Special Institute on the

National Environmental Policy Act

  • Denver, Colorado
  • Nov. 2-3, 2017
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Thursday Morning



    Executive Director Rocky Mountain Mineral Law Foundation, Westminster, CO
  2. Michael J. Malmquist

    Shareholder Shareholder, Parsons Behle & Latimer, Salt Lake City, UT
  3. Steven K. Imig

    Denver, CO
  4. Hadassah M. Reimer

    Holland & Hart LLP, Jackson, WY

Introductions and Opening Remarks


    Senior Associate Hogan Lovells US LLP, Denver, CO

    Associate Lewis, Bess, Williams & Weese, P.C., Denver, CO

Laying the Groundwork—NEPA’s Purpose, Levels of Agency Review, and Process Overview

We begin by reviewing the basics of the NEPA process, with guidance on what needs to be done and when, including scoping, draft preparation, public comment periods, final document preparation, and the record of decision. This introduction will discuss the levels of NEPA review—environmental impact statements (EISs), environmental assessments, and categorical exclusions—and the standards for determining when each is appropriate, including defining “significance” and application of “extraordinary circumstances.”

  1. Brad Grenham

    U.S. Department of the Interior, Office of the Solicitor, Portland, OR

Anatomy of an EIS—What Goes into the NEPA Document?

This overview of the required elements of an EIS, and typical practices, will include the purpose and need statement; the proposed action and alternatives; the affected environment; evaluation of direct, indirect, and cumulative impacts; and mitigation measures. The speaker will also cover the differences between an EIS and an environmental assessment (EA), and provide an introduction to the standards for information and analysis of impacts in those documents (such as the “hard look” standard).

Hosted Refreshment Break

  1. Constance L. Rogers

    Founder and Principal Terra Law Group LLC, Golden, CO

NEPA Strategies—Legal Compliance and Process Efficiencies

Moving on from the basics, this presentation will introduce various concepts and strategies that have been developed to streamline the NEPA process within the confines of the legal requirements, such as (1) programmatic review, tiering, and supplementation; (2) proponent/contractor prepared NEPA documents; (3) agency NEPA guidance; and (4) combining NEPA compliance with other statutory requirements under the NHPA, ESA, and state NEPAs. 

Lunch – On Your Own

Thursday Afternoon

  1. Roger Flynn

    Western Mining Action Project; Adjunct Professor, University of Colorado Law School, Boulder, CO
  2. James M. Auslander

    Principal Beveridge & Diamond, Washington, DC

Defining the Scope of NEPA Review: “Small Handles” and Connected, Cumulative, and Similar Actions

One of the first tasks in any NEPA review is defining the proposed action and whether the scope of the impact analysis and generation of alternatives must encompass connected, cumulative, or similar actions. This presentation will explore the complexities in determining the scope of NEPA review, including special attention to the “small handles” scenario, addressing recent case law developments.


    Senior Partner Beatty & Wozniak, P.C., Denver, CO

The EPA’s Role in the NEPA Process

EPA plays a unique role in the NEPA process. EPA is charged with reviewing EISs prepared by other federal agencies, and with commenting on the acceptability of the environmental impacts of the proposed action. This presentation will cover EPA’s two-pronged rating system, how EPA views are addressed by federal agencies, the CEQ referral process, and related issues.

Hosted Refreshment Break


    Partner Holland & Hart LLP, Boise, ID

    Holland & Hart LLP, Greenwood Village, CO

NEPA's Scientific and Information Standards - Taking the Harder Look

What are the NEPA requirements for using high quality information and accurate scientific analyses in NEPA documents, and how is the agencies’ treatment of these items reviewed in judicial challenges to NEPA decisions? This presentation considers the applicable NEPA standards from the CEQ regulations, guidance, and NEPA case law, including topics such as agency decision making in the face of scientific uncertainty, incomplete or insufficient information, data gaps, and conflicting scientific views. NEPA supplementation requirements will also be considered in the context of continuing developments in scientific knowledge, including climate change issues.


    Deputy Section Chief U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC

NEPA Remedies—Who Wants Some More Process? NEPA Administrative Appeals and Litigation

This presentation will address the remedies available in a NEPA case, highlighting the standard for preliminary injunctive relief, when vacatur is appropriate, supplementation requirements, decisions on remand, and continued supervision by the courts. The latest developments in administrative NEPA appeals within the processes established by federal agencies, exhaustion of administrative remedies, judicial review of agency action in U.S. District Court under the Administrative Procedure Act, intervention, standing, and ripeness will also be addressed.

Hosted Reception for Registrants, Speakers & Guests

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Friday Morning

  1. Edward A. ("Ted") Boling

    White House Council on Environmental Quality, Washington, DC
  2. Horst Greczmiel

    Former Associate Director for NEPA Oversight, Council on Environmental Quality, Washington, DC

CEQ’s Historical Efforts to Modernize and Reinvigorate NEPA

This keynote talk will provide perspective on CEQ’s efforts over the last 20 years to modernize and reinvigorate NEPA. Lessons learned from past initiatives will be explored, including reasons why some have proven successful and others have fallen flat. The most recent CEQ guidance and efforts will be addressed, along with considerations and recommendations for future CEQ initiatives and priorities.


    Assistant Professor and Co-Director Center for Law and Energy Resources in the Rockies; University of Wyoming Haub School of ENR and College of Law, Laramie, WY

    BLM Uncompahgre Field Office, Montrose, CO
  3. Tom Hale

    SWCA Environmental Consultants; University of Utah, Salt Lake City, UT
  4. Nada Wolff Culver

    Senior Counsel and Senior Director, Agency Policy and Planning BLM Action Center, The Wilderness Society, Denver, CO

Public Comments—Panel on the Public and Agency’s Perspective

What makes an effective public comment, and what is the agency process for organizing, reviewing, and responding to comments? This presentation will address the varying roles of public comment at different stages in the NEPA process (scoping, the draft EIS, and post-final EIS). The panel will attempt to answer the question of how to most effectively get the agency’s attention and affect the final decision. 

Hosted Refreshment Break


    Cox, Castle & Nicholson LLP, Los Angeles, CA

Ethical Issues That Arise When Representing Clients Before Government Agencies

Unique ethical issues can arise under the ABA Model Rules of Professional Conduct when representing clients in agency proceedings. This presentation will provide useful tips to help practitioners avoid falling into the ethical traps that can ensnare even the most seasoned lawyers.

Lunch – On Your Own

Friday Afternoon

  1. Kathleen C. Schroder

    Partner Davis Graham & Stubbs LLP, Denver, CO
  2. Tim Canon

    Attorney Ovintiv Servides Inc., Denver, CO

NEPA Mitigation - How Does NEPA's Procedural Requirement to Consider Mitigation Impact Agency Decisions?

What are NEPA's requirements for identifying and considering mitigation in environmental reviews, and how can project proponents use mitigation to streamline the NEPA process? Does the requirement to develop and consider mitigation approaches and their effectiveness actually provide "teeth" to NEPA's otherwise procedural mandate? Does the process of identifying and considering mitigation actually affect the outcome of an agency decision?


    Shareholder Modrall Sperling, Albuquerque, NM

NEPA and Climate Change

Agency consideration of climate change in NEPA documents, including the problem of climate change as a cumulative effect and the impact of President Trump’s March 28, 2017 Executive Order on Energy Independence, will be addressed. The presentation will discuss recent cases and agency decisions addressing climate change and issues of standing specific to climate change related NEPA claims.

Hosted Refreshment Break


    Modrall Sperling, Albuquerque, NM

    Western Environmental Law Center, Taos, NM

NEPA Evaluation of Cultural Resources, Tribal Values, and Environmental Justice

Exploring the requirements, nuances, and best practices for evaluating impacts to cultural resources, Native American traditional values, and environmental justice in NEPA documents, this presentation will also delve into related issues such as impacts to culturally significant plants and animals, aboriginal hunting and gathering, sacred sites, and other important cultural landscape-scale values. What is the role of the Department of the Interior’s draft Environmental Justice Strategic Plan? How does the NEPA cultural resource impact review process dovetail with the National Historic Preservation Act and government-to-government review and consultation obligations? Appropriate use of ethnographic assessments and programmatic agreements in the NEPA context to provide baseline information and explore impacts and mitigation opportunities will be discussed.


    Senior Counsel Anadarko Petroleum Corporation, Denver, CO

    Kleinfelder, Denver, CO

    U.S. Department of the Interior, Office of the Solicitor, Rocky Mountain Region, Lakewood, CO

    Stoel Rives LLP, Portland, OR

Practice Pointers and Pitfalls

From the viewpoint of seasoned practitioners who prepare or manage the preparation of NEPA documents, this presentation will focus on how the process of preparing a NEPA document actually proceeds behind the scenes, particularly for large projects with involvement by numerous federal agencies or field offices within the same agency. The speakers will also address how the public and project proponents can best participate and stay effectively engaged during all stages of the process. 

Course Adjournment