National Environmental Policy Act - National Environmental Policy Act

The National Environmental Policy Act (NEPA) is a United States environmental law that promotes the enhancement of the environment and established the President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970. As the bill was an early step towards the development of the United States's environmental policy, NEPA is referred to as the “environmental Magna Carta”.

NEPA's most significant outcome was the requirement that all executive federal agencies prepare environmental assessments (EAs) and environmental impact statements (EISs). These reports state the potential environmental effects of proposed federal agency actions. NEPA does not apply to the President, Congress, or the federal courts.

History

NEPA grew out of the increased appreciation and concern for the environment that resulted from the 1969 Santa Barbara oil spill. During this time, environmental interest group efforts and the movement resulting from Rachel Carson's book, Silent Spring, helped to pass the Wilderness, Clean Air, and Clean Water Acts. Another major driver for enacting NEPA were the 1960s freeway revolts, a series of protests that occurred in response to the bulldozing of many communities and ecosystems during the construction of the Interstate Highway System.

Since its passage, NEPA has been applied to any major project, whether on a federal, state, or local level, that involves federal funding, work performed by the federal government, or permits issued by a federal agency. Court decisions have expanded the requirement for NEPA-related environmental studies to include actions where permits issued by a federal agency are required regardless of whether federal funds are spent to implement the action, to include actions that are entirely funded and managed by private-sector entities where a federal permit is required. This legal interpretation is based on the rationale that obtaining a permit from a federal agency requires one or more federal employees (or contractors in some instances) to process and approve a permit application, inherently resulting in federal funds being expended to support the proposed action, even if no federal funds are directly allocated to finance the particular action.

Contents

The preamble to NEPA reads:

"To declare national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality."

NEPA contains three sections: the first section outlines national environmental policies and goals; the second establishes provisions for federal agencies to enforce such policies and goals; and the third establishes the CEQ in the Executive Office of the President.

The purpose of NEPA is to ensure that environmental factors are weighted equally when compared to other factors in the decision making process undertaken by federal agencies and to establish a national environmental policy. The act also promotes the CEQ to advise the President in the preparation of an annual report on the progress of federal agencies in implementing NEPA. It also established the CEQ to advise the president on environmental policy and the state of the environment.

NEPA establishes this national environmental policy by requiring federal agencies to prepare an environmental impact statement to accompany reports and recommendations for Congressional funding. This impact statement is known as an EIS. NEPA is an action-forcing piece of legislation, meaning the act itself does not carry any criminal or civil sanctions, and therefore, all enforcement of NEPA must occur through the court system. In practice, a project is required to meet NEPA guidelines when a federal agency provides any portion of financing for the project. However, review of a project by a federal employee can be viewed as a federal action, and in such a case, it requires NEPA-compliant analysis performance.

NEPA covers a vast array of federal agency actions, but the act does not apply to state action where there is a complete absence of federal influence or funding. Exemptions and exclusions are also present within NEPA's guidelines, including specific federal projects detailed in legislation and EPA exemptions. Exemptions also apply when compliance with other environmental laws require an impact analysis similar to that mandated by NEPA. Such laws can include but are not limited to the Clean Air Act, Resource Conservation and Recovery Act, Safe Drinking Water Act, and the Federal Insecticide, Fungicide, and Rodenticide Act.

Process

The NEPA process is the evaluation of the relevant environmental effects of a federal project or action mandated by NEPA. This process begins when an agency develops a proposal addressing a need to take action. If it is determined that the proposed action is covered under NEPA, there are three levels of analysis that a federal agency must undertake to comply with the law. These three levels include the preparation of a Categorical Exclusion (CatEx), an environmental assessment (EA), a Finding of No Significant Impact (FONSI), and, finally, the preparation and drafting of an environmental impact statement (EIS).

Preparation of a Categorical Exclusion

A Categorical Exclusion (CatEx) is a list of actions an agency has determined do not individually or cumulatively affect the quality of the human environment (40 C.F.R. §1508.4). If a proposed action is included in an agency's CatEx, the agency must make sure that no extraordinary circumstances might cause the proposed action to affect the environment. Extraordinary circumstances include effects on endangered species, protected cultural sites, and wetlands. If the proposed action is not included in the description provided in the CatEx, an EA must be prepared. Actions similar to the proposed one may have been found to be environmentally neutral in previous EAs and their implementation, and so an agency may amend their implementing regulations to include the action as a CatEx. In this case, the drafted agency procedures are published in the Federal Register and a public comment period is required. A CatEx for one agency cannot be used by another agency unless this procedure has been followed.

Preparation of an Environmental Assessment and a Finding of No Significant Impact

EAs are concise public documents that include the need for a proposal, a list of alternatives, and a list of agencies and persons consulted in the proposal's drafting. The purpose of an EA is to determine the significance of the proposal's environmental outcomes and to look at alternatives of achieving the agency's objectives. An EA is supposed to provide sufficient evidence and analysis for determining whether to prepare an EIS, aid an agency's compliance with NEPA when no EIS is necessary, and it facilitates preparing an EIS when one is necessary.

Most agency procedures do not require public involvement prior to finalizing an EA document; however, agencies advise that a public comment period is considered at the draft EA stage. EAs need to be of sufficient length to ensure that the underlying decision to prepare an EIS is legitimate, but they should not attempt to substitute an EIS.

If no substantial effects on the environment are found after investigation and the drafting of an EA, the agency must produce a FONSI. This document explains why an action will not have a significant effect on the human environment and includes the EA or a summary of the EA that supports the FONSI determination.

Preparation of an Environmental Impact Statement

If it is determined that a proposed federal action does not fall within a designated CatEx or does not qualify for a FONSI, then the responsible agency must prepare an EIS. The purpose of an EIS is to help public officials make informed decisions based on the relevant environmental consequences and the alternatives available. The drafting of an EIS includes public party, outside party, and other federal agency input concerning its preparation. These groups subsequently comment on the draft EIS.

An EIS is required to describe the environmental impacts of the proposed action, any adverse environmental impacts that cannot be avoided should the proposal be implemented, the reasonable alternatives to the proposed action, the relationship between local short-term uses of man's environment along with the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that would be involved in the proposed action.

An agency may undertake the drafting of an EIS without the initial drafting of the EA. This may happen if the agency believes that the action will have a significant impact on the human or natural environment or if the action is considered an environmentally controversial issue.

The responsible decision-maker is required to review the final EIS before reaching a final decision regarding the course of action to be taken. The decision-maker must weigh the potential environmental impacts along with other pertinent considerations in reaching the final decision. A record of decision (ROD) is issued which record the agency's final decision.

Council on Environmental Quality

The Council on Environmental Quality (CEQ) was modeled after the Council of Economic Advisers, a group of advisers to the President, created by the Employment Act of 1946. Shortly after NEPA was signed into law, President Richard Nixon expanded the CEQ's mandate by executive order. He directed the CEQ to issue guidelines for the proper preparation of an EIS and to assemble and coordinate federal programs related to environmental quality. The Council was placed within the Executive Office of the President of the United States and is composed of three President-appointed members, which are subsequently confirmed by the Senate.

The CEQ has played a key part in the development of the EIS process. Its initial guidelines were issued in 1971, and required each federal department and agency to adopt its own guidelines consistent those established by CEQ. These guidelines did not carry the status of formal agency regulations, but were often held in the court of law as such. Eventually President Jimmy Carter authorized an executive order to adopt regulations rather than simple guidelines on EIS preparation. However, the CEQ had no authority to enforce its regulations.

The CEQ regulations begin by calling for agencies to integrate NEPA requirements with other planning requirements as soon as possible. This ensures that all decisions are reflective of environmental values, avoids potential delays, and eliminates potential future conflicts. NEPA's action-forcing provision, Section 102(2)(C), stipulates that an EIS shall be "included in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official..."

The CEQ has taken measures within the past several years to prepare advisory documentation explaining the general structure of NEPA and the nature of cumulative impacts, among other advisories. The CEQ maintains a website at NEPA.

Recent developments

In January 2015, Republican Senator Rob Portman, introduced the "Federal Permitting Improvement Act of 2015". The bill would establish several requirements and procedures designed to expedite the completion of NEPA-related reviews, including the creation of a "Federal Permitting Improvement Council".