National Environmental Policy Act

National Environmental Policy Act of 1969
Great Seal of the United States
Long title National Environmental Policy Act of 1969
Acronyms (colloquial) NEPA
Enacted by the 91st United States Congress
Effective January 1, 1970
Citations
Public law Pub.L. 91–190
Statutes at Large 83 Stat. 852
Codification
Titles amended 42 (Public Health and Welfare)
U.S.C. sections created 42 U.S.C. § 4321 et seq.
Legislative history
  • Introduced in the Senate as S. 1075 by Henry M. Jackson on February 18, 1969
  • Committee consideration by Senate Committee on Interior and Insular Affairs
  • Passed the Senate on July 10, 1969 (Unanimous)
  • Passed the House of Representatives on September 23, 1969 (372-15[1])
  • Reported by the joint conference committee on December 17, 1969; agreed to by the Senate on December 20, 1969  and by the House of Representatives on December 23, 1969 
  • Signed into law by President Richard Nixon on January 1, 1970
Major amendments
Public Law 94-52, July 3, 1975, Public Law 94-83, Aug 9, 1975 and Public Law 97-258, section 4(b), Sep 13, 1982

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.[2] NEPA's importance can not be overstated. Eccleston has called it the world's equivalent of an “environmental Magna Carta”. To date, more than 100 nations around the world have enacted national environmental policies modeled after NEPA. [3]

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.[4] NEPA does not apply to the President, Congress, or the federal courts.[4][5]

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 1962 book, Silent Spring, helped to pass the Wilderness, Clean Air, and Clean Water Acts.[6] Another major driver for enacting NEPA were the 1960s highway revolts, a series of protests in many American cities that occurred in response to the bulldozing of many communities and ecosystems during the construction of the Interstate Highway System.[7]

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."[2]

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.[8]

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); and either a Finding of No Significant Impact (FONSI), or, alternatively, the preparation and drafting of an environmental impact statement (EIS).[9]

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.[10][11] If the proposed action is not included in the description provided in the CatEx, an EA must be prepared.[10][11] 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.[10][11] An agency cannot rely on a CatEx prepared by a different agency to support a decision not to prepare an EA or EIS for a planned action; however, it may draw from another agency's experience with a comparable CatEx in seeking to substantiate a CatEx of its own.[12]

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.[13]

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.[14]

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.[15]

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 all federal agencies shall "include 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 ... on the environmental impact of the proposed action", with specification of the details required for the EIS.[16]

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 Citizen's Guide to NEPA website.[17]

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".[18]

National Environmental Policy Act and environmental justice

The National Environmental Policy Act promotes environmental justice by requiring federal agencies to include communities of color and low-income communities in their NEPA-mandated environmental analyses. [19] Executive Order #12898 requires federal agencies that are complying with NEPA to consider environmental effects on human health, and economic and social effects, specifically within communities of color and low-income communities, which are disproportionately impacted by environmental detriment. [20] [21] Proposed federal actions must address "significant and adverse environmental effects" on communities of color and low-income communities. [20]

See also

References

  1. ↑ "To Pass H.R. 12549, A Bill to amend the Fish and Wildlife Coordination Act so as to provide for the establishment of a Council On Environmental Quality (Sep 23, 1969)". GovTrack. Civic Impulse, LLC. Retrieved 2017-03-27.
  2. 1 2 United States. National Environmental Policy Act of 1969. Pub.L. 91–190, Approved January 1, 1970. 42 U.S.C. § 4321 et seq.
  3. ↑ Eccleston, Charles H. (2008). NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners. CRC Press. ISBN 9780849375590.
  4. 1 2 U.S. Council on Environmental Quality (CEQ) (December 2007). A Citizen's Guide to the NEPA: Having Your Voice Heard. Washington, D.C. p. 2. Retrieved 2017-06-06 – via Office of NEPA Policy and Complicance, U.S. Department of Energy. energy.gov.
  5. ↑ CEQ. "Terminology: Federal agency." Code of Federal Regulations, 40 C.F.R. 1508.12.
  6. ↑ Griswold, Eliza (2012-09-21). "How ‘Silent Spring’ Ignited the Environmental Movement". New York Times Magazine.
  7. ↑ Mohl, Raymond A. (2004-07-01). "Stop the Road: Freeway Revolts in American Cities". Journal of Urban History. 30 (5): 674–706. doi:10.1177/0096144204265180.
  8. ↑ CEQ. 40 CFR Parts 1500 to 1508. Code of Federal Regulations.
  9. ↑ CEQ (2007), A Citizen's Guide to the NEPA, pp. 8-11.
  10. 1 2 3 "National Environmental Policy Act Review Process". U.S. Environmental Protection Agency. epa.gov. Retrieved 2017-06-06.
  11. 1 2 3 CEQ (2007), A Citizen's Guide to the NEPA, pp. 10-11.
  12. ↑ "CEQ Guidance: Memorandum for Heads of Federal Departments and Agencies: Establishing, Applying and Revising Categorical Exclusions under the National Environmental Policy Act", 23 November 2010. Section: "Benchmarking Other Agencies' Experiences", p. 9. Council on Environmental Quality. U.S. Department of Energy. ceq.doe.gov. PDF file. Retrieved 2017-06-06.
  13. ↑ Code of Federal Regulations, 40 C.F.R. 1508.9.
  14. ↑ Eccleston, Charles H. (2014). The EIS Book: Managing and Preparing Environmental Impact Statements. Chapter 6. CRC Press. ISBN 1466583630.
  15. ↑ Eccleston, Charles H. (2014). The EIS Book: Managing and Preparing Environmental Impact Statements. Chapter 4. CRC Press. ISBN 1466583630.
  16. ↑ http://www.epw.senate.gov/nepa69.pdf
  17. ↑ "Citizen's Guide to NEPA". U.S. Council on Environmental Quality. Retrieved 2017-06-08.
  18. ↑ S. 280
  19. ↑ EPA,OSWER,OAA,FFRRO, US. "EPA Insight Policy Paper: Executive Order #12898 on Environmental Justice". www.epa.gov. Retrieved 2017-04-22.
  20. 1 2 EPA,OSWER,OAA,FFRRO, US. "EPA Insight Policy Paper: Executive Order #12898 on Environmental Justice". www.epa.gov. Retrieved 2017-04-22.
  21. ↑ Bullard, Robert D. (2000). Environmental Justice and Communities of Color. San Francisco: Sierra Club Books.

Works cited

  • Sullivan, Thomas F. P. (2007). Environmental Law Handbook. Blue Ridge Summit, PA: Government Institutes/Scarecrow Press. ISBN 978-0-86587-024-6. 
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