National Environmental Policy Act

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For other uses of "NEPA", see NEPA (disambiguation).
National Environmental Policy Act of 1969
Great Seal of the United States.
Long title National Environmental Policy Act of 1969
Colloquial acronym(s) NEPA
Enacted by the  91st United States Congress
Effective January 1, 1969
Citations
Public Law P.L. 91-190
Stat. 83 Stat. 852 (1969)
Codification
Title(s) 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)
  • 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, Jly 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 established a U.S. national policy promoting the enhancement of the environment and also established the President's Council on Environmental Quality (CEQ). As one of the most emulated statutes in the world, NEPA has been called the modern-day equivalent of an “environmental Magna Carta”.[1]

NEPA's most significant effect was to set up procedural requirements for all federal government agencies to prepare environmental assessments (EAs) and environmental impact statements (EISs). EAs and EISs contain statements of the environmental effects of proposed federal agency actions.[2] NEPA's procedural requirements apply to all federal agencies in the executive branch. NEPA does not apply to the President, to Congress, or to the federal courts.[3]

History[edit]

NEPA came into existence following increased appreciation for the environment, and growing concerns about ecological and wildlife well-being; indeed, the public outcry after the 1969 Santa Barbara oil spill was perhaps the leading catalyst. An Eisenhower-era Outdoor Recreation report, a Wilderness Act, Clean Air and Clean Water Acts, along with Rachel Carson's book Silent Spring, all reflect the growing concerns, public interest group efforts, and legislative discussion involved.[4] Another major driver for enacting NEPA was the freeway revolts that occurred in response to the bulldozing of many communities and ecosystems around the country as the Interstate Highway System was being built during the 1960s. The law has since been applied to any major project, federal, state, or local, that involves federal funding, work performed by the federal government, or permits issued by a federal agency. Court decisions throughout the law's history have expanded the requirement for NEPA-related environmental studies to include actions where permits from a federal agency are required, regardless of whether or not federal funds are spent implementing the action. Although enacted on January 1, 1970, its "short title" is "National Environmental Policy Act of 1969".

Contents[edit]

The preamble 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..."

NEPA contains three sections:

  1. The declaration of national environmental policies and goals
  2. The establishment of action-forcing provisions for federal agencies to enforce those policies and goals
  3. The establishment of a Council on Environmental Quality (CEQ) in the Executive Office of the President

The essential 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.The act establishes the national environmental policy, including a multidisciplinary approach to considering environmental effects in federal government agency decision making. The act also established the President's Council on Environmental Quality (CEQ) to advise the president in the preparation of an annual report on the progress of federal agencies in implementing NEPA, on national policies nurture and promote the improvement of the environments quality, and on the state of the environment.[5] The effectiveness of NEPA originates in its requirement of federal agencies to prepare an environmental statement to accompany reports and recommendations for funding from Congress. This document is called an environmental impact statement (EIS). NEPA is an action-forcing piece of legislation, meaning that the act itself does not carry any criminal or civil sanctions. All enforcement of NEPA was to be obtained through the process of the court system.

A major federal action has been expanded to include most things that a federal agency could prohibit or regulate. In practice, a project is required to meet NEPA guidelines when a federal agency provides any portion of the financing for the project. Sometimes, however, review of a project by a federal employee can be viewed as a federal action and would then, therefore, require NEPA-compliant analysis be performed.

NEPA covers a vast array of federal agency actions, but not all actions are necessarily covered under NEPA. The act does not apply to purely private or purely public state action. This means that there is a complete absence of government influence or funding concerning that specific action. Exemptions and exclusions are also present within NEPA's guidelines. Exemptions from NEPA include specific federal projects detailed in legislation, EPA exemptions and functional equivalent exemptions. Functional equivalent exemptions apply where compliance with other environmental laws requires environmental analysis similar to NEPA. These other 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.

The NEPA process[edit]

The NEPA process consists of an evaluation of relevant environmental effects of a federal project or action undertaking, including a series of pertinent alternatives. The NEPA process begins when an agency develops a proposal to address a need to take an action. Once a determination of whether or not the proposed action is covered under NEPA is made, there are three levels of analysis that a federal agency may undertake to comply with the law. These three levels include: preparation of a Categorical Exclusion (CE), preparation of an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI); or preparation and drafting of an Environmental Impact Statement (EIS).

Preparation of a Categorical Exclusion[edit]

A CE is a category of actions that the agency has determined does not individually or cumulatively have a significant effect on the quality of the human environment (40 C.F.R. §1508.4). If a proposed action is included in the description provided for a listed CE established by the agency, the agency must check to make sure that no extraordinary circumstances exist that may cause the proposed action to have a significant effect in a particular situation. Extraordinary circumstances typically include such matters as effects to endangered species, protected cultural sites, and wetlands. If the proposed action is not included in the description provided in the CEAvrosse, Louie Cut

Preparation of an Environmental Assessment and Finding of No Significant Impact[edit]

The purpose of an EA is to determine the significance of the environmental effects and to look at alternative means to achieve the agency's objectives. The EA is intended to be a concise document that (1) briefly provides sufficient evidence and analysis for determining whether to prepare an EIS; (2) aids an agency's compliance with NEPA when no environmental impact statement is necessary; and (3) facilitates preparation of an Environmental Impact Statement when one is necessary(40 C.F.R. § 1508.9). If after investigation and drafting of the environmental assessment no substantial effects on the environment are found the agency may produce a Finding of No Significant Impact (FONSI).

Preparation of an Environmental Impact Statement[edit]

The EIS is a more detailed evaluation of the environmental impacts when compared to the content of the environmental assessment. The crafting of EIS has many components including public, outside party and other federal agency input concerning the preparation of the EIS. These groups subsequently comment on the draft EIS.

In some circumstance an agency may wish to undertake the construction of an EIS without the initial drafting of the environmental assessment. This will take place under circumstances in which the agency believes that the action will undoubtedly have a significant impact on the human or natural environment or is considered an environmentally controversial issue.

Categorical Exclusion[edit]

A categorical exclusion (CE) is based on an agency's experience with a particular kind of action and its environmental effects. The agency may have studied the action in previous EAs, found no significant impact on the environment based on the analyses, and validated the lack of significant impacts after the implementation. If this is the type of action that will be repeated over time, the agency may decide to amend their implementing regulations to include the action as a CE. In these cases, the draft agency procedures are published in the Federal Register, and a public comment period is required. Participation in these comment periods is an important way to be involved in the development of a particular CE. A CE for one agency cannot be used by a different agency unless that agency has followed this procedure.

Environmental assessment[edit]

An environmental impact assessment is a screening document used to determine if an agency will need to prepare either an EIS or construct a FONSI. EAs are concise public documents that include: a brief discussion of the need for the proposal; a listing of alternatives and a listing of agencies and persons consulted.

Most agency procedures do not require public involvement prior to finalizing an EA document. Agencies advise that facilitating public comment be considered at the draft EA stage.

EAs need to be of sufficient length to ensure that the underlying decision about whether to prepare an EIS is legitimate, but should not attempt to be a substitute for an EIS.

Finding of No Significant Impact[edit]

A Finding of No Significant Impact (FONSI) presents the reasons why an action will not have a significant effect on the human environment. It must include the EA or summary of the EA that supports the FONSI determination.

Environmental impact statement[edit]

If it is determined that a proposed federal action does not fall within a designated categorical exclusion or does not qualify for a FONSI, then the responsible agency or agencies must prepare an environmental impact statement (EIS). The purpose of an EIS is to ultimately help public officials make informed decisions that are a reflection of an understanding of environmental consequences and the alternatives available.

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 and the maintenance and enhancement of long-term productivity; and
  • Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.

Council on Environmental Quality (CEQ)[edit]

The Council on Environmental Quality (CEQ) was modeled after the Council of Economic Advisers, created by the Employment Act of 1946. Shortly after the act was signed into law, President Richard Nixon expanded the CEQ's mandate by Executive Order directing it to issue guidelines to federal agencies for the proper preparation of environmental impact statements and to assemble and coordinate federal programs related to environmental quality. The Council was placed within the executive office of the President and is composed of three members. These members must be appointed by the president and subsequently confirmed by the Senate. The CEQ has some fundamental roles which include assisting and advising the President in the preparation of the annual environmental quality report on the present progress of federal agencies in implementing the act, on national policies to nurture and promote the improvement of environmental quality and on the current state of the environment.

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

The CEQ regulations begin by calling for agencies to integrate NEPA regulations and requirements with other various planning requirements at the earliest possible time to ensure that all decisions are reflective of environmental values, avoid potential delays in the future and eliminate 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..."

The CEQ has taken strides within the past several years to prepare advisory documentation to explain the general structure of the environmental document, the nature of cumulative impacts and other advisories. The CEQ also maintains a website with NEPA information and guidance at www.nepa.gov.

See also[edit]

References[edit]

  1. ^ NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners, CRC Press (2008).
  2. ^ U.S. Council on Environmental Quality (CEQ) (December 2007). A Citizen's Guide to the NEPA: Having Your Voice Heard. Washington, D.C. pp. 2–7. Retrieved 2008-10-11. 
  3. ^ CEQ. 40 CFR Section 1508.12: Terminology: Federal agency. Code of Federal Regulations.
  4. ^ NEPA, 42 U.S.C. § 4321.
  5. ^ CEQ. 40 CFR Parts 1500 to 1508. Code of Federal Regulations.
  • Sullivan, Thomas F. P. (2007). Environmental Law Handbook. Blue Ridge Summit, PA: Government Institutes/Scarecrow Press. ISBN 978-0-86587-024-6. 

External links[edit]