National Environmental Policy Act
||This article may require copy editing for redundancy, style. (March 2014)|
|Long title||National Environmental Policy Act of 1969|
|Enacted by||the 91st United States Congress|
|Effective||January 1, 1970|
|Public Law||P.L. 91-190|
|Statutes at Large||83 Stat. 852 (1969)|
|Titles amended||42 (Public Health and Welfare)|
|U.S.C. sections created||42 U.S.C. § 4321 et seq.|
|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 established a U.S. national policy promoting the enhancement of the environment. Additionally, it established the President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970. Its short title is the National Environmental Policy Act of 1969. NEPA is one of the most emulated statutes in the world and it is often referred to as the modern-day “environmental Magna Carta”.
NEPA's most significant accomplishment was setting up procedural requirements for all federal government agencies to prepare environmental assessments (EAs) and environmental impact statements (EISs). EAs and EISs contain statements about the environmental effects of proposed federal agency actions. NEPA's procedural requirements apply to all federal agencies in the executive branch. NEPA does not apply to the President, Congress, or the federal courts.
NEPA grew out of increased appreciation for the environment and concerns for ecological well being. The public outcry after the 1969 Santa Barbara oil spill was a leading catalyst for the law’s creation. Public interest group efforts reflecting growing environmental concerns following the disaster are identified in The Wilderness, Clean Air and Clean Water Acts, along with Rachel Carson's book Silent Spring. 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 during the Interstate Highway System construction in 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 issued by a federal agency are required regardless of whether federal funds are spent to implement the action. This legal interpretation is based on the rationale that obtaining a permit from a federal agency inherently results in federal funds being expended by the federal agency to process and issue the permit, even if no federal funds are directly allocated to finance the particular action.
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; and to establish a Council on Environmental Quality."
NEPA contains three sections:
- The declaration of national environmental policies and goals
- The establishment of provisions for federal agencies to enforce policies and goals
- The establishment of 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. The act establishes the national environmental policy, including a multidisciplinary approach to considering environmental effects in federal government agency decision-making. 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. More specifically, the CEQ advises the president on national policy promotion of environmental quality improvement and the state of the environment.
The effectiveness of NEPA originates in its requirement for federal agencies to prepare an environmental statement to accompany reports and recommendations for Congressional funding. This 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. All enforcement of NEPA must be obtained through the process of 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 this case, it then requires NEPA-compliant analysis performance.
NEPA covers a vast array of federal agency actions, but the act does not apply to purely private or public state action: There is a complete absence of government influence or funding. Exemptions and exclusions are also present within NEPA's guidelines. Exemptions from NEPA include specific federal projects detailed in legislation, Environmental Protection Agency (EPA) exemptions, and functional equivalent exemptions. Functional equivalent exemptions apply when compliance with other environmental law requires environmental analysis similar to NEPA. The 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
The NEPA process is an evaluation of the relevant environmental effects of a federal project or action, including a series of alternatives. The NEPA process begins when an agency develops a proposal addressing a need to take action. Once it is determined whether 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 EA and a Finding of No Significant Impact (FONSI), and, finally, the preparation and drafting of an EIS.
Preparation of a Categorical Exclusion
A CatEx is a category of actions the agency has determined does not individually or cumulatively affect 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 CatEx established by the agency, the agency must check to make sure no extraordinary circumstances exist that may cause the proposed action to affect a particular situation. 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. The agency that determines the CatEx 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 it is a type of action that will be repeated over time, the agency may decide to amend their implementing regulations to include the action as a CatEx. In this case, the draft agency procedures are published in the Federal Register and a public comment period is required. Participation in a comment period is an important way to be involved in the development of a particular CatEx. A CatEx for one agency cannot be used by a different agency unless the agency has followed this procedure.
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. The purpose of an EA is to determine the significance of 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. Provides sufficient evidence and analysis for determining whether to prepare an EIS;
2. Aids an agency's compliance with NEPA when no EIS is necessary; and
3. Facilitates preparation of an EIS when one is necessary (40 C.F.R. § 1508.9).
Most agency procedures do not require public involvement prior to finalizing an EA document. Agencies advise facilitating public comment to be 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 drafting of an EA, the agency must produce a FONSI. A 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.
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 or agencies must prepare an EIS. The purpose of an EIS is to help public officials make informed decisions that are reflections of environmental consequences and the alternatives available. The crafting of an EIS has many components including public party, outside party, and other federal agency input concerning the preparation of the EIS. 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 construction 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.
Council on Environmental Quality
The 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. He directed the CEQ to issue guidelines to federal agencies 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 and is composed of three members. These members must be appointed by the president and 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 department and agency of the government to adopt its own guidelines consistent with the guidelines 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 at the earliest time. 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 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.
- Environmental impact assessment
- Environmental impact report
- Environmental impact statement
- Environmental policy of the United States
- NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners, CRC Press (2008).
- U.S. Council on Environmental Quality (CEQ) (December 2007). A Citizen's Guide to the NEPA: Having Your Voice Heard (PDF). Washington, D.C. pp. 2–7. Retrieved 2015-04-05.
- CEQ. 40 CFR Section 1508.12: Terminology: Federal agency. Code of Federal Regulations.
- CEQ. 40 CFR Parts 1500 to 1508. Code of Federal Regulations.
5. ^NEPA, 42 U.S.C. § 4321.
- Works related to National Environmental Policy Act at Wikisource
- Council on Environmental Quality - NEPAnet resource page
- U.S. Department of Energy - Office of NEPA Policy and Compliance
- U.S. Federal Highway Administration - NEPA Documentation
- Article on NEPA at HistoryLink
- National Environmental Policy Act - Full text