National Environmental Policy Act (NEPA)

Overview of
the National Environmental Policy Act

Recent Blog Posts Concerning NEPA:

  1. “CEQ’s Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions,” posted February 19, 2010.
  2. “Greenhouse Gases Should Be Considered in All EISs and EAs,” posted January 4, 2010.
  1. INTRODUCTION
    1. Background
      1. The National Environmental Policy Act of 1969 (“NEPA” or the “Act”) was the first major federal environmental law enacted in the United States. While primarily a policy statute that imposes relatively few substantive requirements, the effects of NEPA have been far-reaching. Its passage helped stimulate citizen involvement in environmental matters, spurred the passage of more well-known federal environmental statutes, and opened the door for much of the environmental litigation that has become characteristic of the environmental arena in the United States today.
      2. NEPA is largely a procedural statute that imposes few of the pollution control requirements found in the environmental statutes many people are more familiar with, such as the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act. Instead, NEPA mandates that federal government agencies consider the environmental effects of major federal actions. The idea behind NEPA is that by requiring federal agencies to gather information about the environmental consequences of proposed actions and consider the environmental impacts of those actions, the agencies will make wiser environmental decisions.
    2. Purpose And Scope
      1. NEPA established a national policy for the protection of the environment by requiring consideration of environmental factors in federal decision making and increasing the availability of information to public citizens. Section 2 of NEPA states that its purposes are:

        To declare a 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.1/ NEPA 2, 42 U.S.C. 4321.

      2. The Act also presents a “Declaration of National Environmental Policy” that states:

        The Congress . . . declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.2/ NEPA 101(a), 42 U.S.C. 4331(a).

      3. Finally, NEPA provides an environmental mandate outlining the “continuing responsibility of the Federal Government” to:

        use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may–

        (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

        (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

        (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

        (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

        (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

        (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.3/ NEPA 101(b), 42 U.S.C. 4331(b).

      4. Given the breadth of the issues addressed in the declarations of purpose and policy, it is clear that all environmental issues, from air pollution to wetlands protection and beyond, fall within the purview of NEPA. Therefore, while the letter of the law contains few substantive requirements, the spirit of the law reaches and affects many areas. As a result, the fact that NEPA does not directly impose substantive requirements should not be interpreted to mean that the Act is without impact or importance.
    3. Major Provisions
      1. In addition to the purposes and policies addressed above, NEPA contains two major provisions that have operational effect. First, NEPA created the Council on Environmental Quality (“CEQ”) within the Executive Office of the President.4/ NEPA 202, 42 U.S.C. 4342. As discussed in more detail below, CEQ advises the President on environmental issues, implements regulations, coordinates federal agencies’ compliance with NEPA, and prepares an annual report on the state of environmental conditions in the United States.
      2. The second major provision, arguably the most important provision of NEPA, is 102(2)(C), which requires that federal agencies include in “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official.” NEPA 102(2)(C), 42 U.S.C. 4332(2)(C). This “detailed statement” is now commonly referred to as an environmental impact statement (“EIS”). An EIS must describe the proposed action, discuss the environmental impact of the action, and analyze alternatives to that action. EISs therefore provide agencies, and the public, with important information regarding the environmental impacts of proposed federal action. The EIS requirement has been called the “action-forcing” provision of NEPA because it “forces” agencies to consider the environmental consequences of their actions. 40 C.F.R. 1502.1. As a result, EISs are the source of considerable controversy and have created the majority of NEPA-related litigation. A more detailed discussion of EISs is presented below.
  2. THE COUNCIL ON ENVIRONMENTAL QUALITY
    1. Subchapter II of NEPA creates the Council on Environmental Quality (“CEQ” or the “Council”) and provides for its powers and duties. NEPA 201-209, 42 U.S.C. 4341-4347. The Council is composed of three members appointed for indefinite terms by the President with the advice and consent of the Senate. NEPA 202, 42 U.S.C. 4342. Each member must be qualified to analyze and interpret environmental trends and information, to appraise federal programs’ compliance with NEPA, and to recommend national environmental policies. Id.
    2. Duties and Functions
      1. CEQ’s duties are dictated by the Act itself and by executive order of the president. NEPA lists eight specific “duties and functions” of the Council:
        1. assist and advise the President in the preparation of an annual Environmental Quality Report;
        2. gather, analyze, and interpret information concerning environmental conditions and trends;
        3. review and report on programs and activities of the federal government;
        4. develop and recommend national environmental policies;
        5. conduct investigations relating to ecological systems and environmental quality;
        6. document, define, and interpret changes in the environment;
        7. report annually to the President on the state and condition of the environment; and
        8. prepare and furnish studies, reports, and recommendations at the President’s request.NEPA 204, 42 U.S.C. 4344.
      2. While some lawmakers envisioned a powerful and vocal CEQ actively pursuing better environmental policies, the Council has never played a major role in shaping environmental policy. Instead, CEQ has taken a more reactive position and concentrated on its advisory duties, including reporting to the President and providing agencies with guidance for compliance with the Act. CEQ’s more proactive duties (such as research, analysis, and formulation of recommendations) have suffered from a lack of adequate funding and technical staffing, especially in recent years. What little analytical work remains is now usually contracted to outside firms.
      3. One duty that CEQ has embraced is coordination of federal agency compliance with NEPA.
        1. Although the job of coordinator was not specifically given to CEQ, it has acquired the role through the adoption of regulations governing the content and preparation of EISs and through its review of certain EISs.
        2. As the unofficial coordinator, CEQ guides and assists federal agencies in their preparation of environmental assessments (“EAs”) and EISs.
        3. CEQ also possesses authority to review and comment on EISs. NEPA 102(2)(C), 42 U.S.C. 4332(2)(C).
        4. However, due to the large number of EISs prepared each year and the scarcity of staff resources at CEQ, CEQ has not undertaken any systematic review of EISs.
        5. Instead, CEQ has chosen to review EISs under two circumstances: when the proposed action is of national significance and when the proposed action has generated a disagreement between federal agencies over its environmental impact.
    3. Regulations
      1. In addition to the duties specifically listed in the Act, CEQ has been assigned the task of creating regulations under NEPA.
      2. While Congress did not provide the Council with regulatory authority, it was granted such authority through two executive orders.
      3. In 1970, President Nixon issued an executive order providing CEQ with authority to issue “guidelines” for the preparation of EISs. Exec. Order No. 11514, 35 Fed. Reg. 4247 (March 5, 1970).
      4. In 1977, President Carter amended the executive order to grant CEQ authority to issue actual regulations. Exec. Order No. 11991, 42 Fed. Reg. 26967 (May 24, 1977).
      5. CEQ therefore adopted detailed regulations providing agencies with guidance on how to implement NEPA, outlining when an agency must prepare an EIS, and detailing the steps to be followed in the actual preparation of the document. See, 43 Fed. Reg. 55990 (Nov. 28, 1978) (codified at 40 C.F.R. 1500-1517.7).
      6. The regulations also provide guidance regarding the necessary scope and content of EISs.
    4. Predecision Referrals
      1. Interagency disputes over the environmental impacts of proposed major federal actions may be “referred” to CEQ.
      2. While “predecision referrals” are not authorized in NEPA, such authority is derived from the Act’s mandate that the Council oversee and coordinate major federal programs and actions. NEPA 204(3), 42 U.S.C. 4344(3).
      3. CEQ often attempts to resolve interagency disputes through mediation, sometimes undertaking its own independent fact-finding efforts.
      4. While CEQ’s findings and recommendations carry great weight, they are not legally binding on parties to a dispute.
      5. However, even though CEQ does not have the authority to override or amend agency decisions, it can and does focus attention on environmental issues.
    5. Referrals can be made to CEQ in one of two ways.
      1. First, under 1504 of the CEQ regulations, any federal agency or department may refer a proposed major federal action to CEQ within twenty-five days after a final EIS has been made available to the Environmental Protection Agency (“EPA”), to commenting agencies, and to the public. 40 C.F.R. 1504.
      2. A second referral route is provided by 309 of the Clean Air Act. 42 U.S.C. 7609. Under 309, the EPA administrator may refer to the CEQ any proposed major federal action which he or she deems to be environmentally unsatisfactory.
    6. The referral process, however, is seldom used by the federal agencies. Several reasons may explain the small number of referrals.
      1. First, CEQ has consistently discouraged the referral of interagency environmental disputes that lack “national importance.”
      2. The CEQ regulations state that national importance is one of the basic criteria for determining the propriety of CEQ intervention. 40 C.F.R. 1504.3(c)(2)(iv) and 1504.3(f)(4)).
      3. The explanation for this limitation on CEQ’s jurisdiction appears to be CEQ’s limited resources and the fact that CEQ’s role is to assess major environmental concerns rather than to pass judgment on highly politicized or purely local impacts of federal actions.
      4. Another, and perhaps more important, reason that agencies do not refer disputes to CEQ is that the mere existence of the referral process, and the threat of delay inherent in its use, prompt agencies to seek early and informed resolutions of environmental disputes.
      5. In short, the existence of the referral process may compel federal agencies to consider the environmental effects of their actions, to make accommodations in the face of objections from other agencies, and to adopt less environmentally intrusive actions.

    ENVIRONMENTAL IMPACT STATEMENTS

    1. Federal agencies are required to prepare environmental impact statements (“EISs”) for “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” NEPA 102(2)(C), 42 U.S.C. 4332(2)(C). The EIS requirement has become the best known feature of NEPA.
    2. EIS Procedures
      1. The EIS requirement promotes compliance with NEPA’s policies and encourages wise environmental decision making. 40 C.F.R. 1502.1.
      2. The CEQ regulations caution that “it is not better documents but better decisions that count.” 40 C.F.R. 1500.1(c).
      3. In addition, the regulations reiterate that “NEPA’s purpose is not to generate paperwork–even excellent paperwork–but to foster excellent action.” Id.
      4. Following and fulfilling all of the EIS procedures is the best means for carrying out that purpose and EISs should be prepared and analyzed with that purpose in mind.
    3. Environmental Assessments and Findings of No Significant Impact
      1. The first question posed by 102(2)(C) of NEPA is whether a proposed action requires an EIS. In some instances, the answer will be clear.
      2. The regulations provide that agencies can adopt “categorical exclusions” for actions which never have a significant effect, either individually or cumulatively, on the human environment. 40 C.F.R. 1507.3(b)(2)(ii) and 1508.4.
      3. In addition, most actions of the EPA are exempt. Actions under both the Clean Air Act and the Clean Water Act, except for NPDES permits and providing grants to municipal wastewater treatment systems, have been statutorily exempted.
      4. In addition, courts have generally upheld EPA’s decision not to prepare an EIS when it has prepared the “functional equivalent” of an EIS. On the opposite end of the spectrum, certain actions will clearly require an EIS. 40 C.F.R. 1507.3(b)(2)(i).
      5. It is the middle ground, the instances where the agency has not determined in advance whether or not to prepare an EIS, that creates the most controversy. In those instances, agencies prepare an environmental assessment (“EA”). 40 C.F.R. 1501.4(b) and 1508.9.
      6. An EA is a “concise public document” containing “sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. 1508.9.
      7. An EA should include a discussion of the need for the proposed action, information regarding the environmental impact of the action, a limited discussion of alternatives to the action, and a list of agencies and persons consulted in preparing the document. 40 C.F.R. 1508.9(b).
      8. After an EA is prepared, the agency will either make a finding of no significant impact (“FONSI”) or decide that an EIS must be prepared. 40 C.F.R. 1501.4(c) – (e).
      9. If the agency determines that the proposed action will not have a significant impact on the human environment, it will prepare a FONSI. 40 C.F.R. 1501.4(e).
    4. Lead and Cooperating Agencies

      1. Often, more than one federal agency is involved in the proposed action and, therefore, must take part in the EIS process. In such instances, the CEQ regulations require the designation of a “lead agency” to supervise the process and take primary responsibility for preparation of the EIS. 40 C.F.R. 1501.5 and 1508.16.
      2. Other agencies involved in the process become “cooperating agencies” and participate in the preparation of the EIS upon the request of the lead agency. 40 C.F.R. 1501.6 and 1508.5.
      3. The CEQ regulations provide that the purpose of dividing agency responsibilities among lead and cooperating agencies is to “emphasize agency cooperation early in the NEPA process.” 40 C.F.R. 1501.6.
      4. In that way, the regulations ensure that the concerns of all relevant agencies are addressed, avoid duplicative agency action, and guard against unnecessary delay in the preparation of a final EIS.
    5. Scoping and Tiering
      1. Once it is determined that an EIS is required, the agency begins a process called “scoping” to determine the scope of issues to be addressed in the EIS and to identify the significant environmental issues raised by the proposed action. 40 C.F.R. 1501.7.
      2. Scoping requires agencies to consider three types of actions (connected, cumulative, and similar), three types of alternatives (no action, other reasonable courses of action, and mitigation measures), and three types of impacts (direct, indirect, and cumulative). 40 C.F.R. 1508.25.
      3. In addition to identifying the significant issues to be analyzed, scoping is intended to “identify and eliminate issues which are not significant or which have been covered by prior environmental review.” 40 C.F.R. 1501.7(a)(3).
      4. With these goals in mind, agencies may set page and time limits and may hold early planning meetings during the scoping process. 40 C.F.R. 1501.7(b).
      5. Even after completion of the initial scoping process and preparation of the EIS beings, the proper scope of the EIS remains an issue. This is because proposed actions often involve a series of smaller, related actions. If the actions are addressed in separate EISs, the cumulative environmental effect might never be considered. Therefore, if the actions are closely related, have no independent utility, or if the actions have cumulative impacts, it is likely that the scope of a single EIS should include all of the actions. 40 C.F.R. 1508.25.
      6. In certain circumstances, agencies can employ “tiering” methods to address different stages of EISs covering broad actions. By “tiering,” agencies can “eliminate repetitive discussions of the same issues and…focus on the actual issues ripe for decision at each level of environmental review.” 40 C.F.R. 1502.20.
      7. Thus, an agency may prepare a broad EIS addressing an overall project and its cumulative effects and then prepare, as necessary, site specific EISs in response to smaller components of the larger action. Site specific EISs incorporate by reference the overall discussions in the broad EIS and concentrate on issues specific to the smaller component. 40 C.F.R. 1508.28.
    6. Preparation of EISs

      1. An EIS should be prepared early in the development of a proposed action so that subsequent delay is avoided and the EIS can contribute to the decision making process. 40 C.F.R. 1501.2, 1502.5.
      2. In that way, an EIS is more likely to serve its intended purpose of “assessing the environmental impact of proposed agency actions, rather than justifying decisions already made.” 40 C.F.R. 1502.2(g).
      3. Often, the question of exactly when within a decision making process an EIS becomes necessary is not clear. Generally, a definite and concrete proposed action must be evident. If an agency is still considering and formulating various proposals, it is most likely too early for an EIS. As a result, any challenges to the lack of an EIS may not yet be ripe. See, e.g., Klepper v. Sierra Club, 427 U.S. 390 (1976) (stating that Department of Interior was not required to issue an EIS on a possible proposal but need only prepare the EIS when it actually was ready to propose a definite action).
      4. As a general role, however, it is better to prepare an EIS earlier in the process rather than later.
      5. An EIS is prepared in two stages — draft and final — and may be supplemented as necessary. 40 C.F.R. 1502.9.
      6. For the most part, a draft EIS should fulfill the requirements of a final EIS. 40 C.F.R. 1502.9(a).
      7. The lead agency prepares the draft in conjunction with any cooperating agencies and must consult with, and obtain comments from, other federal agencies that have jurisdiction over the proposed action, that possess expertise regarding the environmental impact, or that have authority to develop and enforce environmental standards. 40 C.F.R. 1503.1(a)(1).
      8. Under 40 C.F.R. 1503.2, such agencies have a duty to provide comments. In addition, the lead agency must request comments from other federal, state, and local agencies, affected Indian tribes, the applicant (if any), and the public. 40 C.F.R. 1503.1(a)(2).
      9. Any comments on the draft become part of the administrative record. 40 C.F.R. 1503.4(c) and 1506.9.
      10. In addition, the regulations require agencies to respond to public comments. Agencies must explain their positions, in writing, in one of five ways: (1) modify the proposed course of action; (2) make factual corrections; (3) supplement, improve or modify its analyses; (4) develop and evaluate new alternatives; or (5) explain why a comment does not warrant further response. 40 C.F.R. 1503.4.
      11. A final EIS should discuss how decisions based on it will achieve the policies of NEPA. 40 C.F.R. 1502.2(d).
      12. In doing so, it should respond to comments and issues raised in response to the draft. 40 C.F.R. 1502.9(b).
      13. A supplement to a final EIS is required only if the agency makes substantial changes in the proposed action or if significant new circumstances or information arise. 40 C.F.R. 1502.9(c).
      14. No agency action can be taken within thirty days after the filing of a final EIS. 40 C.F.R. 1506.10(b)(2)
      15. In addition, a public record of decision must be prepared whenever an agency makes a final decision after an EIS has been prepared. 40 C.F.R. 1505.2.
      16. The record of decision must discuss all alternatives considered, identify the environmentally preferred alternative, discuss all factors leading to the chosen alternative, and state whether or why not means to avoid or minimize the environmental effects of the chosen alternative were adopted. 40 C.F.R. 1505.2.
      17. No action can be taken until the issuance of the record of decision. 40 C.F.R. 1506.1.
    7. Content
      1. An EIS is intended to “provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. 1502.1. At the same time, an EIS should be concise and analytical and “no longer than absolutely necessary.” 40 C.F.R. 1502.2. The text of final EISs is limited to 150 pages unless the proposed action is of unusual scope or complexity. 40 C.F.R. 1502.7.
      2. With these goals in mind, the CEQ regulations provide a recommended format for EISs that “should be followed unless the agency determines that there is a compelling reason to do otherwise.” 40 C.F.R. 1502.10. The recommended format includes: a cover sheet; a summary (not to exceed 15 pages) which stresses major conclusions, areas of controversy, and issues to be resolved; a statement of the purpose of and need for the proposed action; a comparative analysis of the alternatives; a description of the environmental area(s) to be affected; an analysis of the environmental consequences of the proposed action; a list of preparers; and an appendix, if necessary. 40 C.F.R. 1502.10-1502.18.
      3. In addition, the regulations provide several measures by which agencies can streamline and simplify EISs. First, agencies can incorporate by reference reasonably available material if such incorporation does not impede review of the proposed action. 40 C.F.R. 1502.21. Second, agencies can adopt a prior EIS, or a portion thereof, in lieu of repeating the earlier EIS in a new document. 40 C.F.R. 1506.3. Finally, agencies are authorized to cooperate with state agencies to prevent duplication of state environmental procedures. 40 C.F.R. 1506.2.
      4. The analyses of available alternatives to and possible consequences of the proposed action are the most important sections in an EIS. The CEQ regulations label the discussion of alternatives the “heart of the environmental impact statement.” 40 C.F.R. 1502.14. In addition, the discussion of alternatives is a statutorily imposed requirement of an EIS. NEPA 102(2)(C)(iii) and 102(2)(E), 42 U.S.C. 4342(2)(C)(iii) and 4342(2)(E). Under the regulations, only “reasonable” alternatives must be discussed; however, “reasonable” includes alternatives not within the jurisdiction of the lead agency, the alternative of no action, and alternatives employing appropriate mitigation measures. 40 C.F.R. 1502.14. It should be noted that while the CEQ regulations identify “no action” as a reasonable alternative, courts have generally not required an EIS for agency inaction, even if an agency’s inaction is reviewable under the Administrative Procedure Act. See e.g., Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980) (holding that no EIS was required for the Department of Interior’s decision not to stop a wolf kill planned by the State of Alaska). Alternatives employing remote or speculative technologies need not be discussed. NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972). In addition, the United States Supreme Court has held that it is not necessary to analyze every conceivable alternative. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). In both the draft (if possible) and final EIS, the agency must identify its preferred alternative. 40 C.F.R. 1502.14(e).
      5. The section on environmental consequences, which provides the scientific and analytic bases for the alternatives discussed, should not merely rehash the section on alternatives. Rather, it should analyze direct and indirect effects of each alternative, possible conflicts with other land use plans or policies, and the resource requirements and conservation potential of each alternative. 40 C.F.R. 1502.16. In addition, consequences addressed should include the effects on urban quality and historic and cultural resources, including the reuse and conservation potential. 40 C.F.R. 1502.16(g). Finally, any mitigation measures not discussed in the alternatives section should be addressed. Id.
      6. On occasion, information important to an EIS will be incomplete or unavailable. In such situations, the agency is required to disclose that important information is lacking. 40 C.F.R. 1502.22. If the information “is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant,” the agency must obtain the information and include it within the EIS. 40 C.F.R. 1502.22(a). If the essential information cannot be obtained because of exorbitant costs or the means of obtaining it are not known, the EIS must include a statement to that effect and must explain the relevance of the missing information. 40 C.F.R. 1502.22(b).
      7. At one time, the CEQ regulations required a “worst case analysis” identifying the environmental consequences of the worst possible outcome whenever essential information was unknown or incomplete. The regulations now require consideration of only “reasonably foreseeable” impacts. “Reasonably foreseeable significant adverse impacts include impacts with catastrophic consequences only if the probability of occurrence is not based on pure conjecture and is within the role of reason.” 40 C.F.R. 1502.22(b).
  3. WHEN AN ENVIRONMENTAL IMPACT STATEMENT MUST BE PREPARED
    1. NEPA requires that an EIS be prepared for “proposals for legislation and major federal action significantly affecting the quality of the human environment.” NEPA 102(2)(C), 42 U.S.C. 4332(2)(C).
      1. The first decision an agency faces under NEPA, therefore, is whether a proposed action meets this threshold requirement. An agency’s initial determination as to whether an EIS is required is often difficult to reach and can result in considerable controversy.
      2. As a result, this requirement has been the source of much analysis and litigation. Because the Act itself does not provide any guidance, the CEQ regulations analyze the requirement at length.
    2. “Federal” Actions
      1. Only “federal” actions are subject to the EIS requirement. Therefore, private, state or local activities do not require EISs. However, determining whether an action is “federal” is not always straightforward. Clearly, actions by federal agencies require an EIS.
      2. But what about private party actions involving the federal government? If federal government involvement is sufficient, such an action may require an EIS. For instance, if a private party action requires federal authorization or a federal permit, the action may require an EIS.
      3. The same applies to private, state, or local actions funded in major part by the federal government. Federal government involvement must be analyzed on a case-by-case basis to determine whether an action significantly affecting the human environment is subject to NEPA’s EIS requirement.
    3. “Significantly Affecting”

      1. Major federal actions significantly affecting the human environment are those “with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. 1508.18.
      2. The CEQ regulations state that “major reinforces but does not have a meaning independent of significantly.” Id. Under the CEQ regulations, “significantly” requires consideration of both the context of the action and the intensity of its impact. 40 C.F.R. 1508.27.
      3. The context of the action — society as a whole, the affected region, the affected interests, and the affected locality — is analyzed on a fact specific basis.
      4. The “intensity” of the action refers to the severity of impact.
      5. The CEQ regulations lists ten factors that should be considered in evaluating intensity: (1) beneficial and adverse impacts; (2) affect on public health and safety; (3) unique characteristics of the geographic area; (4) degree of controversy involved; (5) existence of uncertain, unique or unknown risks; (6) future considerations or precedent setting effects; (7) relation to other actions with cumulatively significant impacts; (8) degree of adverse affects on or losses to area resources; (9) endangered or threatened species and its habitat; and (10) threats to environmental protection laws or requirements. 40 C.F.R. 1508.27.
    4. “Human” Environment

      1. A source of some controversy has been the requirement that the action affect the “human environment”. Technically, an EIS is required only if there is an impact on the physical environment; social or economic effects need not be considered.
      2. In fact, the CEQ regulations state that the human environment includes the “natural and physical environment and the relationship of people with that environment” but that “economic or social effects are not intended by themselves to require preparation of an environmental impact statement.” 40 C.F.R. 1508.14 (emphasis added).
      3. However, the regulations continue by stating that when “economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.” 40 C.F.R. 1508.14.
      4. Therefore, social or economic impacts must be incorporated into an EIS if they are interrelated with impacts on the human environment.
      5. Section 101(a) of NEPA provides that the Act is intended to “maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans.” NEPA 101(a), 42 U.S.C. 4331(a).
      6. In addition, 102 (2)(B) instructs the federal government to “identify and develop methods and procedures, in consultation with the Council on Environmental Quality . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical consideration.” NEPA 102(2)(B), 42 U.S.C. 4332(2)(B).
      7. Thus, while “nonphysical” impacts standing by themselves do not fall within the EIS requirement, they must be taken into account in many EISs.
  4. IMPACTS ON INDUSTRY
    1. The EIS requirement has had a direct effect on industrial development.
      1. To the extent that industry action requires a federal permit or authorization, that action might require an EIS. Therefore, not only can NEPA’s EIS requirement cause industry to take environmental issues into account, it can present substantial additional work and cause delays in the progress of proposed actions.
      2. The EIS requirement has also created grounds for people to challenge proposed actions. A final EIS, or the lack thereof, is subject to judicial review under 28 U.S. C. 1331.
      3. As a result, the need for or adequacy of an EIS has been the source of much litigation. In some circumstances, environmental groups use the EIS requirement to block projects which they believe are a threat to the environment.
      4. Generally, courts will review EISs only for compliance with NEPA and will not role on whether agency decisions violate NEPA. The standard judicial remedy is imposition of an injunction against the proposed action until the agency has prepared an EIS in compliance with NEPA.
    2. Industries Upon Which NEPA Has Had A Direct Effect

      1. Highway Construction
        Highway construction often involves major federal involvement in projects with significant impact on the environment. For example, the proposed location of the final segment of an urban highway that adversely affects a national historic landmark might be considered a major project because it forms part of a major highway route. In Thompson v. Fugate, 347 F. Supp. 120 (D. Va. 1972), the court held that an entire highway system had to be considered and that the portion involved in the litigation could not be viewed in isolation. The entity building the highway argued that the portion in question was not financed with federal money. The court, noting that the major portion of the project was funded with federal money, viewed the attempted segmentation of the project as a blatant attempt to circumvent federal requirements.
      2. Power Plants
        The construction of power plants requiring a federal license and the construction of transmission lines have generally been held to constitute major federal action with significant environmental impact. As a result an EIS has been required. Even relatively minor power projects have involved, in the courts’ opinion, major federal action. In Investment Syndicates, Inc. v. Richmond, 318 F.Supp. 1038 (D.Ore. 1970), the federal appropriation of funds for a transmission line that would run alongside an existing power transmission line for 52 miles was held to constitute major federal action.
      3. Public Waterworks Projects

        1. Public waterworks projects of significant dimension have generally been held to be major federal actions significantly affecting the human environment. Notably, the case of Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F.Supp. 878 (D.D.C. 1971), involved an action in which the construction of the Cross-Florida Barge Canal was sought to be enjoined. The court held that the planning and development of the project by the Army Corps of Engineers required an EIS.
        2. Similarly, a watershed, stream channelization project at a cost of $1.5 million, about half of which was to be funded federally, involving channelization of 66 miles of a river was held to be major federal action. Natural Resources Defense Council, Inc. v. Grant, 341 F.Supp. 356 (D.D.C. 1972). In Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 728 (E.D. Ark. 1971); aff’d 470 F.2d 289 (8th Cir. 1972), cert. denied 412 U.S. 931 (1973), the construction of a dam that formed part of a large federal public works project at a total cost of $14,800,000 for the dam and reservoir was held to require preparation of an EIS. An even larger dam and reservoir project involving the creation of flood control pool which would inundate 209,300 acres at its highest level, and 55,600 acres at conservation level, at a cost in excess of $230 million was also held to fall into the major federal category in the case of Environmental Defense Fund v. Froehlke, 347 F.Supp. 338 (D. Mo. 1972).
        3. A similar result was reached in Environmental Defense Fund v. Corps of Engineers (Tennessee Tombigbee), 331 F.Supp. 925 (D.D.C. 1971); on transfer to Mississippi District, 348 F.Supp. 916 (N.D. Miss. 1972), aff’d 492 F.2d 1123 (5th Cir. 1974). In that case, involving the construction of a waterway project to convert a free flowing river into a channelized slack-water system, an impoundment was planned to result in approximately 40,000 acres of water surface. See also, Confederated Tribes and Bands of Yakima Indian Nation v. Federal Energy Regulatory Commission, 746 F.2d 466 (9th Cir. 1984), cert. denied, 471 U.S. 1116 (1985).
      4. Pest Eradication
        Projects involving the use of pesticides or herbicides have been held to require EIS – such as herbicide spraying of a river to deal with water hyacinth problem, Lee v. Roser, 348 F.Supp. 389 (M.D. Fla. 1972). or the spraying of Mirex by the Department of Agriculture to deal with a multi-state fire ant problem. Environmental Defense Fund, Inc. v. Hardin, 325 F.Supp. 1401 (D.D.C. 1971).
      5. Transportation Projects
        Agency actions involving transportation projects — other than road construction — have also generated allegations of the need for EIS. In City of New York v. United States, 337 F.Supp. 150, supp. opinion 344 F.Supp. 929 (E.D. N.Y. 1972), the order of the ICC permitting abandonment of a short railroad line was found to require the preparation of an EIS because the abandonment of the line would cause greater reliance on more heavily polluting truck transportation of freight. So, too, the refusal by ICC to suspend an across-the-board temporary surcharge on freight rates, called for an EIS because it was alleged to create an extra burden on recyclable wastes, thereby causing a greater drain on natural resources. SCRAP v. United States, 346 F.Supp. 189 (D.D.C. 1972), stay denied 409 U.S. 1207 (1972), prob. juris. noted, 409 U.S. 1073 (1972), rev’d on other grounds, 412 U.S. 669 (1973). On the other hand, no such impact statement was required in Virginians for Dulles v. Volpe, 344 F.Supp. 573 (D.Va. 1972), aff’d in relevant part, 541 F.2d 442 (1976), for the Federal Aviation Administration’s action in allowing Boeing 727-100 airplanes to use Washington National Airport, since other, not significantly different planes were already using it.
    3. Ways for Industry to Use NEPA to Its Benefit
      1. To the extent that a proposed industry action does not involve the federal government and, therefore, does not require an EIS, NEPA may seem to be of little direct importance to industry and the general population. After all, NEPA is primarily a policy statute and imposes requirements only on federal government agencies. However, as the first major federal environmental law in the United States, NEPA set the tone for the environmental laws with which all industries are currently grappling. As a result, to the extent that an industry adopts the environmental policies presented in NEPA, it should have fewer problems complying with those other environmental laws. When a corporation develops an environmental program or considers undertaking a project affecting the environment, an EIS-type analysis will help lay the groundwork for environmentally wise decisions.
      2. At its core, NEPA integrates environmental factors into federal decision making and opens the door for public involvement in that decision making. As a result, industry can use NEPA to influence federal environmental decision making.
  5. CONCLUSION
    1. NEPA creates a federal environmental policy to which federal agencies must adhere.
      1. In addition, NEPA imposes the affirmative obligation of considering the environmental consequences of proposed actions. Debate has arisen, however, concerning the actual substantive affect of NEPA.
      2. This is because even after considering environmental factors and preparing an EIS an agency is not required to select the best environmental alternative. See, Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980). As long as the EIS is procedurally adequate, NEPA imposes no further duty on the agency. Some people have therefore argued that NEPA is merely a “make work” statute that has not resulted in better environmental decisions.
    2. It cannot be denied, however, that NEPA requires federal agencies to acknowledge and consider the environmental impact of their actions.
      1. In addition, to the extent that an EIS identifies or reveals a substantive requirement of a different environmental statute, it can serve as the starting point for a challenge to the action under the other statute.
      2. Finally, if an agency does not sufficiently explain its reasoning for ignoring environmental factors in reaching a decision, that decision may be challenged under the Administrative Procedure Act as arbitrary and capricious.
    3. To the extent that NEPA affects the outcome of agency decisions it has served a legitimate and definite purpose. However, while it is clear that NEPA has generated a lot of paperwork, created a lot of litigation, and delayed many federal actions, there is no real evidence that it has directly improved the quality of agency decisions. In the end, NEPA can only be as useful and effective as federal agencies allow by virtue of their belief in and adherence to its purposes and policies.

Copyright 1998, Steven M. Taber, staber@taberlaw.com

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