National Environmental Policy Act
The National Environmental Policy Act is a United States environmental law designed to promote the enhancement of the environment. It created new laws requiring U.S. federal government agencies to evaluate the environmental impacts of their actions and decisions, and it established the President's Council on Environmental Quality. The act was passed by the U.S. Congress in December 1969 and signed into law by President Richard Nixon on January 1, 1970. More than 100 nations around the world have enacted national environmental policies modeled after NEPA.
NEPA requires federal agencies to evaluate the environmental effects of their actions. NEPA's most significant outcome was the requirement that all executive federal agencies prepare environmental assessments and environmental impact statements. These reports state the potential environmental effects of proposed federal agency actions. Further, U.S. Congress recognizes that each person has a responsibility to preserve and enhance the environment as trustees for succeeding generations. NEPA's procedural requirements do not apply to the president, Congress, or the federal courts since they are not a "federal agency" by definition. However, a federal agency taking action under authority ordered by the president may be a final agency action subject to NEPA's procedural requirements.
History
NEPA grew out of the increased public appreciation and concern for the environment that developed during the 1960s, amid increased industrialization, urban and suburban growth, and pollution across the United States. During this time, environmental interest group efforts and the growing public awareness resulting from Rachel Carson's 1962 book Silent Spring led to support for the 1964 Wilderness Act and subsequent legislation. The public outrage in reaction to the Santa Barbara oil spill in early 1969 occurred just as the NEPA legislation was being drafted in Congress. A fire on the Cuyahoga River was publicized in a Time magazine article shortly after the unanimous vote in the Senate. 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. In addition, as the contribution of Indiana political scientist Lynton Caldwell shows, concern for the environmental recklessness of international development programs in the 1950s and 1960s also drove the thinking behind NEPA.In 2015 a United States District Court provided a documented concise background of NEPA being created to protect the environment from actions involving the Federal government as follows:
Following nearly a century of rapid economic expansion, population growth, industrialization, and urbanization, it had become clear by the late 1960s that American progress had an environmental cost. A congressional investigation into the matter yielded myriad evidence indicating a gross mismanagement of the country's environment and resources, most notably at the hands of the federal government. As a result, lawmakers and the general public alike called for an urgent and sweeping policy of environmental protection.
Congress answered these calls by enacting NEPA, which has served as "our basic national charter for protection of the environment" since 1970. With NEPA, Congress mandated that federal agencies take a "hard look" at the environmental consequences of their actions and to engage all practicable measures to prevent environmental harm when engaging in agency action. Furthermore, to remedy the widespread mistrust of the federal agencies, Congress incorporated within NEPA "action-forcing" provisions which require agencies to follow specific procedures in order to accomplish any federal project.
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 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.
A U.S. District Court describes the need for even the President to have the NEPA analysis information before making a decision as follows:
"No agency possesses discretion whether to comply with procedural requirements such as NEPA. The relevant information provided by a NEPA analysis needs to be available to the public and the people who play a role in the decision-making process. This process includes the President." "And Congress has not delegated to the President the decision as to the route of any pipeline."
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 ; an environmental assessment ; and either a Finding of No Significant Impact, or, alternatively, the preparation and drafting of an environmental impact statement.Executive Order No. 11514 as amended by Executive Order No. 11991 directs the Council on Environmental Quality to issue "regulations to Federal agencies for the implementation of the procedural provisions of" NEPA and for Federal agencies to "comply with the regulations issued by the Council". Importantly the Supreme Court of the United States finds "that CEQ regulations are entitled to substantial deference."
The Council on Environmental Quality's NEPA regulation 40 C.F.R. § 1501.4 specifies the process to determine whether to prepare an Environmental Impact Statement as follows:
In determining whether to prepare an environmental impact statement the Federal agency shall:
Determine under its procedures supplementing these regulations whether the proposal is one which:
If the proposed action is not covered by paragraph of this section, prepare an environmental assessment. The agency shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by § 1508.9.
Based on the environmental assessment make its determination whether to prepare an environmental impact statement.
Commence the scoping process, if the agency will prepare an environmental impact statement.
Prepare a finding of no significant impact, if the agency determines on the basis of the environmental assessment not to prepare a statement.
In addition to complying with the Council on Environmental Quality's NEPA regulations in 40 C.F.R. § 1500 through § 1508, each Federal agency is required by 40 C.F.R. § 1507.3 to adopt supplemental procedures for their agency's implementation of NEPA. For example, the Federal Highway Administration's supplemental NEPA procedures are in 23 C.F.R. §771.101 through § 771.131. According to 23 C.F.R. § 771.115 Class I actions such as a new controlled access freeway or a highway project of four or more lanes on a new location significantly affect the environment and therefore require an Environmental Impact Statement. According to 23 C.F.R. § 771.115 and § 771.117 Class II actions such as construction of bicycle and pedestrian lanes, planning, noise barriers, and landscaping normally do not individually or cumulatively have a significant environmental effect and therefore may be categorically exempt unless there are unusual circumstances as provided in 23 C.F.R. § 771.117. According to 23 C.F.R. § 771.117 all other actions are Class III actions requiring the preparation of an Environmental Assessment to determine the appropriate environmental document required.