🪸Environmental Policy and Law Unit 5 – National Environmental Policy Act (NEPA)

What's NEPA All About?

• National Environmental Policy Act (NEPA) signed into law on January 1, 1970 by President Richard Nixon
• Establishes national policy for the environment and provides a framework for environmental planning and decision-making by federal agencies
• Requires federal agencies to consider the environmental impacts of their proposed actions and involve the public before making decisions
• Aims to promote harmony between humans and the environment, prevent damage to the environment, and enrich understanding of ecological systems and natural resources
• Encourages productive and enjoyable harmony between humans and the environment through coordination of federal plans, functions, programs, and resources
• Mandates that the federal government use all practicable means to fulfill the responsibilities of each generation as trustee of the environment for succeeding generations
• Ensures safe, healthful, productive, and esthetically and culturally pleasing surroundings for all Americans

Key Players and Their Roles

• Council on Environmental Quality (CEQ) oversees NEPA implementation, develops regulations and guidance, and reviews agency NEPA compliance
• Environmental Protection Agency (EPA) reviews Environmental Impact Statements (EISs) and provides comments on the adequacy of the environmental impact analysis
  • EPA rates EISs as either "Lack of Objections," "Environmental Concerns," "Environmental Objections," or "Environmentally Unsatisfactory"
• Lead Agency is the federal agency proposing the action and responsible for preparing the NEPA documents (EIS or Environmental Assessment)
• Cooperating Agencies are other federal, state, tribal, or local agencies with jurisdiction by law or special expertise related to the proposed action
• Public plays a crucial role by providing input and comments during the scoping process and on draft NEPA documents
• Courts review NEPA cases and ensure agencies have followed the procedural requirements and taken a "hard look" at environmental consequences

NEPA's Big Steps: The Review Process

• Determine if the proposed action is subject to NEPA
  • If the action is exempt or categorically excluded, no further NEPA review is required
• Prepare an Environmental Assessment (EA) to determine if the proposed action will have significant environmental impacts
  • If no significant impacts are found, the agency issues a Finding of No Significant Impact (FONSI)
  • If significant impacts are likely, an Environmental Impact Statement (EIS) is required
• Scoping process to identify issues, alternatives, and potential impacts to be addressed in the EIS
• Draft EIS is prepared and made available for public review and comment, typically for a 45-day period
• Final EIS is prepared, addressing public comments and revising the analysis as needed
• Record of Decision (ROD) is issued, explaining the agency's decision, alternatives considered, and mitigation measures to be implemented

Environmental Impact Statements: The Nitty-Gritty

• EISs are detailed documents that analyze the environmental impacts of a proposed action and alternatives
• Key components of an EIS include:
  • Purpose and Need Statement describing the objectives and rationale for the proposed action
  • Description of the Proposed Action and Alternatives, including a No Action Alternative
  • Affected Environment section describing the current environmental conditions in the project area
  • Environmental Consequences section analyzing the direct, indirect, and cumulative impacts of each alternative on various resources (e.g., air quality, water resources, wildlife, cultural resources)
  • Mitigation Measures proposed to avoid, minimize, or compensate for environmental impacts
  • List of Preparers and Agencies Consulted
• EISs must be written in plain language and include visual elements (maps, charts, and graphs) to help the public understand the analysis
• Draft and Final EISs are published in the Federal Register and made available to the public

When NEPA Kicks In: Triggers and Exemptions

• NEPA applies to major federal actions significantly affecting the quality of the human environment
  • Major federal actions include projects funded, authorized, or carried out by federal agencies
  • Significance depends on context and intensity factors, such as impacts on public health, unique geographical areas, or threatened and endangered species
• Certain actions are exempt from NEPA, such as actions taken during emergencies, actions with minimal federal involvement, and actions specifically exempted by Congress
• Categorical Exclusions (CEs) are categories of actions that agencies have determined do not individually or cumulatively have significant environmental impacts
  • Examples of CEs include routine maintenance, minor facility renovations, and small-scale construction projects
  • CEs must be approved by CEQ and are subject to extraordinary circumstances that may require further NEPA review

NEPA's Real-World Impact

• NEPA has influenced federal decision-making and led to more environmentally-informed and transparent decisions
• Agencies have modified or abandoned proposed actions based on NEPA analyses and public input
  • Example: The U.S. Forest Service modified timber sales to protect old-growth forests and spotted owl habitat in the Pacific Northwest
• NEPA has increased public participation and awareness of environmental issues
  • Public comments have led to the identification of new alternatives and mitigation measures
• NEPA has promoted collaboration and conflict resolution among agencies, stakeholders, and the public
• NEPA has been emulated by many states and countries, leading to the adoption of similar environmental review processes worldwide

Criticisms and Controversies

• NEPA has been criticized for causing delays and increasing costs for federal projects
  • Critics argue that the NEPA process is overly lengthy and burdensome, particularly for infrastructure projects
• Some argue that NEPA has been used as a tool for litigation and obstruction by opponents of federal actions
  • NEPA lawsuits have delayed or halted projects, such as oil and gas drilling, highway construction, and renewable energy development
• Concerns have been raised about the quality and consistency of NEPA analyses across agencies
  • Critics argue that some agencies lack the expertise or resources to conduct thorough environmental reviews
• Questions have arisen about the effectiveness of NEPA in addressing cumulative impacts and climate change
  • Some argue that NEPA needs to be updated to better address these complex, long-term issues

Recent Changes and Future Outlook

• In 2020, CEQ issued revised NEPA regulations aimed at streamlining the review process and reducing delays
  • Changes included shorter timelines for EAs and EISs, expanded use of CEs, and limitations on public comments
  • The revised regulations faced legal challenges and were criticized by environmental groups as weakening NEPA's protections
• In 2021, the Biden Administration announced plans to review and revise the 2020 NEPA regulations
  • The administration aims to restore public participation, address climate change and environmental justice, and ensure robust NEPA reviews
• As environmental challenges evolve, NEPA will likely continue to play a crucial role in federal decision-making
  • Efforts to modernize NEPA may focus on incorporating climate change, environmental justice, and new technologies into the review process
  • Balancing the need for efficient reviews with comprehensive environmental analysis will remain a key challenge for NEPA's future