National Environmental Policy Act (NEPA) Jeff Wade Center for Governmental Responsibility University of Florida Levin College of Law The National Environmental Policy Act of 1969 (NEPA) first significant, modern environmental law in the U.S. Establishes an environmental impact review procedure for certain actions funded, authorized, or carried out by federal agencies. 1
Requires consideration of environmental factors in federal decision-making, Increases availability of information to the public, Enhances the role of the courts in federal environmental decisions, and Stimulates citizen involvement and litigation analyzing federal actions as they relate to environmental concerns. Prior to NEPA Several laws addressed the management of discrete environmental media or natural resources No recognition of the need for a broad approach to analyzing and modifying federal actions with potential effects on the environment Every administration since 1960 had opposed enactment of a comprehensive approach 2
NEPA does not overtly address biodiversity conservation. Presents opportunities to consider impacts on biodiversity as one of the review criteria, and thereby to improve the ability of federal agencies to make decisions promoting biodiversity conservation. Policy Provisions use all practicable means to improve and coordinate federal plans, functions, programs and resources in order to: 1. Fulfill the responsibilities of each generation as trustees of the environment for succeeding generations 2. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; 3. Enhance the use of renewable resources and the maximum attainable recycling of non-renewable resources. 3
Policy Provisions The Act also contains policy statements for: Federal agencies to utilize a systematic, interdisciplinary approach to integrating natural and social sciences and environmental design in planning and decision-making. Federal government to recognize the worldwide and long-range character of environmental problems and to support initiatives, resolutions, and programs designed to maximize international cooperation in preventing a decline in the quality of mankind's world environment. Procedural Provisions All federal agencies must developed detailed environmental impact statement (EIS) for all legislation and other proposal for major federal action significantly affecting the quality of the human environment. Approximately 500 EIS s per year. Each agency is required to develop its own NEPA review procedures, as related to the specific mission of the agency. Applies to all federal agencies, but not Congress or the judiciary, and not the President. Thus, budget decisions are not subject to the Act. 4
EIS Trigger proposal for major federal action significantly affecting the quality of the human environment 1. proposal : the stage at which an agency has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing the goal, and the effects can be meaningfully evaluated. 2. major : must be interpreted in the social and environmental context of the proposed action. There is no universally accepted definition or clear thresholds. 3. federal action : almost any activity, including rule adoption, legislative proposals, and interpretation of agency policy, as well as funding of projects and programs. --Can include the failure to act where such action is required under law. --Can also include state and local actions where federal financial assistance is involved. EIS Trigger 4. significantly affecting : usually depends on the facts of the case, but not often on the size or monetary costs of an action. --Includes consideration of the [u]nique characteristics of the geographic area such as ecologically critical areas and the degree to which the action may adversely affect an endangered or threatened species or its habitat. Cumulative and indirect or secondary impacts are considered in determining whether a proposed action significantly affects the environment. 5. quality of the human environment : broadly defined, including urban as well as natural resource impacts. Economic and social effects by themselves do not trigger an EIS, but when interrelated with natural or physical environmental effects, they must be analyzed. 5
Environmental Assessment Environmental assessment (EA), is a shorter, less comprehensive document which provides the initial information and analysis for determining whether an EIS is necessary. Approximately 50,000/year. 1. Essentially a screening device which includes: a. a short discussion of the need for the proposed action; b. discussion of alternatives to the proposed action; c. impacts of the proposed action and the alternatives; d. listing of agencies and people consulted. 2. Leads to either: a. FONSI ( finding of no significant impact ); or b. Finding that an EIS must be prepared. c. FONSI must include the EA or its summary, and the reasons why the action will not have a significant effect on the human environment. EIS Procedure The EIS procedure has several steps (briefly): A. Publication of Notice of Intent in the Federal Register. Describe proposed action and some possible alternatives, the intent to prepare an EIS, the details of the scoping process, and the agency contact person. B. Scoping process. Basically provides structure for the process of information collection, review, analysis, and dissemination. Requires good faith involvement of interested parties at the public and private levels. Intent is to identify the significant issues and the scope of the required analysis of those issues. C. Draft EIS, can be prepared by the lead agency or by a contractor so long as it has no financial interest in the proposed action. Circulated for public review and comment. 6
EIS Procedure D. Final EIS must evaluate and respond to comments, and include analysis of: 1. the environmental impact of the proposed action (direct, indirect and cumulative); 2. any adverse environmental effects which cannot be avoided if the proposal is implemented; 3. reasonable alternatives to the proposed action, including direct, indirect and cumulative impacts of each; alternatives are usually presented in comparative form. 4. the relationship between local short term uses of the environment and the maintenance and enhancement of long-term productivity; 5. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. E. Record of decision (ROD) signed by agency. Includes the decision, Which alternatives were considered, Which were considered environmentally preferable, A discussion of the analysis and balancing of factors, Efforts to avoid or minimize environmental harm, and A description of enforcement and monitoring requirements. 7
Alternatives Analysis The heart of the final EIS is the "alternatives analysis" which reveals how seriously the agency takes its responsibilities under the Act. Most emphasis is placed on description of the affected environment, the alternatives to the proposed action and possible mitigation measures. Supplemental EIS Supplemental EIS may be required in response to the availability of any important additional information. Evaluated on "reasonableness" standard. This can then be considered by the courts in determining the adequacy of the agency's final decision. 1. Normally the judicial standard of review is the reasonableness of the agency's analysis, but courts have often taken a "hard look" at EIS analyses, to ensure that the agency has made good faith efforts to include all reasonable possibilities in its decision-making. 2. This approach may be changing however, in response to more conservative Supreme Court decisions which have given more deference to agency decisions. 8
NEPA Advantages for Biodiversity Conservation Compared to the Endangered Species Act and Clean Water Act wetland programs, NEPA does not require the presence of and impact to a listed species or a wetlands -- it applies potentially to any federal action. Areas worthy of biodiversity protection are not always associated with listed species, wetlands, or any specific subjects of other environmental laws. Wherever federal actions occur, therefore, NEPA could require them to consider biodiversity impacts. NEPA applies broadly to the ecosystem which may be affected by federal action, thus expanding the impact analysis beyond a specific species or ecosystem component. 9
Limitations Though NEPA contains policies telling federal agencies to take a very broad and deep approach to protecting environmental values, the policy sections of an Act have no enforceability in a court of law. Of all the potentially enforceable substantive sections, only the procedural provisions have been found to be binding on agencies by the courts. Limitations Nothing in NEPA dictates the substantive results of federal agency decisions. Federal agencies must go through the process of complying with the environmental review procedure, but NEPA does not prescribe what the agency must decide based on the information gathered and analyzed in the EIS. Although NEPA can produce much valuable information about biodiversity, NEPA alone does not provide a legal tool for directing decisions towards enhancing biodiversity. 10
Limitations If the environmental assessment (EA) determines that the effects of an action are not significant, a full EIS study is not required. Many federal actions have been classified as presumptively not significant by federal agencies, thus qualifying for categorical exclusion from the EIS requirement. Limitations Unlike the ESA and CWA wetlands provisions, NEPA does not necessarily apply to local and private actions which might affect biodiversity. Many local and private actions require some form of federal funding or authorization that triggers NEPA's application to the federal funding or approval agency, but many either do not receive federal funding or qualify for a categorical exclusion. 11