A' National Environmental Policy Act NEPA

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II. EnvironmentalPlanning Laws

• A. National Environmental Policy Act (NEPA)
• B. Fish And Wildlife Coordination Act (FWCA)
• C. National Historic Preservation Act (NHPA)
• D. Coastal Zone Management Act (CZMA)
• E. Essential Fish Habitat (EFH)
• F. Endangered Species Act (ESA)

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A. National Environmental Policy
Act (NEPA) 1. The NEPA Process 2. When To
Prepare An EIS 3. When To Prepare An EA 4. What
Is In An EIS 5. What Is Involved In Preparing An
EIS? 6. What Are Federal Agencies Environmental
Justice (EJ) Obligations? 7. NEPA Exercise
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National Environmental Policy Act
Section II.A

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General Background, Environmental Law

• Historical Background
• Types of Environmentalism
• Themes that Recur
• throughout Environmental Law
• Characterizing Environmental Laws

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What is the National Environmental Policy Act?

• Enacted in 1969
• Created Federal Policy Favoring Environmental
  Protection
• Created the Council on Environmental Quality
• Section 102 triggers an Environmental Impact
  Statement requirements

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Purpose of NEPA

• Primarily procedural, not substantive
• Build into the agency decision-making process an
  appropriate and careful consideration of all
  environmental aspects of proposed actions
• Enforced through lawsuits under the
  Administrative Procedure Act (APA)
• Corps gives consideration to NEPA policy in
  Section 101(b) requiring consideration of
  environmental values
• More than half the states have state-level NEPA
  requirements

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When is an Environmental Impact Statement (EIS)
Required?

• Is there an action?
• If yes, is the action federal?
• If yes, does that action
• significantly affect the quality
• of the human environment?
• If yes, is there an exemption
• or exclusion?

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What is an action?

• Fairly broad definition anything carried out,
  funded, or approved by a federal agency
• Includes
• agency proposals
• decisions not to act, and
• specific legislative proposals

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What is a federal action?

• Any action potentially subject to federal
  control or responsibility
• Small federal handle When federal government
  has a small role in a large private activity the
  review is usually limited to the smaller area

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What is Significantly affecting the human
environment?

• Significantly is assessed in context and based
  on intensity
• Affecting
• Includes effects on the environment and
  ecosystems, and on aesthetic, historic, cultural,
  economic, social, and health
• Encompasses
• direct effects
• indirect effects and
• cumulative effects
• Action should physically affect the environment
• If enforceable, effects can be mitigated to avoid
  an EIS

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Are there exemptions/exclusions to EIS
requirements?

• Exemptions
• Sometimes explicit
• Courts have also found exemption by implication
• Congressionally-directed short time-frame
• Statutes that significantly limit agency
  discretion
• Functional Equivalents
• No general exemption for classified matters
  (possible lifting of public notice requirements)
• Categorical exclusions

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What is an Environmental Assessment (EA)?

• Individual determination whether proposed action
  will significantly affect human environment
• May lead to EIS or FONSI
• Normally short, containing
• description of environmental impacts of proposed
  action,
• discussion of need for proposal,
• listing of agencies and persons consulted, and
• explanation of why agency believes action will
  not have a significant effect on environment.  
• Limited requirements for public comment

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What is in an Environmental Impact Statement
(EIS)?

• Cover sheet, summary, table of contents
• A statement of the purpose and need for the
  action
• A description of the proposed action and
  alternatives to the proposed action
• A description of the affected environment
• A description of the environmental consequences
  of each proposed and alternative action
• A description of means to mitigate identified
  consequences
• If one has been performed, a cost/benefit
  analysis
• List of preparers list of agencies,
  organizations, and persons to whom copies are
  sent index.
• Appendices

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What is involved in preparing an Environmental
Impact Statement?

• Action agency or lead agency
• Possible Programmatic EIS/Tiering
• Prepare Draft Environmental Impact Statement
  (DEIS)
• Prepare Final Environmental Impact Statement
  (FEIS)
• Possibly prepare Supplemental Environmental
  Impact Statement (SEISs)
• Prepare Record of Decision

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How Can Someone Challenge an Environmental
Impact Statement?

• Possible Bases for Judicial Review
• No EIS was prepared when one should have been
• EIS is not adequate
• If agencys NEPA compliance found inadequate,
  agency must undertake to comply with NEPA before
  engaging in the proposed action

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What are Federal Agencies Environmental
Justice (EJ) Obligations?

• Executive Order 12898
• December 1997 CEQ guidance document Environmental
  Justice Guidance Under the National
  Environmental Policy Act
• Interagency Working Group (IWG) guidance on key
  terms
• April 1998, the Environmental Protection Agency
  guidance document Final Guidance For
  Incorporating Environmental Justice Concerns in
  EPA's NEPA Compliance Analyses
• Other Laws Implicate Environmental Justice

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Council on Environmental Quality (CEQ)
http//www.whitehouse.gov/CEQ/

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CEQ NEPANet

• Current information re NEPA can be found through
  CEQs NEPANet http//ceq.eh.doe.gov/nepa/nepanet.
  htm
• CEQ published a recent
• review of NEPA at
• http//ceq.eh.doe.gov/
• nepa/nepa25fn.pdf

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NEPA

• Topic Summary Points
• NEPA imposes review procedures on agencies
• EAs determine whether a federal action will have
  a significant effect on the environment
• EISs are required for major federal actions
  significantly affecting the human environment
• EISs require certain specific contents and
  analyses
• NEPA lawsuits usually focus on failure to produce
  an EIS or EIS insufficiency
• Remedy is to enjoin action until compliance with
  NEPA
• Federal agencies should assess Environmental
  Justice implications of actions

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