National Environmental Policy Act

1
National Environmental Policy Act

• Passed in 1969 enacted in 1970
• First major statute of modern era of
  environmental law
• Comprehensive law over all Federal activities
• Not patchwork, does not mandate specifics or
  standards
• Relies on information

2
National Environmental Policy Act

• Forces agencies to consider the environmental
  impacts of their proposed actions and
  alternatives
• Far-reaching impacts 19 states and 130
  countries have similar statutes
• Requires all federal agencies create an
  environmental impact statement (EIS) on a
  recommendation or report on proposals for
  legislation and other major Federal actions
  significantly affecting the quality of the human
  environment

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National Environmental Policy Act

• An EIS is a tremendous undertaking some reach
  several thousand pages
• Analyses of a range of proposed actions that may
  address an issue
• Both unavoidable adverse impacts and mitigation
  alternatives
• Evaluation of alternative actions is the heart of
  an EIS

4
National Environmental Policy Act

• Also created the Council on Environmental Quality
  (CEQ) to oversee the NEPA process and its
  implementation
• Does not have enforcement ability
• Decisions shape natural resource policy
• Enforcement through citizen suits under the
  Administrative Procedure Act and federal question
  jurisdiction
• Should the agency prepare an EIS and was it
  sufficient?

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National Environmental Policy Act

• Thousands of EIS suits
• More lawsuits than any other environmental
  statute
• Fundamental goal of NEPA is to educate policy
  makers to assist agencies in mitigating
  environmental impacts
• Resist quick political decisions
• Arbitrary and Capricious
• Procedural statute

6
National Environmental Policy Act

• Logic a better informed agency will make better
  decisions
• EIS must be prepared for a recommendation or
  report on proposals for legislation and other
  major Federal actions significantly affecting
  the environment

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National Environmental Policy Act

• When to develop an EIS
• Whether the agency is dealing with legislative
  recommendations or major federal actions
• Specific projects
• New rules, regulations, and official policies
• Adoption of plans or programs to guide agency
  decisions
• Permitting or funding of private projects
• Whether the environmental impacts are significant

8
National Environmental Policy Act

• Clean Air Act and parts of Clean Water Act are
  exempt from EIS
• When EPA process is similar then exempt
• No actions also trigger an EIS
• Most agencies assume an EIS needs to be prepared

9
National Environmental Policy Act

• Unless obvious an EIS must be prepared, agency
  will develop an Environmental Assessment
• FONSI if no need for an EIS
• Public Scoping Process
• Prepare Draft EIS
• 45 days of public comment
• Usually Public Hearings

10
National Environmental Policy Act

• Final EIS
• Incorporate public comments
• 30 day moratorium on action so challenges can be
  filed
• Final Rule
• Published in Federal Register
• CFR

11
National Environmental Policy Act

• Must include
• Purpose and need for action
• Biological
• Socioeconomic
• Background Information
• Lead and Cooperating Agencies
• Policy, Authority, and Legal Compliance
• Role of other Agencies
• Scoping and public participation

12
National Environmental Policy Act

• Must include
• Full description of alternative actions
• Introduction
• Rational for alternatives
• Proposed action
• Description of Alternatives
• Alternatives considered but eliminated
• Comparison of Alternatives

13
National Environmental Policy Act

• Must include
• Affected environment
• Biological
• Socioeconomic
• Environmental consequences of proposed and
  alternative actions
• Impacts to groups of species (birds, fish)
• Impacts to vegetation
• Impacts to federally-listed species
• Impacts to water quality and human health
• Economic environment
• Impacts to hatcheries and environmental justice
• Impacts to existence and aesthetic values

14
National Environmental Policy Act

• Must include
• In depth discussion of alternatives, including
  mitigating measures
• List of preparers
• Consultation and coordination agencies
• Response to public comments

15
National Environmental Policy Act

• Final Rule, which enacts the decision, must
  include sections addressing
• NEPA Consideration
• Endangered Species Act Consideration
• Executive Order 12866 Cost/benefit analysis
• Regulatory Flexibility Act
• Small Business Regulatory Enforcement Fairness
  Act
• Paperwork Reduction Act

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National Environmental Policy Act

• Final Rule, which enacts the decision, must
  include sections addressing
• Unfunded Mandates Reform Act
• Civil Justice Reform - Executive Order 12988
• Takings Implication Assessment Executive Order
  12630
• Federalism Effects Executive Order 13132

17
National Environmental Policy Act

• Legal strategies challenging adequacy of EIS
• EIS did not set forth responsible opposing views
  or alternatives
• It was not compiled in objective good faith
• It would not permit the decision maker to full
  consider and balance the relevant factors
• The fact-finding did not have a substantial basis
  in fact

18
National Environmental Policy Act

• EIS must be prepared before decisions made and
  actions taken
• Programmatic EIS
• Very broad
• Overall project or program
• Then prepare site or action-specific EIS reports
  on a smaller scale.

19
National Environmental Policy Act

• Supplemental EIS
• When new information becomes available, changing
  the range of impacts considered
• Required when significant new circumstances or
  information relevant to environmental concerns
  becomes available
• EIS applies to US international activities that
  impact people in USA
• Trade agreements, global commons

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National Environmental Policy Act

• Can be very political
• Opens agencies to the public
• Pressure to consider environmental impacts
• Has become a standard part of federal decision
  making