National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA) is the nation's basic environmental law that applies to almost all actions taken by — or approved by — federal agencies. The first part of NEPA (section 101) establishes broad environmental goals for the nation. The second part (section 102) contains the statute's requirements for agency actions. Its principle is that federal agencies should "look before they leap." Thus, NEPA requires that before federal agencies take a major action, they must disclose the environmental impacts of their proposed action and evaluate alternatives that would have fewer environmental costs. NEPA requirements apply to all agencies of the federal government, but not to Congress, the courts, or the President.
As noted in a presidential proclamation, NEPA celebrated its 40th anniversary on January 1, 2010.
Section 102 of NEPA requires that agencies evaluate and disclose the environmental impacts of their proposed actions. Agencies can start by doing an environmental assessment (EA), which is supposed to be a brief document that allows the agency to decide if its proposal would have significant impacts.
- If the agency decides that the proposal will not have significant impacts, then the agency can end the process by issuing a "finding of no significant impact" (FONSI).
- If the agency finds that a proposed action might have significant impacts, then it must do a full environmental impact statement (EIS).
The full NEPA process can be lengthy and complex, and requires the agency to seek public comment at many points in the EIS process. But the federal courts have ruled that NEPA is a purely procedural statute. Even after preparation of a full EIS, NEPA does not require any particular decision. It just requires that the agency do the analysis and reporting required by law.
In practice, agencies usually will go straight to preparation of a full EIS when they are considering major projects. Agencies also identify whole categories of actions that do not cause significant environmental impacts. For these actions "categorically excluded" from the requirements of NEPA, agencies can skip preparation of either an EIS or an EA. See Process Essentials: Categorical Exclusions (CEs)for more detail on CEs.
The Council on Environmental Quality (CEQ) is a federal body established by NEPA and located within the executive office of the president. CEQ's responsibility is to coordinate, direct, and advise on federal environmental practices. That responsibility includes defining the procedures for complying with NEPA. CEQ's regulations apply to all federal agencies, although some agencies have issued their own NEPA procedures. The chairman of the CEQ is the President's lead advisor on environmental policies.
The CEQ's NEPA website contains a great deal of helpful information on the statute and its implementation. For a start, see the Citizen's Guide to the National Environmental Policy Act (2007). Early in 2010, the CEQ issued draft guidance on implementing NEPA, including new guidelines for using categorical exclusions and addressing mitigation and monitoring. After reviewing public comments, the CEQ finalized this guidance in January 2011. Additional guidance released in December 2011 promotes "efficient and timely" environmental reviews.
An EIS is the often-lengthy document that a federal agency uses to explain the environmental impacts of its proposed major projects. The process begins with "scoping," where the agency seeks public comment on what impacts the EIS should cover and what alternatives should be considered. A team of experts (including experts from other federal and state agencies) prepares a Draft EIS (DEIS) that includes:
- A description of the proposed action and why it is necessary;
- The environment that would be affected; and
- A comparison of alternatives to the proposal.
When the agency publishes a DEIS, it requests comments from the public. At the end of that comment period, the agency evaluates the comments and revises the EIS in response to issues raised by the comments. The agency then issues a final EIS (FEIS), followed by a "record of decision" (ROD) in which the agency notifies the public of its decision.
Flowchart courtesy of the Bureau of Reclamation
Guidance for Environmental Assessments of Forest Health Projects
For more information, click here.
The environmental assessment (EA) process is much less formal than the EIS process. CEQ regulations do not provide much guidance for preparing an EA, except that it must include:
- Brief discussions of the need for the proposed action;
- Alternatives to the proposed action;
- Environmental impacts of the proposed action and alternatives.
NEPA does not require the agency to involve the public in preparing an EA. But in practice, agencies often circulate draft EAs and solicit comments or hold public meetings. If an agency determines that the proposal will not have significant impacts, it prepares a document called a "finding of no significant impact" (FONSI), which ends the NEPA process. If the proposed project will have a significant impact, it can either:
- Prepare an EIS to evaluate and disclose the impacts; or
- Change the project to avoid significant impacts ("mitigate the project") and then prepare a FONSI for the revised project.
After completing an environmental impact statement, an agency issues a "Record of Decision" (ROD):
- Stating the decisions it has made;
- Identifying all the alternatives considered in making the decision;
- Identifying which alternative it considers to be "environmentally preferable," even if it has not chosen that particular alternative;
- Discussing the factors it balanced in making its decision; and
- Discussing whether it has adopted all practical mitigation measures — actions to minimize environmental impacts — for the alternative that it selected.
A formal ROD is not required for an EA. The Bureau of Land Management (BLM) prepares a Decision Record and the U.S. Forest Service prepares a Decision Notice to notify the public of their EA decisions.
The Forest Service, the BLM, and several other agencies provide for formal appeals of many of their EIS and EA decisions. In some cases, the agency requires that an objector appeal to the agency — pursue an administrative remedy — before going to court. Federal courts insist on exhaustion of these administrative remedies if statutes or agency rules Require them.
For example, Forest Service rules requires that individuals dissatisfied with the agency's NEPA decision must appeal the decision to the next higher level of authority within the agency. A forest supervisor's decision must be appealed to a regional forester; that decision is appealed to the Chief of the Forest Service and then to the Secretary of Agriculture. New Bush administration limitations on the appeals process mean that:
- Only individuals who have submitted substantive comments during the comment period on the NEPA document (30-day period for EAs and 45-day period for EISs) may appeal the decision;
- Decisions on projects categorically excluded from the NEPA process cannot be appealed;
- All appeals must be filed within 45 days of the published notice of the NEPA decision.
The Forest Service and the appellant may meet informally to resolve the issues raised in the appeal. But if this does not resolve the issues, the Forest Service conducts a formal review and then issues a written appeal decision within 45 days. A NEPA decision is not subject to judicial review until this internal appeals process is completed.
NEPA only requires federal agencies to prepare an EIS to thoroughly assess the environmental impacts of "major federal actions that could significantly affect the human environment." Whether or not something fits that requirement is spelled out in regulations issued by the CEQ and through court decisions.
NEPA applies to all agencies of the federal government, for example, the Forest Service, the Bureau of Land Management, and the National Park Service. However, it does not include Congress, the courts, or the President, since they are not technically "agencies."
A wide variety of projects and activities involve "federal actions" that can trigger NEPA:
- A project proposed and carried out on federal land — a Forest Service proposal to build a road or a visitor's center;
- An agency's adoption of official policies or plans — the National Park Service proposing a new regulation that will determine how public lands are used, such as the new snowmobile regulations for Yellowstone National Park; and
- "Continuing activities" — a decision about how an existing federal hydropower dam will be operated for the next year.
Less straightforward examples of federal agency actions:
- Approval of a project proposed by someone else (the project proponent) — development of a mine, oil and gas field or ski area; or
- Providing project funding unless the agency has no real control over use of the funds (e.g., if the project is built with general revenue sharing funds).
For example, a proposal to build a federally funded highway through a privately owned wetland would need a permit from the Army Corps of Engineers. In this case, both issuing the permit and providing federal funds would be federal actions that must be evaluated under NEPA. In another example, a federal judge ruled in November 2009 that the U.S. Bureau of Reclamation should have studied environmental impacts under NEPA before implementing a biological opinion rendered under the Endangered Species Act by reducing water flows in the Sacramento-San Joaquin Delta to protect the threatened delta smelt.
The CEQ's regulations are helpful in determining whether something is or is not a federal action.
The Schedule of Proposed Actions (SOPA) is a list of Forest Service proposals that will require or are undergoing environmental analysis and documentation. The SOPA includes proposals whose decisions are expected to be documented in a Decision Memo, Decision Notice, or Record of Decision.
The SOPA is available in hard copy or on the Forest Service web site at www.fs.fed.us/sopa.
Requirements for oil and gas NEPA documents:
See Oil and Gas for more details and links to the decisions.
There is often disagreement about whether a proposed federal action can fairly be described as either "major" or "significant." The CEQ regulations help in deciding those issues. Basically, the CEQ regulations tell agencies to look at two things:
- Context (whether the action is important at a local, regional or national level) and
- Intensity (How severe are the impacts? Will they affect human health or endangered species? Will the action set a precedent?).
Finally, it is important to understand that "major," and "significant" are treated together — even if an action appears to be "minor," it requires NEPA analysis if it could significantly affect the environment. A proposal for a coalbed methane field development would require an EIS, while approval of in-fill drilling or one exploratory well might only require an EA. Expanding a ski area might require and EIS or an EA depending on the resources that could be affected during expansion.
“Emergency circumstances” can release an agency from the requirement to complete a NEPA analysis, but this exemption is only available when there is an irreconcilable and fundamental conflict between NEPA’s requirements and that of another statute. The 9th Circuit Court of Appeals found that the Navy did not have such an emergency regarding its use of sonar for training.
See also the GAO report on Military Training and environmental law.
Agencies only need to prepare an EIS if their actions will affect the "human environment." "Human environment" includes the natural and physical environment as it relates to people. Consequently, if an agency action has only economic or social effects (effects on people), but does not affect the natural or physical world, it would not need to be analyzed in an EIS or EA. For example, a National Park Service decision to use qualified, contract archaeologists rather than full-time government employees for cultural surveys in the national parks would not require a NEPA analysis. While the action might have economic and social impacts, it would not affect the physical or natural world - assuming the contract archaeologists are qualified to do the job.
Preparation of an EIS begins with the agency filing a notice of intent to prepare an EIS. The agency then begins the formal public participation process with a process called "scoping." An interdisciplinary team (ID team) of the lead agency and cooperating agencies prepares a Draft EIS (DEIS). The lead agency publishes the DEIS and requests comments on the document from the public, cooperating agencies, and other agencies, including the Environmental Protection Agency (EPA). Following review and consideration of the comments, the lead agency prepares a Final EIS (FEIS) and a Record of Decision (ROD).
An agency must publish a "notice of intent" in the Federal Register when it decides to prepare an EIS. The notice describes the proposed action and reasonable alternatives, as well as the agency's proposed scoping process. The notice must name an agency contact person for the EIS process.
"Scoping" is a public process to determine the scope of issues that need to be covered in the EIS. As part of this process, the agency must:
- Invite other agencies, tribes, and interested parties to participate;
- Identify which issues will and will not be covered in the EIS, based primarily on which issues are significant or have been treated elsewhere; and
- Make assignments for preparing the EIS to the lead and cooperating agencies.
The "lead agency" prepares, or takes primary responsibility for preparing, an EIS. A lead agency is necessary when more than one agency is involved in the same proposed action or in a group of related actions being assessed in the NEPA process. Federal, state, and local agencies can work together cooperatively as "joint lead agencies" to prepare one environmental document that satisfies the requirements of all these levels of government.
"Cooperating agencies" are usually federal agencies, other than the lead agency, that have a special legal requirement or special expertise regarding the impacts that will be analyzed in the NEPA process. A state or local agency or an Indian tribe may become a cooperating agency.
DOI plans to work more with Federal and State agencies and Tribal and local governments
Changes to the DOI manual will:
- Require bureaus to invite eligible governmental entities to participate as cooperating agencies when the bureau is developing an EIS;
- Require bureaus to consider any requests by governmental entities to participate as a cooperating agency with respect to a particular EIS; and
- Ensure that throughout the development of an EIS, the bureau will collaborate with all cooperating agencies, to the fullest extent practicable.
The revised manual emphasizes the types of cooperation envisioned in the Cooperative Conservation Executive Order (EO 13352).
To see the current DOI Manual, go to the ELIPS web site.
NEPA requires that agencies use an interdisciplinary approach in their analysis of impacts. An ID Team, including personnel from both lead and cooperating agencies, is usually formed for preparation of an EIS. The size of the team and the disciplines and skills of the group depend on the scope of the action and the issues identified in the scoping process. For less complicated proposals, the agencies may select one or more persons rather than a full team to conduct the required analysis. The team or individual identifies the environmental issues related to the proposed action, develops alternatives to be analyzed, and prepares environmental documents.
The EPA has a special duty, required by section 309 of the Clean Air Act, to review and comment on the possible environmental impact of federal actions. After review, the Administrator of EPA has to make his or her comments public. If he finds the proposal to be environmentally "unsatisfactory," the Administrator has to publish this finding and "refer" the matter to the CEQ for further action.
For example, EPA recently gave an "Environmentally Unsatisfactory - Insufficient Information (EU-3)" rating to the Wyoming BLM's Draft Environmental Impact Statement for the Powder River Basin Oil and Gas Development (DEIS). However, because BLM addressed many of EPA's concerns about the DEIS in its FEIS and additional mitigation measures could be addressed in the record of decision and through state and federal environmental programs, EPA did not elevate the FEIS to the CEQ for further action. EPA found similar problems with BLM's Pinedale Anticline Plan review in 2008.
Federal agencies can prepare a number of different documents to describe the impacts of their proposed actions and to officially convey their decisions to the public. EISs and EAs are written to describe proposed actions and evaluate the impacts. EISs have to discuss several topics, including:
- Proposed action;
- Purpose and need for the action;
- Affected environment;
- Alternatives to the proposed action; and
- Cumulative impacts.
In many cases, environmental assessments will cover the same subjects.
The "proposed action" is the project or program that the agency is planning to take or to approve, permit, or fund. The "proposed action" is the starting point for the EIS analysis, but it is not necessarily the final action that the agency will decide to take. The NEPA process requires the agency to develop environmental information at the proposal stage —before a decision is made or an action is taken — so that the agency will use the information to make an informed decision.
An EIS must clearly state the "underlying purpose and need" for its proposed action. How this purpose and need is framed is important because it governs what alternatives must be considered in the document. For example, in analyzing the impacts of a proposed coal-bed methane development, a broad statement of purpose (e.g., to provide for reasonable energy development within a national forest) is likely to lead to a broader range of alternatives being considered in the EIS than if the stated purpose of the proposal were narrow (e.g., to efficiently develop a particular gas field).
The EIS must describe the area affected by all the alternatives being considered in the document. This section is supposed to provide enough information so that the public can understand and compare the effects of the alternatives.
An EIS must consider all reasonable alternatives and analyze them in detail. "All reasonable alternatives" includes the proposed action and the "no action" alternative plus other alternatives, even if they are outside the lead agency's jurisdiction. "Reasonable alternatives" does not simply mean what is desirable from the standpoint of whoever is proposing the project. It also includes other common-sense alternatives that are technically and economically practical or feasible. In its discussion of alternatives, the agency must identify its "preferred" alternative.
Early in 2010, the CEQ issued draft guidance on how mitigation and monitoring must be assessed in this process.
"No surface occupancy" Alternative
NEPA does not require an agency to explicitly consider every possible alternative to a proposed action, but it must explain its reasoning for eliminating a viable alternative. In TWS v Wisely (BLM) the BLM was arbitrary and capricious in not considering a "no surface occupancy" lease alternative for South Shale Ridge oil and gas leasing EA.
Federal agencies must analyze the "no action" alternative — the consequences of doing nothing different — in each EIS.
- If the proposed action is to permit or construct a particular project, then taking "no action" would mean denying the permit (for example approval to drill a well) or not constructing the project (for example, a visitor center or campground).
- If the proposed action is an agency's land management plan, then "no action" means "no change" from current management. The impacts of this "no action" or "no change" alternative would be whatever is expected to be the effects of continuing with current management activities.
In an EIS, the agency must examine the impacts its proposed action could have in combination with other past and future projects. They must analyze these impacts regardless of who might be undertaking the other projects and regardless of whether those other projects are on federal lands. For example, the impacts of a Forest Service timber sale on wildlife might have to be examined in combination with other federal timber sales and timber cutting on nearby private lands. Cumulative impacts must be evaluated to prevent a lot of seemingly disconnected projects from avoiding NEPA analysis and eventually adding up to be a significant problem. There has been a lot of controversy over what needs to be included in cumulative impacts analyses. Both agency reports and court cases help provide guidance.
In early 2010, the Obama administration announced plans to require analysis of the proposed action's relation to climate change, along with impacts on land use, biological diversity, and air and water quality. Thus, for example, an agency would have to analyze whether a proposed new road near the coast might be impacted by projected rising sea levels, or whether a proposed clearcut might result in different species of plants replacing the harvested trees. This change would be formalized in an executive order issued by the President. See "Federal agencies may have to consider climate before they act," LA Times, 1/1/10. The White House released its draft guidance on climate change analysis and NEPA on February 18, 2010. For a copy of the draft guidance document, click here.
In November 2009 a federal court judge ruled that a faulty impacts analysis in a NEPA process may subject the government to financial liability later. In a case interpreting the liability of the U.S. Corps of Engineers for flooding related to the Katrina Hurricane, Judge Stanwood Duval Jr. found the Corps was guilty of "gross negligence" for failing to maintain the Mississippi River-Gulf Outlet shipping channel, and concluded that the agency failed to adequately consider a range of environmental impacts the agency knew to be likely in a 1976 EIS prepared for the project. The federal government is expected to appeal the decision.
In March 2010, a federal court judge ruled a NEPA analysis inadequate for failing to consider potential transboundary effects as part of the cumulative impact analysis. The EIS considered impacts of a proposed water pipeline that would have moved water over the continental divide, but failed to consider adequately the possiiblity of biota transfer (invasive species introduction) to the Hudson Bay if the pipeine were to breach after construction.
Court Requires Better Cumulative Impact Analysis for Nevada Gold Mines: Great Basin Mine Watch v. USDOI/BLM
In August 2006, a three-judge panel of the 9th Circuit Court of Appeals found that BLM could analyze impacts of two mines in separate EISs, but that they had to do a better job. BLM's vague and conclusory statements, without any supporting data, did not constitute a "hard look" at the environmental consequences of the action as required by NEPA.
Citing previous decisions, the court provided additional guidance for an adequate cumulative impact analysis:
- A cumulative impact is "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions."
- "Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."
- "[P]roper consideration of the cumulative impacts of a project requires some quantified or detailed information; general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided."
- "[T]he Environmental Impact Statement must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and difference between the projects, are thought to have impacted the environment."
Seeking a similar result, environmental groups filed a suit in August 2011 against the BLM, claiming that it has inadequately assessed the cumulative impacts of coal leasing in the Powder River Basin. See story here.
Agencies can decide that an entire category of their actions will not, either alone or in combination with other activities, have a significant impact on the environment and will not, therefore, require an EIS or an EA. Each federal agency can develop its own procedures for determining what type of actions should be "categorically excluded."
The CEQ published draft guidance on categorical exclusions on February 23, 2010, which it finalized in November 2010 in final guidance on “Establishing, Applying, and Revising Categorical Exclusions under NEPA.” The guidance is designed to more effectively incorporate best practices, evolving technologies, and public stakeholder participation to ensure a transparent and fully informed process when considering the use of categorical exclusions.
In the wake of the Gulf oil spill in 2010, many called for the end of categorical exclusions for offshore and onshore oil and gas developments. In August 2010, Rep. Grijalva (D-Ariz.) called on the Obama Administration to end the practice of granting such exclusions for exploratory work related to hardrock mining, expressing particular concerns about uranium deposits near Grand Canyon National Park. The Department of the Interior indicated no intention of changing the rules related to hardrock mining.
BLM proposes additional CEs for:
The BLM maintains a list of categorical exclusions and a companion list of 10 exceptions that identify specific circumstances in which the categorical exclusions do not apply.
- If a proposed action fits into one of the exclusions and no exceptions apply, the agency can proceed with its proposed action without preparing an EIS or an EA.
- If a proposed action fits one of the exclusions, but one of the exceptions applies, the agency has two choices:
- It can either prepare an EIS or an EA (whichever seems appropriate), or
- It can modify the project (e.g., moving it out of a unique area) to avoid the exception.
In its handbook, the BLM encourages managers to apply categorical exclusions, because they reduce paperwork and speed the decision-making process.
For more detail on BLM's current categorical exclusions, go to Part 516, Chapter 11 of DOI's manual.
For recent changes and additional proposals for CEs, see DOI's Office of Environmental Policy and Compliance web page.
For a report criticizing the BLM's interpretation of the Energy Policy Act of 2005 to apply categorical exclusions that effectively fast-track oil and gas activity on public lands where development is already occurring, see "Greater Clarity Needed to Address Concerns with Categorical Exclusions for Oil and Gas Development under Section 390 of the Act," GAO-09-872, 9/16/09. In response to the GAO report, conservation groups requested the agency to stop using categorical exclusions to streamline oil and gas development, while the Independent Petroleum Association of Mountain States released a position paper objecting to the report's analysis. See "Groups ask BLM to suspend streamlined drilling reviews," Grand Junction Sentinel, 10/6/09. Several environmental groups filed a lawsuit challenging application of the policy in Utah, which the administration settled in March 2010. Under the settlement agreement, the BLM agreed to:
- adopt a national policy of not using categorial exclusions when “extraordinary circumstances” occur;
- not use categorical exclusions in the West Tavaputs natural gas field in Utah until a new environmental assessment or EIS on the impact of gas development is completed; and
- after completing the West Tavaputs EIS, conduct a study of the impact ofdust and chemicals on cultural resources in the area.
In May 2010, the Department of the Interior released new policies aimed at reforming onshore oil and gas leasing, including restrictions on the applicaiton of categorical exclusions. See "Feds tighten leasing rules," Casper Star-Tribune, 5/18/10. In August 2011, however, Federal Judge Nancy Freudenthal granted a
nationwide injunction against implementation of the 2010 policy and thus
reinstated the expedited review process, concluding that the agency's
new position was an "about face" from former practices, and thus
necessitates formal rulemaking. See story here. At a congressional hearing in September 2011, the BLM indicated that it is commencing this rulemaking process.
In October 2011, the Department of Energy announced its own new rules adding 20 new exclusions related to energy development, including small-scale renewable energy projects, wind turbines, electric-car recharging stations, lead-based paint removal, and solar photovoltaic systems.
The GAO issued an updated analysis of the use of categorical exclusions for oil and gas development in September 2011.
Forest Service Categorical Exclusions
The Forest Service has detailed procedures for categorical exclusions from the NEPA process. They include:
- A detailed process for determining whether an exclusion applies;
- Requirements for documenting use of the exclusion;
- A list of exclusions; and
- A list of exceptions or extraordinary circumstances in which the categorical exclusion may apply.
Examples of actions that the Forest Service categorically excludes from the NEPA process are closing of roads to protect bighorn sheep during lambing season and approval of minor special uses like one-time events.
Examples of extraordinary circumstances that may trigger a NEPA analysis — even though a proposed action may fit within a general exclusion — include:
- the presence of steep slopes or highly erosive soils;
- threatened and endangered species or their critical habitat;
- flood plains, wetlands, or municipal watersheds; and,
- special areas like wilderness or Native American cultural sites.
Whether or not the extraordinary circumstance triggers a NEPA analysis depends on the agency's evaluation of the circumstance and its impact on potential environmental effects of the proposed action.
The Forest Service is required by the National Forest Management Act to prepare plans that outline how it intends to manage each national forest. Those plans are routinely amended and then are supposed to be rewritten every 10 to 15 years in plan revisions. Plans and plan revisions can run into many hundreds of pages and are very complex. Plan amendments can be simple or complex. The Forest Service has to comply with NEPA in its planning for the national forests, but when and how it does so has changed.
In the past, the Forest Service has treated development of forest plans and plan revisions as the kind of action that required a full EIS. The Bush Administration's 2008 planning rules eliminated the requirement that the agency prepare an EIS for all forest plans. Instead, the Forest Supervisor can decide whether an EIS is needed or whether a categorical exclusion applies.
The administration argues that forest plans are only zoning documents — frameworks for future on-the-ground management decisions — that normally do not authorize any ground-disturbing actions or commit funding or resources. It contends that only later, site-specific activities — proposed and developed within the constraints of the plan — should be subject to NEPA analysis. Based on this reasoning, a plan that revises or amends a national forest's goals and objectives for oil and gas leasing or grazing could be categorically excluded from NEPA analysis. However, decisions that directly affect how resources will be managed — for example, stipulations for oil and gas leases, or changes in grazing levels — would still require a NEPA analysis.
Critics of the new procedures for NEPA analysis argue that full NEPA analysis is important because forest plans make critically important choices about overall management direction and environmental safeguards, and that categorically excluding forest plans from NEPA will deprive citizens of their right to understand and comment knowledgeably on forest plan alternatives and their environmental consequences.
Agency implementation of NEPA has evolved over three decades through trial, error, administrative decisions, and court battles. Recent years have seen increasing controversy over how and even whether NEPA should apply to certain activities. A bill sponsored by Rep. Ross (R-Fla.) in the 112th Congress, for example, attempted to streamline NEPA review by setting hard deadlines for completing the process and limit opportunities for legal challenges.
For its part, the Council on Environmental Quality has encouraged consolidated reviews in order to streamline the NEPA process. See, for example, the CEQ guidelines released in March 2013 for integrating NEPA and National Historic Preservation Act reviews.
While NEPA itself has not changed, Congress and several presidential administrations instituted process changes and categorical exclusions to expedite or avoid NEPA review on specific types of projects. For example, in June 2012, the Forest Service announced plans to promulgate three new categories of categorical exclusions for forest restoration activities.
Indian Energy Development Project Exemptions
The Indian Tribal Energy Development and Self-Determination Act in the Energy Policy Act of 2005 allows Tribes to forego NEPA if the Interior Department approves a "tribal energy resource agreement" for the Tribe.
The Energy Policy Act establishes criteria for approving the agreements, agreement components and provisions for oversight. To approve an agreement, the Secretary of Interior must determine that the Tribe has sufficient capacity to regulate the development of its energy resources.
For details, see Title V of the Energy Policy Act of 2005.
The main purpose of the Healthy Forests Restoration Act (HFRA) was to help the Forest Service and BLM plan and conduct hazardous fuels reduction projects on federal lands. The bill was also aimed at helping the agencies deal with insect infestations. To help accomplish these purposes, HFRA expedited the NEPA review process in two ways.
First, HFRA authorizes the agencies to implement hazardous fuels reduction projects on federal lands, including urban-wildland interface lands near communities and lands with altered fire regimes. While HFRA requires the agencies to prepare an EIS or an EA for these projects, the law limits the number of alternatives that the agencies can analyze in their evaluation of project impacts. For most projects, the agencies will have to analyze the proposed action, the "no action" alternative, and one additional action alternative. If the project is in the wildland-urban interface, the agencies can ignore the "no action" alternative. If a local community has a community wildfire protection plan, the agency must analyze the plan as either its proposed action or as an alternative.
HFRA also authorizes the agencies to use "applied silvicultural assessments" — forest treatments such as thinning, prescribed burns, and insecticide spraying — that might help the agency in gathering information on problem insects and how to deal with them. The law creates a categorical exclusion from NEPA for up to 250,000 total acres of these assessments. Each individual assessment project is limited to 1,000 acres and the agency planning the projects has to notify the public and ask for comments. The agencies do not, however, have to evaluate whether the projects, either individually or cumulatively, will have a significant effect on the environment.
For more information on the Healthy Forests Restoration Act, click here.
In June 2003, the Forest Service and BLM created two new categorical exclusions (CEs) from NEPA:
- Hazardous fuels reduction activities identified through a collaborative framework; and
- Rehabilitation activities for lands and infrastructure impacted by wildfires or wildfire suppression.
There are acreage limitations on both categories of activities and neither can use herbicides or pesticides as part of their land treatments.
In creating these CEs, the agencies concluded — after a review of 2,500 hazardous fuel reduction and rehabilitation projects and peer-reviewed scientific literature identifying the effects of hazardous fuels reduction activities — that these activities would not individually or cumulatively have a significant effect on the human environment. Like other CEs, neither new category can be used to avoid NEPA analysis where there are extraordinary circumstances, such as adverse effects on threatened and endangered species or their designated critical habitat, wilderness areas, inventoried roadless areas, wetlands, impaired waters, or archaeological, cultural, or historic sites.
For the text of the categorical exclusions, see the June 5, 2003 Federal Register.
Three collaborative groups featured in the RLCH Collaborative Stories are currently grappling with NEPA:
- Northwest Colorado Stewardship is working with the Keystone Center to develop a scope of work and to outline where and how the group will engage with the BLM in the NEPA process. The "major federal action" which requires NEPA analysis is the development of the Resource Management Plan for the local BLM area. Partnership participants just completed a Place Based NEPA workshop, provided by The Partnership Resource Center, to prepare them for this groundbreaking task.
- The Lakeview Stewardship Group (LSG) of Lake County Oregon has been considering how the group wants to deal with the Healthy Forests Restoration Act's (HFRA) attempts to expedite NEPA. (For more information, go to Controversies: Expediting NEPA Review.). While HFRA allows the Forest Service to do a restoration project after analyzing only one alternative in the NEPA process, the group has decided not to pursue that opportunity. Some of the members of the group object to limiting the NEPA analysis in this way and the Forest Service has determined that adding analysis of another alternative would not add to the cost of the analysis.
- Wallowa Resources of northeastern Oregon is doing pre-NEPA work with the Forest Service on a collaborative watershed assessment. Following the assessment, the Forest Service will use a variety of NEPA procedures including CEs, EAs and an EIS to plan the implementation of specific watershed restoration projects. Wallowa Resources and the Wallowa County Government are exploring opportunities to assist the Forest Service with NEPA through third-party contracting.
In the fall of 2000, U.S. Senators Max Baucus, Mike Crapo, Harry Reid, and Craig Thomas asked the U.S. Institute for Environmental Conflict Resolution of the Morris K. Udall Foundation to study the use of pilot projects to explore ways to improve the implementation of NEPA.. The study looked at increased collaboration, consensus building, and appropriate dispute resolution processes in NEPA. The report recommends moving forward with pilot projects to, among other things, improve NEPA implementation through collaborative decision-making and consensus building. The Institute recommends that a pilot project initiative goals include:
- Demonstrating, evaluating, and providing guidance on innovative and practical collaborative approaches to NEPA implementation problems; and
- Building public understanding of the appropriate uses and standards for collaboration within the NEPA context.
The Institute's "Report and Recommendations on a NEPA Pilot Projects Initiative" is available here.
In May 2002, the CEQ formed a NEPA Task Force to review current NEPA implementing practices and procedures in several key areas, including federal and intergovernmental collaboration, adaptive management, and categorical exclusions. The NEPA Task Force recommended the following actions regarding collaboration:
- Identify, develop and share methods of engaging federal, state, local and tribal partners in training on NEPA principles, agency missions and collaboration skills;
- Develop guidance on the components of successful collaborative agreements and provide templates applicable to various situations and stages of the NEPA process; and
- Explore the use of a facilitated, collaborative process to develop and refine alternatives and outline how agencies can document the process of refining a proposal and conforming to CEQ regulations.
In July 2006, a NEPA task force, chaired by Rep. McMorris (R-WA), issued its final report. The report followed several field hearings across the country and analysis of comments from the public on a range of issues.
The report includes 20 recommendations grouped into the following categories:
- Addressing delays in the process
- Enhancing public participation
- Better involvement for stakeholders
- Addressing litigation issues
- Clarifying alternative analysis under NEPA
- Better Federal agency coordination
- Additional authority for the Council on Environmental Quality
- Clarifying the meaning of "cummulative impacts"
According to the task force, their recommendations are a starting point for improving NEPA for the benefit of all stakeholders. Their near-term next steps include:
- Holding a hearing on the recommendations before the full Committee on Resources,
- Additional dialogue with CEQ to understand how the recommendations would be implemented, and
- Additional consultation with stakeholders to assess the impact of the recommendations.
In its report, the task force also suggested that legislation be prepared and introduced to facilitate implementation of the recommendations. For more information on the task force and its reports, see the task force web page.
Click here for full report in pdf.
Public Laws and Regulations
National Environmental Policy Act of 1969
Public Law 91-190, 83 Stat. 52 (1970). The text of NEPA can be viewed on the CEQ web site.
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Council on Environmental Quality NEPA Regulations
The text of the CEQ NEPA regulations is available through the CEQ web site.
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It is also available by browsing the Code of Federal Regulations (CFR).
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Considering Cumulative Effects Under the National Environmental Policy Act
This CEQ report provides additional information concerning cumulative effects evaluation.
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Council on Environmental Quality NEPAnet
This web site links the user to a variety of valuable resources pertaining to NEPA, including the text of NEPA, federal agency and international web sites, and several federal and state guidelines and resources for implementation. The site provides two CEQ studies, one about cumulative effects and the other about the effectiveness of NEPA. CEQ reports and environmental statistics are available, as well as digital forms and EISs that can be viewed. The site includes summaries of important NEPA court cases and a listing of NEPA
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CEQ's 40 Frequently Asked Questions about NEPA
This web site contains links to 40 different topics that are sources of frequent confusion to those who wish to use, comment upon, implement, or change NEPA actions and decisions. The topics span a broad range of areas, from commenting upon NEPA actions, alternatives (such as "preferred," "no action," and "environmentally preferable") to FONSIs, and many more.
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USDA Forest Service NEPA website
This web site contains links to Forest Service NEPA policy and implementation procedures, including agency handbooks and manuals, Forest Service actions under NEPA, and information on categorical exclusions from NEPA.
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U.S. Institute for Environmental Conflict Resolution
The Institute assists parties in resolving environmental conflicts that involve federal agencies or interests.
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The Institute has also issued a "Report and Recommendations on a NEPA Pilot Projects Initiative"
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