| National Environmental Policy Act (NEPA) |
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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.
National Environmental Policy Act (NEPA)
Key Concepts NEPA Process NEPA Reality Council on Environmental Quality (CEQ) Environmental Impact Statement (EIS) Environmental Assessments (EA) Record of Decision (ROD) Administrative Appeals Process Essentials: When is an EIS Required? Federal Agency Federal Action Major Action, Significantly Affecting Human Environment Process Essentials: Preparing an EIS Notice of Intent Scoping Lead Agency Cooperating Agency Interdisciplinary Team (ID Team) EPA Review of Draft EIS (DEIS) Process Essentials: NEPA Document Content Proposed Action Purpose and Need Affected Environment Alternatives "No Action" Alternative Cumulative Impacts Process Essentials: Categorical Exclusions (CE) Bureau of Land Management (BLM) Categorical Exclusions Forest Service Categorical Exclusions Controversies Forest Plans and Categorical Exclusions Expediting NEPA Reviews Collaboration in Action Collaborative Groups Grappling with NEPA NEPA Studies NEPA Task Force NEPA Task Force II Links Key ConceptsNEPA ProcessSection 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.
NEPA RealityIn 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.Council on Environmental Quality (CEQ)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.Environmental Impact Statement (EIS)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:
The CEQ has detailed regulations and reports that help guide agencies and the public through the NEPA process. To access these documents, go to the CEQ NEPANet website.
Environmental Assessments (EA)
Guidance for Environmental Assessments of Forest Health Projects
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:
President Bush's Healthy Forests Initiative (HFI) calls for more timely decisions and greater efficiency in preparing EAs. Consequently, CEQ developed specific guidance for preparing EAs for HFI projects. For more information, click here.
Record of Decision (ROD)After completing an environmental impact statement, an agency issues a "Record of Decision" (ROD):
Administrative AppealsThe 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:
Process Essentials: When is an EIS Required?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.Federal AgencyNEPA 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."Federal ActionA wide variety of projects and activities involve "federal actions" that can trigger NEPA:
The CEQ's regulations are helpful in determining whether something is or is not a federal action.
SOPA Website
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. Major action, significantly affecting
Requirements for oil and gas NEPA documents:
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:
Two 2004 decisions of the Interior Board of Land Appeals (IBLA) require the BLM to prepare NEPA documents before issuing leases for both traditional oil and gas resources (in Utah) and coalbed methane development (in Wyoming.). See Oil and Gas for more details and links to the decisions.
Human Environment“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, Fed court rules that Navy sonar training not exempt from environmental laws, Greenwire 3/3/2008.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. Process Essentials: Preparing an EISPreparation 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).Notice of IntentAn 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"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:
Lead AgencyThe "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 Agency"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:
To see the current DOI Manual, go to the ELIPS web site. Interdisciplinary Team (ID Team)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.EPA Review of Draft EIS (DEIS)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. Process Essentials: NEPA Document ContentFederal 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 ActionThe "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.Purpose and NeedAn 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).Affected EnvironmentThe 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.AlternativesAn 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.
"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. "No Action" Alternative
Cumulative ImpactsIn 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.
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:
Process Essentials: Categorical Exclusions (CE)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."Bureau of Land Management (BLM) Categorical Exclusions
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.
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. Forest Service Categorical ExclusionsThe Forest Service has detailed procedures for categorical exclusions from the NEPA process. They include:
Examples of extraordinary circumstances that may trigger a NEPA analysis — even though a proposed action may fit within a general exclusion — include:
For more information on Forest Service categorical exclusions, see Forest Plans and Categorical Exclusions or the Forest Service NEPA web page. ControversiesForest Plans and Categorical ExclusionsThe 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. Expediting NEPA ReviewsAgency 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. The Bush administration contends that the lengthy studies used in NEPA analysis result in bureaucratic gridlock. Environmentalists assert that the Bush administration is trying to gut an important form of public participation that fosters critical environmental protections.While NEPA itself has not changed, Congress and the Bush administration have instituted process changes and categorical exclusions to expedite or avoid NEPA review on specific types of projects.
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. Healthy Forests Restoration Act of 2003 (HFRA)The main purpose of the Healthy Forests Restoration Act (HFRA) is to help the Forest Service and BLM plan and conduct hazardous fuels reduction projects on federal lands. The bill is also aimed at helping the agencies deal with insect infestations. To help accomplish these purposes, HFRA expedites 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. Categorical Exclusions for Fire ProjectsIn June 2003, the Forest Service and BLM created two new categorical exclusions (CEs) from NEPA:
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. Collaboration in ActionCollaborative Groups Grappling with NEPA
NEPA StudiesIn 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:
NEPA Task ForceIn 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:
NEPA Task Force IIIn 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:
LinksPublic Laws and RegulationsNational Environmental Policy Act of 1969Public Law 91-190, 83 Stat. 52 (1970). The text of NEPA can be viewed on the CEQ web site. READ MORE >> Council on Environmental Quality NEPA Regulations The text of the CEQ NEPA regulations is available through the CEQ web site. READ MORE >> It is also available by browsing the Code of Federal Regulations (CFR). READ MORE >> Considering Cumulative Effects Under the National Environmental Policy Act This CEQ report provides additional information concerning cumulative effects evaluation. READ MORE >> Federal AgenciesCouncil on Environmental Quality NEPAnetThis 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 training options. READ MORE >> 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. READ MORE >> 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. READ MORE >> Other ResourcesU.S. Institute for Environmental Conflict ResolutionThe Institute assists parties in resolving environmental conflicts that involve federal agencies or interests. READ MORE >> The Institute has also issued a "Report and Recommendations on a NEPA Pilot Projects Initiative" READ MORE >> |
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| Last Updated ( Monday, 28 April 2008 ) | |||||||
