17. National Environmental Policy Act

• Pages: 851-940

851

NATIONAL ENVIRONMENTAL POLICY ACT

17

851

National

Environmental

Policy Act

Citations:

42 U.S.C. §§4321-4347 (2000); enacted January 1, 1970 by Pub. L. No.

91-190; 83 Stat. 852.

Lead Agency:

Council on Environmental Quality, Old Executive Office Building, Room

360, Washington, DC 20502 (202) 456-6224 http://www.whitehouse.gov/

ceq.

Overview:

The National Environmental Policy Act (NEPA) was the first federal

statute to use the “impact statement” approach in federal regulation. Its pur-

pose is to require federal agencies to analyze and consider the environmental

impact of their actions in an open and public process. The Act also created the

Council on Environmental Quality within the Executive Office of the Presi-

dent.

Environmental Impact Statements. The core of NEPA is found in

section 102(2)(C) (codified at 42 U.S.C. §4332(2)(C) (2000)), which creates

the environmental impact statement (EIS) requirement. The provision re-

quires that:

all agencies of the Federal Government . . . include in every recom-

mendation or report on proposals for legislation and other major

Federal actions significantly affecting the quality of the human envi-

ronment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

852 NATIONAL ENVIRONMENTAL POLICY ACT

17

(ii) any adverse environmental effects which cannot be avoided should

the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man’s environ-

ment and the maintenance and enhancement of long-term productiv-

ity, and

(v) any irreversible and irretrievable commitments of resources which

would be involved in the proposed action should it be implemented.

The provision goes on to require the responsible federal official to con-

sult with and seek comments from other affected agencies. Copies of the

statements and relevant comments must be made public and must accompany

the proposal through the agency review process.

Despite language in NEPA that might be construed otherwise, the Su-

preme Court has held that NEPA does not impose any substantive requirement

on agencies to favor the environment in the agency’s decisionmaking. See

Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980).

Notwithstanding the lack of substantive requirements, NEPA has been the source

of an extremely large number of challenges to agency action, arguing either

that the agency failed to prepare an EIS when NEPA required it or that the EIS

that the agency prepared was inadequate. Even after more than 35 years, agen-

cies frequently lose these suits, with the result that the agency action is enjoined

until the agency fully complies with NEPA’s procedural requirements.

Council on Environmental Quality Role. The Council on Environ-

mental Quality (CEQ), created by title 11 of the Act, is the legal overseer of

NEPA and in its early years was active in shaping NEPA law. Until 2000, it

prepared extensive annual environmental quality reports pursuant to 42 U.S.C.

§4341, which was effectively repealed in that year. The Council took the lead

in developing appropriate procedures for EIS preparation. In President Nixon’s

Executive Order 11,514 (March 5, 1970), issued shortly after NEPA’s pas-

sage, he gave CEQ the authority to issue guidelines to agencies for the prepa-

ration of EIS’s . The CEQ’s original guidelines (36 Fed. Reg. 7724-29, April

23, 1971) were nonbinding but were relied upon by most federal agencies

when promulgating their own procedures. In 1977 President Carter signifi-

cantly expanded CEQ’s authority by giving it the power to issue binding

regulations in Executive Order 11,991 (May 24, 1977). These regulations,

issued on November 28, 1978 (43 Fed. Reg. 55,978-56,007), are codified at

40 C.F.R. Parts 1500-1508. The Supreme Court has since treated these regu-

lations as deserving substantial deference. See Andrus v. Sierra Club, 442

U.S. 347 (1979).

853

NATIONAL ENVIRONMENTAL POLICY ACT

17

The CEQ regulations cover many of the procedural issues that have

emerged in the extensive litigation over the meaning of the Act’s terms. The

regulations provide comprehensive guidance on what constitutes a “major

federal action” requiring an EIS, the preparation of draft, supplemental and

final statements, page limits, recommended format and content (all in 40

C.F.R. Part 1502); the comment process (Part 1503), predecision referral of

interagency disputes to CEQ (Part 1504); integration with agency

decisionmaking (Part 1505); elimination of duplication with state and local

requirements and procedures for filing with EPA (Part 1506); and agency

compliance (Part 1507).

In addition to the regulations, CEQ also provided continuing guidance to

agencies on implementation of NEPA. For example, in 1981 it published the

Memorandum to Agencies Containing Answers to 40 Most Asked Questions

on NEPA Regulations. In April 1981 it issued a Memorandum for General

Counsels, NEPA Liaisons and Participants in Scoping on the subject of “scoping

guidance.” In 1983, after a solicitation of comments on the existing regula-

tions and a two-year review process, the Council published a supplemental

memorandum giving further guidance to agencies. In 1993, it issued a guid-

ance memorandum on the subject of pollution prevention and NEPA. In

1997, it issued two guidance memoranda, one on cumulative effects analysis

under NEPA and the other on considering environmental justice under NEPA.

In 2002, CEQ established a NEPA Task Force to undertake a thorough re-

view of NEPA implementation. The Task Force’s issued its report, Modern-

izing NEPA Implementation, a year later. It contained recommendations

designed to modernize the implementation of NEPA and make the NEPA

process more effective and efficient.

The CEQ also compiles annual data on the number of environmental

impact statements filed by agencies and the trends in NEPA litigation. This

information is available online at: http://ceq.eh.doe.gov/nepa/nepanet.htm.

Originally, under 42 U.S.C. §4342, the CEQ consisted of three members

appointed by the President with the advice and consent of the Senate, one of

whom the President designated as Chairman. However, beginning in 1997,

Congress inserted a provision in annual appropriations acts stating that, not-

withstanding this section of NEPA, the CEQ would consist of one member

appointed by the President with the advice and consent of the Senate, who

should serve as chairman. In 2005, Congress made the change permanent.

Pub. L. No. 109-54, Title III, August 2, 2005, 119 Stat. 543.