Agriculture, Food, and the National Environmental Policy Act
| Author | William S. Eubanks II |
| Pages | 207-222 |
Page 207
Chapter 12
Agriculture, Food, and the National
Environmental Policy Act
Will iam S . E uba nks II
The National Environmental Policy Act (NEPA)1 is distinct from its statutory counterparts because it
imposes only procedural requirements. Nonetheless, NEPA constitutes a comprehensive regulatory
scheme that “promotes its sweeping commitment to ‘prevent or eliminate damage to the environ-
ment . . .’ by focusing Government and public attention on the environmental eects of proposed agency
action.”2 For more than four decades, environmentalists have invoked NEPA to ensure public involvement
in federal agency decisionmaking and ultimately to guarantee that well-informed decisions are made before
their impacts permanently alter the status quo.3 Unlike many of the environmental statutes discussed in
Chapters 8-11, NEPA is not directly applicable to private action because its statutory obligations pertain
only to federal agencies.
However, as this chapter explains, the activities of private actors, including food cultivation and distri-
bution, frequently intersect with the NEPA process through progra mmatic or site-specic actions autho-
rized by federal agencies. is chapter provides an overview of NEPA, its implementing reg ulations, and
the diverse ways in which NEPA is implicated by agriculture a nd the food system.
A. NEPA’s Statutory and Regulatory Framework
Despite being a procedural statute, NEPA is complex, as illustrated by the litany of cases where the U.S.
Supreme Court and lower courts have attempted to interpret and apply its requirements to fact-specic
scenarios.4 Accordingly, the following is an explanation of the framework in which federal decisions subject
to NEPA operate, and the mandates that apply in such contexts.
1. Background
When it enacted NEPA in 1969, the U.S. Congress intended the statute to serve as “our basic national
charter for protection of the environment.”5 is lofty mandate is carried out through rigorous procedural
requirements described in NEPA itself or in the stat ute’s implementing regulat ions promulgated by the
Council on Environmental Quality (CEQ). e explicit purpose of NEPA and the procedures it triggers
is to “insure that environmental information is available to public ocials and citizens before decisions are
made and before actions are taken.”6 As the CEQ explains in its regulations, “NEPA’s purpose is not to
generate paperwork—even excellent paperwork—but to foster excellent action. . . . [ by] help[ing] public
1. 42 U.S.C. §§4321-4370f.
3. William S. Eubanks II, Damage Done? e Status of NEPA After Winter v. NRDC and Answers to Lingering Questions Left Open by the Court,
33 V. L. R. 649, 649 (2009).
4. For a more detailed discussion of NEPA case law, see D R. M, NEPA L L (2d ed. 2011).
5. 40 C.F.R. §1500.1(a); see also 42 U.S.C. §4321 (declaring “a national policy which will encourage productive and enjoyable harmony between
man and his environment; to promote eorts which will prevent or eliminate damage to the environment and biosphere and stimulate the
health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation”).
6. 40 C.F.R. §1500.1(b).
Page 208 Food, Agriculture, and Environmental Law
ocials make decisions that are ba sed on understanding of environmental consequences, and take actions
that protect, restore, and enhance the environment.”7
Because NEPA is an action-forcing statute aimed solely at better decisions by public ocia ls,8 NEPA
obligations only attach to proposed decisions of federal agencies, although such decisions frequently include
permitting, licensing, f unding, or otherwise authorizing activities of private actors. In evaluating any pro-
posed decision, a federal agency must rst determine whether NEPA review is required.9 Although NEPA
review is typically required, agencies are exempted in three distinct scenarios: (1) when an agency deci-
sion will have no discernable impact on the natural environment; (2) when NEPA compliance would be
inconsistent with, or duplicative of, an agency’s other statutory mandates;10 or (3) when a recurring type of
agency decision has been determined by t he agency to result in such minor and insignicant impacts that
the agency has invoked a “categorical exclusion” to exclude such action from NEPA review.11 Outside of
these three narrow exceptions, federal agencies must ad here to several procedures to comply with NEPA,
or face potential lawsuits by environmentalists or private parties aected by any alleged failure to satisfy
NEPA’s procedural requirements.
2. An Environmental Impact Statement or an Environmental Assessment?
Agencies are encouraged to “apply NEPA early in the process” in order to “insure that planning a nd deci-
sions reect environmental values, to avoid delays later in the process, and to head o potential conicts.”12
Early in the process of considering a potential agency action, the rst step at which NEPA enters the pic-
ture is when the agency determines from the outset that a detailed Environmental Impact Statement (EIS)
is necessary, or when the agency prepares a less detai led Environmental Assessment (EA) if it is unsure
whether an EIS is required under the circumstances to determine if there is a need for an EIS.13 In the latter
scenario, an agency prepares a brief EA, with public participation allowed “to the extent practicable,” for
the purpose of analyzing the environmental impacts of the proposed action.14
e CEQ describes an E A as “a concise public document for which a Federal agency is responsible,” in
which an a gency “[s]hall include brief discussions of the need for the proposal, of alternatives as required
by [NEPA], of the environmental impacts of the proposed action a nd alternatives, and a listing of agen-
cies and persons consulted.”15 If the EA suggests that the a nticipated environmental impacts of the federal
decision under review will “signicantly aect . . . the quality of the human environment”—a term of art
under NEPA described in more detail below—an EIS is required.16 If, however, the EA suggests that the
environmental eects w ill be insignicant as that term is understood pursuant to NEPA, the agency is
authorized to forgo preparing an EIS and must instead issue its EA to the public along w ith a nding of
no signicant impact (FONSI) to explain to the public the agency’s rationale for not preparing an EIS.17
Once the E A and FONSI are issued, the agency may proceed with implementing the u nderlying agency
decision it analyzed in the E A.
In the event that an agency determines from the outset t hat an EIS is necessary, or alternatively in the
event that an EA suggests that the eects of a pa rticular decision will be signicant thus necessitating
preparation of an EIS, the agency must satisfy several regulatory hurdles to meet NEPA’s EIS requirement.
7. Id. §1500.1(c).
8. Id. §1500.1(a).
9. See id. §1500.3 (explaining that NEPA is “binding on all Federal agencies . . . except where compliance would be inconsistent with other
statutory requirements”); 42 U.S.C. §4333 (noting that “[a]ll agencies” must conform with NEPA’s mandates). It is important to note that
NEPA review is limited to “major Federal actions,” 42 U.S.C. §4332(2)(C), which CEQ has dened as those “which are potentially subject to
Federal control and responsibility.” 40 C.F.R. §1508.18. e limitation to “major” actions has no independent meaning from “signicance”
under NEPA, which is explained below in detail.
10. See 40 C.F.R. §1500.3.
11. Id. §1508.4 (dening “categorical exclusion” as “a category of actions which do not individually or cumulatively have a signicant eect on
the human environment and which have been found to have no such eect . . . and for which, therefore, neither an environmental assessment
nor an environmental impact statement is required”).
12. Id. §1501.2.
13. See id. §§1501.3-1501.4.
14. Id. §1501.4(b).
15. Id. §§1508.9(a)-(b).
16. 42 U.S.C. §4332(2)(C).
17. 40 C.F.R. §1508.13; 40 C.F.R. §1501.4(e).
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