Chapter §1.4 When Does NEPA Apply?

• Jurisdiction: Washington

§1.4 WHEN DOES NEPA APPLY?

As a threshold matter, it is necessary to determine whether the requirements of NEPA apply to a federal agency action. Section 102(2)(C) of NEPA requires all federal agencies to prepare an EIS for every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. §4332(2)(C). While this provision establishes the EIS requirement, it also serves to define when NEPA applies to federal actions and provides the basis for the environmental review process that agencies conduct pursuant to NEPA. The terms used in this statutory provision are defined in the CEQs regulations and further interpreted by the federal courts.

(1) Proposal

NEPAs environmental review requirements are triggered by a federal agencys proposal for legislation or action. The CEQ regulations state that a [p]roposal exists at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated. 40 C.F.R. §1508.23.

Determining when a federal proposal is sufficiently definite to warrant NEPA review is not always easy. The U.S. Supreme Court has stated that mere contemplation of an action does not necessarily require the preparation of an EIS. Kleppe v. Sierra Club, 427 U.S. 390, 404, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976). For example, courts have found that an EIS may not be required for feasibility studies or policy statements that do not call for any specific actions. E.g., Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998). Conversely, the NEPA review process typically will apply when a federal agency is taking a final action, such as promulgating regulations, permitting projects, or implementing operating agreements. E.g., 40 C.F.R. §1502.4(b); Churchill Cnty. v. Norton, 276 F.3d 1060 (9th Cir. 2001), cert. denied, 537 U.S. 822 (2002). However, for phased projects, subsequent phases may be subject to review for environmental impacts at the same time earlier phases are reviewed, even though no specific proposal has been advanced for the latter phases. See the discussion of programmatic EISs in §1.6(2)(a), below.

(2) Major federal action

The NEPA environmental review requirements only apply to proposals for federal action. The term major federal action is specifically defined by the CEQ, 40 C.F.R. §1508.18, to include actions that may be major and that potentially are subject to federal control and responsibility. The word major reinforces, but does not have a meaning independent of, significantly [affecting the quality of the human environment]. Id. The meaning of significantly for NEPA purposes is discussed in detail in §1.5(3), below.

Although the CEQ does not specifically define in the regulations what constitutes federal action, the CEQ does include a list of the categories in which federal actions tend to fall. The regulations state that these categories include the following:

(1) Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act ...; treaties and international conventions or agreements; formal documents establishing an agencys policies which will result in or substantially alter agency programs.

(2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based.

(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

(4) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.

40 C.F.R. §1508.18(b).

The courts have examined when an action will be considered federal. As a general rule, whenever federal action is a prerequisite to an action that might affect the environment, the action is sufficiently federal to trigger the applicability of NEPA. See, e.g., Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) (issuance of incidental take permit under Endangered Species Act); Natural Res. Def. Council, Inc. v. U.S. Nuclear Reg. Commn, 539 F.2d 824 (2d Cir. 1976), cert. granted sub nom. Allied Gen. Nuclear Servs. v. Natural Res. Def. Council, Inc., 430 U.S. 944 (1977), and vacated on other grounds, 434 U.S. 1030 (1978) (interim commercial licensing of plutonium in nuclear reactors). It is clear that NEPA was designed to cover almost every form of significant federal activity. Chelsea Neighborhood Assns v. U.S. Postal Serv., 516 F.2d 378, 382 (2d Cir. 1975). Direct federal financial involvement, in the form of cash grants, loans, or mortgage insurance, may also amount to major federal action. E.g., Homeowners Emerg. Life Prot. Comm. v. Lynn, 541 F.2d 814 (9th Cir. 1976) (per curiam).

A more difficult question involves determining when nonfederal actions are subject to NEPAs environmental review requirements. The CEQ regulations indicate that federal actions include actions ... which are potentially subject to Federal control and responsibility. 40 C.F.R. §1508.18. In assessing whether nonfederal actions are subject to NEPA, courts will typically undertake a fact-specific inquiry to determine the extent of the federal approval required for the project. See, e.g., Rattlesnake Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095 (9th Cir. 2007) (undertaking fact-specific inquiry of creation and implementation of citys wastewater facilities plan). Courts have also held that NEPA does not apply when federal control is marginal or insufficient for a project. E.g., Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (U.S. Fish and Wildlife Services advice to lumber company on avoiding takings under Endangered Species Act did not trigger NEPA); Almond Hill Sch. v. U.S. Dept of Agric., 768 F.2d 1030 (9th Cir. 1985) (federal review of states beetle eradication program does not trigger NEPA). For example, courts will examine the amount of federal funding and the extent of federal involvement. E.g., Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) (approval of notice mine). The federal agency must also retain power, authority, or...