Chapter 11 - § 11.6 • NATIONAL ENVIRONMENTAL POLICY ACT

• Jurisdiction: Colorado

§ 11.6 • NATIONAL ENVIRONMENTAL POLICY ACT

• 42 U.S.C. § 4331

The National Environmental Policy Act (NEPA) requires evaluations of proposed decisions and aspects of the environment, evaluations that must be completed prior to the agency making its decision on a project. NEPA is triggered for the "major federal actions affecting the quality of the human environment."¹⁰¹ A major federal action occurs if the project is planned on federal lands, including easement across federal lands, or requires a federal permit or approval.

An environmental impact statement (EIS) must be prepared by the responsible federal agency prior to its decision. An EIS must address:

1) Environmental impacts of the proposed action;
2) Unavoidable adverse impacts;
3) Alternatives to the proposed action;
4) Short-term and long-term uses of the environment; and
5) Irreversible and irretrievable commitments of resources.¹⁰²

For federal actions that are not major, or have limited environmental impacts, the federal agency may prepare an Environmental Assessment (EA) or abbreviated evaluation of the environmental impacts of the proposed action. The federal agency's NEPA evaluation, whether an EIS or EA, must be released for public comment and, those comments considered, before the agency makes its final decision.

Although federal decisions are often litigated for alleged NEPA deficiencies, the court's role is only "to insure that the agency has considered the environmental consequences."¹⁰³ The scopes of EIS have been questioned. NEPA rules require that the EIS address all cumulative impacts, including all "connected" actions. Actions are considered "connected" if the action will trigger other actions subject to NEPA, cannot proceed unless other actions occur, or are interdependent on the larger action.¹⁰⁴ A nonprofit organization challenged the Federal Transit Administration's decision approving the modifications to transfer Denver's Union Station to a multi-modal transportation center.¹⁰⁵ The plaintiff's claims that those private developments on private lands, funded completely by private funding and...