Chapter 14 - § 14.2 • SCOPE OF NEPA

• Jurisdiction: Colorado

§ 14.2 • SCOPE OF NEPA

NEPA applies to "agencies of the Federal government."²⁴ A federal agency's statutory obligation to comply with NEPA is triggered by: (1) "proposals" for (2) "major Federal actions" (3) "significantly" (4) "affecting" (5) "the quality of the human environment."²⁵ If each element is present, an agency must prepare an EIS. An agency may prepare an EA and finding of no significant impact or, if applicable, rely upon a categorical exclusion for actions that do not significantly affect the environment.²⁶ The CEQ has defined each term in its regulations.

§ 14.2.1—Proposal

A "proposal" exists "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."²⁷ A speculative or hypothetical plan does not amount to a "proposal" sufficient to trigger NEPA.²⁸ Proposals, or parts of proposals, that are in effect a single course of action shall be evaluated together in a single NEPA document.²⁹

§ 14.2.2—Major Federal Action

The CEQ regulations define "major Federal action" to include "actions with effects that may be major and which are potentially subject to Federal control and responsibility."³⁰ The "failure to act" can be "major Federal action."³¹ Major Federal action is addressed further in § 14.3.

§ 14.2.3—Significantly

The CEQ has promulgated an extensive definition of the term "significantly" for agencies to use in determining whether an action will significantly affect the environment.³² That definition assesses the environmental significance of an action based on a number of factors concerning context and intensity, including the degree to which the effects are beneficial, highly controversial,³³ uncertain, unknown, precedent setting, related to other actions, or of potential adverse effect to endangered or threatened species.³⁴

§ 14.2.4—Effects

"Effects" and "impacts" are synonyms in the CEQ regulations. There are three kinds of effects under NEPA: direct effects, indirect effects, and cumulative effects.³⁵

Direct effects are "caused by the action and occur at the same time and place."³⁶ Indirect effects "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable."³⁷ Cumulative effects are the effects on the environment that result "from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions."³⁸ Cumulative effects include actions by other federal or non-federal agencies or people, including actions that themselves do not directly

trigger NEPA.³⁹

The difference between direct, indirect, and cumulative effects is illustrated by considering a proposal to dam a river. The direct effects of the dam include its physical presence on the riverbed, and the reservoir of water it creates. The indirect effects of the dam include the effect...