Chapter 2 Back to the Basics: An Overview of NEPA's Requirements

• Jurisdiction: United States

Chapter 2 Back to the Basics: An Overview of NEPA's Requirements
Samantha Caravello Kaplan Kirsch & Rockwell LLP Denver, CO
William Mumby Kaplan Kirsch & Rockwell LLP San Francisco, CA

SAMANTHA CARAVELLO is an Associate in the Denver office of Kaplan Kirsch & Rockwell LLP. She is heavily involved in the firm's litigation, administrative, and regulatory practices and focuses on a wide range of environmental and energy issues. Her experience includes representing clients in state and federal court and before state administrative bodies such as the Colorado Air Quality Control Commission. Samantha serves on the Colorado Bar Association's Environmental Law Section Advisory Council and as Vice Chair of the Denver Bar Association's Access to Justice Committee. Prior to joining Kaplan Kirsch & Rockwell, Samantha was a legal fellow at the Environmental Defense Fund and a law clerk for Justice William W. Hood, III of the Colorado Supreme Court. She received her J.D. from Harvard Law School and her B.A. from New York University.

WILLIAM MUMBY is an Associate at Kaplan Kirsch & Rockwell LLP in the firm's San Francisco office. He concentrates on environmental and Native American law and policy matters. Wil advises on a broad range of issues arising from water, energy, transportation, and other development projects, including litigation in federal and California courts. Wil advises on issues arising under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), including technical analyses relating to water resources, air quality, transportation, climate change, noise, and historic and cultural resources. He provides advice to tribal, public agency, nonprofit, and clean energy developer clients on environmental review issues arising under CEQA and NEPA as well as other state and federal environmental statutes. An active member of the firm's Native American law and policy group, Wil helps advise tribal clients on a broad range of environmental, land use, and economic development issues, including fee-to-trust acquisitions. He also advises tribes on strategies to facilitate co-management of natural and cultural resources on public lands with state and federal agencies. Wil graduated from the University of California, Berkeley, School of Law where he specialized in environmental law.

I. Introduction

The National Environmental Policy Act ("NEPA") was signed into law by President Richard Nixon on January 1, 1970 and was the first major environmental law in the United States.¹ NEPA requires that federal agencies consider the environmental impacts of their proposed actions prior to making decisions and that they inform the public about their consideration of environmental consequences.² NEPA is a procedural statute - it does not mandate any particular outcome when an agency action results in environmental impacts; it requires only that those impacts be identified and evaluated.³ Of course, that does not mean NEPA lacks substantive value. Agencies may change their behavior and project decisions in response to the NEPA process, and may commit to legally enforceable requirements to mitigate environmental impacts.

This paper will provide practitioners with an overview of the NEPA process and key NEPA documents.⁴ Part II provides an overview of the sources of authority that guide NEPA compliance and practice. Part III takes the reader through a detailed look at four types of NEPA review and the steps to satisfying each type of review. Within this Part, the paper first discusses the categorical exclusion ("CE"), an agency-specific "categor[y] of actions that normally do not have a significant effect on the human environment, and therefore do not require preparation of an environmental assessment or environmental impact statement."⁵ Second, the paper discusses the environmental impact statement ("EIS"), the most thorough level of NEPA review that includes a detailed discussion of the significant environmental impacts of a proposed agency action.⁶ Third, the paper discusses the environmental assessment ("EA"), a document prepared to evaluate whether a proposed action will result in potentially significant environmental impacts when it appears unlikely to have such impacts or when the significance of the impacts is

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unknown.⁷ Last, the paper discusses supplemental NEPA analysis, which may be necessary when major federal action remains to occur and the agency "makes substantial changes to the proposed action that are relevant to environmental concerns" or there are "significant new circumstances or information relevant to environmental concerns."⁸

II. Sources of NEPA Requirements: Statute, Regulations, Procedures, and Case Law

The NEPA statute is quite broad, applying to all major "Federal actions" undertaken by "Federal agenc[ies]."⁹ The statute itself does not contain many specific substantive requirements;¹⁰ instead, the substantive requirements guiding NEPA compliance are largely derived from different bodies of regulations, agency procedures, and case law.

The overarching regulations governing NEPA compliance across federal agencies are promulgated by the Council on Environmental Quality ("CEQ"), an agency established by the NEPA statute and responsible for implementing NEPA.¹¹ CEQ issued initial guidelines to assist federal agencies with NEPA compliance in 1971,¹² and formal regulations establishing uniform procedures for NEPA compliance in 1978.¹³ In addition to the CEQ regulations, agencies must develop their own NEPA procedures.¹⁴ These procedures must be submitted to CEQ for review and must be "consistent with the CEQ Regulations while reflecting the agency's mandate and mission."¹⁵ Functionally, when agencies, stakeholders, and practitioners discuss NEPA, they are discussing this body of regulations and procedures, not just the statute itself.

Practitioners should note recent and anticipated changes to the CEQ regulations. The regulations were largely unchanged for fifty years following their promulgation in 1978. Then, in July 2020, CEQ adopted comprehensive changes to its NEPA regulations (the "2020 Rule"), in a stated effort to "contribute to greater certainty and predictability in NEPA implementation," and reduce delay.¹⁶ However, in 2021, under a new presidential administration, CEQ was directed to review the 2020 Rule.¹⁷ As a result of this review, CEQ determined that the 2020 Rule might have "the effect of limiting the scope of NEPA analysis, with negative repercussions

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for environmental protection and environmental quality" and might not reflect NEPA's statutory purposes.¹⁸ CEQ announced a phased approach to revising the 2020 Rule to address these concerns. CEQ's "Phase 1" rule was issued in April 2022 with an effective date in May 2022 and amends certain provisions of the 2020 Rule by reverting to the 1978 regulatory approach for those provisions.¹⁹ In Phase 2, CEQ intends to "more broadly revisit the 2020 [Rule] and propose further revisions to ensure that the NEPA process provides for efficient and effective environmental reviews that are consistent with the statute's text and purpose," among other stated objectives.²⁰ As of the writing of this paper, CEQ has not yet issued a proposed Phase 2 rule. CEQ has extended the deadline for agencies to revise their NEPA procedures to ensure consistency with revised CEQ regulations so that agencies do not have to revise their procedures before CEQ completes its revisions.²¹ This paper will discuss CEQ's NEPA regulations and agency procedures as they presently exist,²² but practitioners are advised to remain up to date regarding further revisions to regulations and procedures.

Of course, regulations and procedures can't account for every situation that may arise during an agency's NEPA review. Agency NEPA decisions involve a good deal of discretion and judgment, and those decisions often end up being litigated. Over time, this has generated a body of NEPA case law - discussed where appropriate below - that also fills in the requirements of what is expected of agencies (and stakeholders) throughout the NEPA process. Agencies are naturally aware of this case law and may also alter their processes accordingly.

III. NEPA Documents and the NEPA Process

This Part will discuss four types of NEPA review, using this discussion to detail the key NEPA documents, their required elements, and the steps to conducting a NEPA analysis.

First, before any NEPA review begins, it must be determined whether NEPA applies. NEPA applies to "Federal actions" undertaken by "Federal agenc[ies]."²³ Current CEQ regulations identify certain threshold questions agencies should use to determine whether NEPA applies, including "[w]hether the proposed activity or decision is a major Federal action."²⁴

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Major federal action is defined as "an activity or decision subject to Federal control and responsibility."²⁵

Given this broad definition, major federal actions include not only actions directly taken by federal agencies, but also private actions involving some level of federal agency assistance or approval, including funding.²⁶ Still, the definition is not limitless. The regulations exclude from the definition of "major Federal action" those "[a]ctivities or decisions that are non-discretionary and made in accordance with the agency's statutory authority"; "[a]ctivities or decisions that do not result in final agency action"; and private projects that may involve minimal federal funding or involvement where "the agency does not exercise sufficient control and responsibility over the outcome of the project."²⁷

For example, in Sierra Club v. U.S. Army Corps of Engineers, the court determined federal agencies "[were] not required to conduct NEPA analysis of the entirety of the [oil] pipeline [at issue], including portions not subject to federal control or permitting."²⁸ The agencies' regulatory actions "were limited to discrete geographic segments," and they...