National Environmental Policy Act

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 875-965

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NATIONAL ENVIRONMENTAL POLICY ACT

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875

National

Environmental

Policy Act

Citations:

42 U.S.C. §§ 4321–4347 (2012); enacted Jan. 1, 1970, by Pub. L. No.

91-190; 83 Stat. 852. Amended by Pub. L. No. 94-52, § 2, July 3, 1975, 89

Stat. 258; Pub. L. No. 94-83, Aug. 9, 1975, 89 Stat. 424; Pub. L. No. 112-

141, Div. A, Title I, Subtitle C, § 1319, July 6, 2012, 126 Stat. 551.

Lead Agency:

Council on Environmental Quality, The White House, 722 Jackson Place

NW, Washington, DC 20500, (202) 456-6224, http://www.whitehouse.gov/

ceq.

Overview:

The National Environmental Policy Act (NEPA) was the first federal

statute to use the “impact statement” approach in federal regulation. Its pur-

pose is to require federal agencies to analyze and consider the environmental

impact of their actions in an open and public process. The Act also created the

Council on Environmental Quality within the Executive Office of the Presi-

dent.

Environmental Impact Statements. The core of NEPA is found in

section 102(2)(C) (codified at 42 U.S.C. § 4332(2)(C)), which creates the

environmental impact statement (EIS) requirement. The provision requires

that:

all agencies of the Federal Government . . . include in every recom-

mendation or report on proposals for legislation and other major

Federal actions significantly affecting the quality of the human envi-

ronment, a detailed statement by the responsible official on—

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(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should

the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man’s environment

and the maintenance and enhancement of long-term productivity,

and

(v) any irreversible and irretrievable commitments of resources which

would be involved in the proposed action should it be implemented.

The provision goes on to require the responsible federal official to con-

sult with and seek comments from other affected agencies. Copies of the

statements and relevant comments must be made public and must accompany

the proposal through the agency review process.

Despite language in NEPA that might be construed otherwise, the Su-

preme Court has held that NEPA does not impose any substantive require-

ment on agencies to favor the environment in the agency’s decisionmaking.

See Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980).

Notwithstanding the lack of substantive requirements, NEPA has been the

source of an extremely large number of challenges to agency action, arguing

either that the agency failed to prepare an EIS when NEPA required it or that

the EIS that the agency prepared was inadequate. Even after 45 years, agen-

cies frequently lose these suits, with the result that the agency action is en-

joined until the agency fully complies with NEPA’s procedural requirements.

Council on Environmental Quality Role. The Council on Environ-

mental Quality (CEQ), created by title 11 of the Act, is the legal overseer of

NEPA and in its early years was active in shaping NEPA law. Until 2000, it

prepared extensive annual environmental quality reports pursuant to 42 U.S.C.

§ 4341, which was effectively repealed in that year. The Council took the

lead in developing appropriate procedures for EIS preparation. In President

Nixon’s Executive Order 11,514 (Mar. 5, 1970), issued shortly after NEPA’s

passage, he gave CEQ the authority to issue guidelines to agencies for the

preparation of EISs. The CEQ’s original guidelines (36 Fed. Reg. 7724-29

(Apr. 23, 1971)) were nonbinding but were relied upon by most federal

agencies when promulgating their own procedures. In 1977 President Carter

significantly expanded CEQ’s authority by giving it the power to issue bind-

ing regulations in Executive Order 11,991 (May 24, 1977). These regula-

tions, issued on November 28, 1978 (43 Fed. Reg. 55,978–56,007), are codified

at 40 C.F.R Parts 1500–1508 and are contained in the Appendix to this chap-

ter. The Supreme Court has since treated these regulations as deserving sub-

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stantial deference. See Andrus v. Sierra Club, 442 U.S. 347 (1979).

The CEQ regulations cover many of the procedural issues that have

emerged in the extensive litigation over the meaning of the Act’s terms. The

regulations provide comprehensive guidance on what constitutes a “major

federal action” requiring an EIS, the preparation of draft, supplemental and

final statements, page limits, recommended format and content (all in 40

C.F.R Part 1502); the comment process (Part 1503); predecision referral of

interagency disputes to CEQ (Part 1504); integration with agency

decisionmaking (Part 1505); elimination of duplication with state and local

requirements and procedures for filing with EPA (Part 1506); and agency

compliance (Part 1507).

In addition to the regulations, CEQ also provided continuing guidance to

agencies on implementation of NEPA. For example, in 1981 it published the

“Memorandum to Agencies Containing Answers to 40 Most Asked Questions

on NEPA Regulations,” which is also contained in the Appendix to this chap-

ter. In April 1981 it issued a “Memorandum for General Counsels, NEPA

Liaisons and Participants in Scoping” on the subject of “scoping guidance.”

In 1983, after a solicitation of comments on the existing regulations and a

two-year review process, the Council published a supplemental memoran-

dum giving further guidance to agencies. In 1993, it issued a guidance memo-

randum on the subject of pollution prevention and NEPA. In 1997, it issued

two guidance memoranda, one on cumulative effects analysis under NEPA

and the other on considering environmental justice under NEPA. In 2002,

CEQ established a NEPA Task Force to undertake a thorough review of

NEPA implementation. The Task Force’s report, Modernizing NEPA Imple-

mentation, was issued a year later. It contained recommendations designed to

modernize the implementation of NEPA and make the NEPA process more

effective and efficient.

More recently, CEQ has provided guidance on the use of categorical

exclusions (in which agencies may exempt certain actions from NEPA re-

view) and on the use of mitigating measures to avoid a finding of significant

impact on the environment. In addition, in 2010 it issued draft guidance on

how to consider the effects of climate change with respect to federal actions.

On December 18, 2014, a revised guidance document was published for com-

ment. The comment period closed on March 25, 2015.

According to the CEQ website:

This guidance explains that agencies should consider both the poten-

tial effects of a proposed action on climate change, as indicated by

its estimated greenhouse gas emissions, and the implications of cli-