National Environmental Policy Act

AuthorWilliam Funk - Jeffrey S. Lubbers
Policy Act
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,
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-
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
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—
(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,
(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 NEPAs 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 NEPAs
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-
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-

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