The Administrative Process Under NEPA

AuthorNicholas C. Yost
Pages9-24
Page 9
II. The Administrative Process Under NEPA
Introduction
NEPA’s administrative process is most easily understood when it is examined chronologically. Because the
EIS is the most conspicuous part of the process,1 the following discussion is organi zed chronologically by
reference to the EIS. e discussion rst covers prestatement procedures—early planning, followed by the
decision on whether and when an EIS is required. It then proceeds through preparation of the statement,
and nally describes post-statement procedures. is approach parallels the organization of the CEQ regu-
lations, which trace the NEPA administrative process chronologically from agency planning,2 through EIS
preparation,3 to commenting4 and referrals of environmentally unsatisfactory projects to the CEQ,5 and
nally to agency decisions and their implementation.6
Other procedural requirements are also summarized throughout the discussion, for while litigation
has concentrated la rgely on the EIS requirement and on the requirement of considering alternatives in
less detail in EAs,7 the administrative process shaping all federa l agency activity in light of environmental
considerations is pervasive. CEQ’s NEPA regulations encapsulate the various procedural requirements, in
large part codif ying case law and the administrat ive experience of N EPA’s early years. ose regulations
discuss NEPA’s purpose,8 provide uniform terminology,9 make clear what agencies must do to comply
with NEPA,10 and summarize various other NEPA requirements.11 roughout the analysis of NEPA’s
administ rative process, it is important to remember that a ll of NEPA’s procedural re quirements must be
strictly obser ved.12
It is also useful to remember that the procedural requirements are to be interpreted in light of NEPA’s
purposes.13 e procedures of §102 are, after all, merely means of carr ying out the policies of §101.14 Ulti-
1. 42 U.S.C. §4332(2)(C), ELR S. NEPA §102(2)(C). While NEPA §102(2)(E) also requires agencies to consider alternatives, inde-
pendent of the requirement that they prepare EISs, it is the EIS process that has occasioned the bulk of the litigation under NEPA. 42
U.S.C. §4332(2)(E), ELR S. NEPA §102(2)(E).
2. 40 C.F.R. pt. 1501.
3. Id. pt. 1502.
4. Id. pt. 1503.
5. Id. pt. 1504.
6. Id. pt. 1505.
7. Id. §1508.9.
8. Id. pt. 1500.
9. Id. pt. 1508.
10. Id. pt. 1507.
11. Id. pt. 1506.
12. Calvert Cli s Coordinating Comm., Inc. v. Atomic En ergy Comm’n, 449 F.2d 1109, 1112, 1 ELR 20346, 20347 (D.C. Cir.
1971). e NEPA regulations do caution that “trivial violations” are not intended to give rise to independent causes of action. 40 C.F.R.
§1500.3.
13. See generally 40 C.F.R. pt. 1500.
14. See NEPA §102(1), 42 U.S.C. §4332(1) (“the policies, regulations, and public laws of the United States shall be interpreted and ad-
ministered in accordance with the policies set forth in this Act . . .”). 40 C.F.R. §1500.1. e CEQ regulations stress that the President,
federal agencies, and the courts share responsibility for enforcing the Act so as to achieve the substantive requirements of §101. Id. §1500.1(a).
Page 10 NEPA Deskbook
mately, the regulations caution that “it is not better documents but better decisions that count.”15 NEPA’s
purpose is “not to generate paperwork—even excellent paperwork—but to foster excellent action.”16
Above all, it should be stressed that although the Act forces decisionmakers to pay heed to environmen-
tal factors, CEQ’s NEPA regulations are also designed to reduce paperwork17 and delay.18 Implementation
of NEPA’s administrative procedures must be sensitive to these t wo goals.19
Prestatement Procedures
Procedures for Determining Whether an EIS Is Required
e NEPA process begins with agency planning20 and requires that environmental considerations be inte-
grated into t hat planning.21 CEQ’s NEPA regulations give agencies detailed guidance on how to accom-
plish this integration.22 ey also provide direction for situations in which an applicant, rather than a
federal agency, is developing a proposal.23
Once an agency begins to plan an action, it must determine whether it must complete an EIS on the
proposed action. is threshold determination is governed by NEPA, CEQ’s NEPA regulations, and the
agency’s own procedures. Agency actions can be divided into three categories.24 First, agency procedures
may provide for “categorical exclusions”25 of categories of actions that individually or cumulatively do
not have signicant eects on the environment.26 Since actions in these categories do not require EISs,
the agency may simply proceed with them.27 Second, agency procedures may specify ca ses that normally
do require EISs; in such cases, the agency undertakes the process lead ing to EIS preparation.28 ird, an
agency may not have decided in advance whether a given t ype of action requires an EIS. In such a situa-
tion—the occasion for both disputes and litigation—the agency is to prepare an EA before proceeding.29
While CEQ’s NEPA regulations set out the minimum requirements for considering environmental
impacts, NEPA always permits agencies to do more if they choose. us, if a situation is categorically
excluded, an agency could decide to prepare an E A or EIS anyway. Similarly, if an EA would in itially suf-
ce, the agency could nonetheless undertake an EIS directly without rst preparing an EA. Agencies may
do this to address or avoid controversy, or when they genuinely desire the additional environmental analysis
that more complete documentation would provide. Conversely, once an agency has completed its “action,”
NEPA imposes no ongoing obligation to continue to document environmental impacts.30
e Categorical Exclusion. As noted above, the use of categorical exclusions enables an agency, in
advance of the subject action, to adopt procedures that provide that actions that individually and
15. 40 C.F.R. §1500.1(c).
16. Id.
17. Id. §1500.4.
18. Id. §1500.5.
19. See Exec. Order No. 11991; see the CEQ m emorandum on ecient and timely environmental revi ews, which appears as App. 2 6 to
this Deskbook.
20. 40 C.F.R. pt. 1501.
21. Id. §1501.1(a).
22. Id. §1501.2.
23. Id. §1501.2(d).
24. Of course, for NEPA to apply, there must be an underlying “action.” See Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d
1008, 1022 (9th Cir. 2012) (NEPA doesn’t apply to routine annual reporting); Minard Run Oil Co. v. U.S. Forest Services, 670 F.3d
236, 242 (3d Cir. 2011) (in a split estate context, NEPA does not apply to notice to proceed with respect to privately owned mineral
rights); but see Karuk Tribe v. U.S. Forest Service, 681 F.3d 1006, 1021-22 (9th Cir. 2012) (en banc) (Court construes “agency action”
broadly in Endangered Species Act context.).
25. 40 C.F.R. §1507.3(b)(2)(ii); see Sierra Club v. Bosworth, 510 F.3d 1016, 1027 (9th Cir. 2007) (allowing challenge to categorical exclusion);
Wong v. Bush, 542 F.3d 732, 737 (9th Cir. 2008) (if categorically excluded, EIS requirements inapplicable).
26. 40 C.F.R. §1508.4.
27. Id. §1501.4(a)(2). See infra notes 30-33 and accompanying text.
28. 40 C.F.R. §1507.3(b)(2)(i); see id. §§1501.3(a), 1501.4(a)(1).
29. Id. §§1501.4(b), 1508.9.
30. Norton v. Southern Utah Wilderness Alliance, 124 S.Ct. 2373, 2384-85 (2004). Of course, if the criteria for a supplemental EIS are
met (40 C.F.R. §1502.9(c)) or if ongoing monitoring or mitigation has been provided (40 C.F.R. §§1505.2, 1505.3), then the agencies’
duties are ongoing.

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