- The Partnership Project’s Protect NEPA campaign is dedicated to defending the National Environmental Policy Act and educating the public about the critical role environmental reviews play in protecting our public health, strengthening government accountability, and empowering local communities. Our campaign works with a coalition of over twenty environmental and civil rights advocacy organizations located in both Washington, DC and on the front lines organizing marginalized communities.
What is NEPA?
- The National Environmental Policy Act (NEPA) requires government agencies to engage in a review process intended to discover any significant environmental and public health impacts before a decision is made or construction begins. For example, if the government wanted to build a toxic waste incinerator in a residential neighborhood, the NEPA review process would likely discover, document, and disclose significant long-term health risks to the local community.
What is NEPA’s Jurisdiction?
- Federal agencies have a responsibility to initiate environmental assessments to determine if the proposed actions will have significant environmental effects on a wide range of actions including issuing regulations, providing permits for private actions, funding private actions, making federal land management decisions, constructing publicly-owned facilities, etc.
- Frequently, private companies will become involved in the NEPA process when they need a permit issued by a federal agency. When a company applies for a permit (for example, to drill for oil in the Arctic), the agency tasked to issue the permit must evaluate the environmental effects of the permit decision under NEPA.
When Does NEPA Apply?
- A NEPA-mandated review must be completed before an agency makes a final decision on a proposed action.
- NEPA does not require the decision-maker to select the most environmentally preferable alternative, but NEPA does require that decision-makers be informed of the environmental consequences of their decisions. Analysis under NEPA should be informed by NEPA’s policy goals which include assuring a safe and healthful environment for future generations.
- NEPA environmental impact assessments may also serve to meet other review requirements, including impacts on endangered species or low-income communities.
Who Oversees NEPA?
- There are three Federal Agencies responsible for regulating NEPA and the environmental review process.
- Primary responsibility is vested in the White House Council on Environmental Quality (CEQ). CEQ oversees implementation of NEPA regulations, which are binding for all federal agencies. CEQ also approves alternative arrangements for compliance with NEPA in the case of emergencies.
- The EPA’s Office of Federal Activities reviews environmental impact statements and some environmental assessments issued by federal agencies. It provides its comments to the public by publishing summaries of them in the Federal Register.
- The third environmental entity involved in the NEPA process is the US Institute for Environmental Conflict Resolution, established in 1998. The Institute helps federal agencies and other affected stakeholders address environmental disputes, conflicts, and challenges through programs and services that provide situation assessments.
- Some large or complex proposals involve multiple federal agencies along with state, local and tribal agencies. If another federal agency has a major role in the proposed action, that agency may be named a “joint lead agency” and share primary responsibility for the management process. Other federal, state, tribal, or local government agencies may also play a role in the decision-making process or provide special expertise regarding a proposed action, but less of a role than the lead agency. In such a case, that agency is called a “cooperating agency.”
What is a Categorical Exclusion (CATEX)?
- The lowest level of analysis is that given to Categorical Exclusions (CATEX). A Categorical Exclusion is a category of actions a federal agency has determined do not individually or cumulatively have a significant effect on the quality of the human environment (e.g., reconstruction of hiking trails, etc.).
- In such cases, neither an Environmental Assessment (EA) nor an Environmental Impact Statement (EIS) is required.
- Categorical Exclusions are based on an agency’s past experiences with a specific kind of action. The agency may have studied the action in previous environmental assessments and found no significant impact on public health or the environment. Agencies develop a list and the justification for each Categorical Exclusion when they develop or revise their NEPA implementing procedures.
- It is important to note that a CATEX is not a waiver or an exemption from NEPA, it is actually one of three types of review. It is simply a category of actions that have previously been reviewed and the agency has determined that, as a class of actions, those activities will not have a significant impact on the environment or human health.
- The vast majority of federal actions subject to NEPA review receive a categorical exclusion.
What is an Environmental Assessment/Finding of No Significant Impact?
If there is uncertainty as to whether a proposed project will have significant effects on public health and the environment (often the case for minor projects), federal agencies prepare a concise, preliminary evaluation of potential consequences called an Environmental Assessment (EA).
The purpose of an Environmental Assessment (EA) is to determine the significance of the environmental effects and to examine alternative means to achieve a federal agency’s objectives. Generally, an Environmental Assessment must include a brief discussion of:
- the need for the proposal
- alternative courses of action for any proposal
- the environmental impacts of the proposed action and alternatives
- a listing of agencies and persons consulted
Often, the environmental assessment will identify ways in which the agency can revise the action to reduce environmental and social impacts.
If the initial assessment demonstrates no significant effects, the agency issues a Finding of No Significant Impact (FONSI) and proceeds with the action without further environmental analysis. Preparation of a detailed Environmental Impact Statement (EIS) is only required for actions where an initial finding indicates that the action “may significantly affect the quality of the human environment.”
Over 99% of federal projects are cleared with either a categorical exclusion or an environmental assessment. In total, the federal government undertakes approximately 50,000 actions every year that are subject to NEPA review, but only 500 draft Environmental Impact Statements are prepared annually. A Federal Highway Administration study found that from 1998 to 2004, no more than 3.5% percent of all proposed transportation projects required a detailed environmental study.
What is an Environmental Impact Statement (EIS)?
Federal agencies prepare an Environmental Impact Statement (EIS) if a proposed major federal action is determined to significantly affect the quality of the human environment. The regulatory requirements for an Environmental Impact Statement are more detailed and rigorous than the requirements for an Environmental Assessment.
The Environmental Impact Statement process begins with the publication of a Notice of Intent (NOI) in the Federal Register, which informs the public of the upcoming environmental analysis, provides basic information about the proposed action and describes how the public can become involved in the EIS preparation.
This Notice of Intent starts the scoping process, which is the period in which the federal agency and the public collaborate to define the range of issues and possible alternatives to be addressed in the EIS. As part of the process, agencies are required to identify and invite the participation of interest persons through a variety of means (e.g., public hearings, video conferencing; formal hearings; workshops, etc.).
The Environmental Impact Statement must consider all reasonable projects alternatives. For all project alternatives that were eliminated, the EIS must briefly discuss the reasons why the alternative was eliminated from consideration. An EIS includes:
- Summary: A summary of the EIS, including the major conclusions, areas of controversy, and the issues to be resolved.
- Table of Contents: Assists the reader in navigating through the EIS.
- Purpose and need statement: Explains the reason the agency is proposing the action and what the agency expects to achieve.
- Alternatives: Consideration of a reasonable range of alternatives that can accomplish the purpose and need of the proposed action.
- Affected environment: Describes the environment of the area to be affected by the alternatives under consideration.
- Environmental consequences: A discussion of the direct and indirect environmental effects and their significance.
- List of preparers: A list of the names and qualifications of the persons who were primarily responsible for preparing the EIS.
- List of agencies, organizations, and persons to whom the EIS were sent.
- Index: The index focuses on areas of reasonable interest to the reader.
- Appendices (if required): Appendices provide background materials prepared in connection with the EIS.
Following publication of the draft Environmental Impact Statement (often referred to as a DEIS), a comment period of no less than 45 days begins. A final Environmental Impact Statement (FEIS) is then published in which the government is required to substantively respond to public comments. Publication of the final EIS begins the minimum 30-day “wait period,” in which agencies are generally required to wait 30 days before making a final decision on a proposed action.
The Environmental Impact Statement process ends with the issuance of the Record of Decision (ROD). The ROD:
- explains the agency’s decision,
- describes the alternatives the agency considered, and
- discusses the agency’s plans for mitigation and monitoring, if necessary
- The EPA is then required to review and provide comments on the adequacy of the analysis and the project’s impact on the environment using a rating system. In the rare case that the EPA deems the Environmental Impact Statement’s analysis unsatisfactory, it is referred to the White House Council on Environmental Quality.
When is a supplement to the EIS required?
- A supplement to a draft or final EIS is required when any of the following occurs:
- An agency makes substantial changes to the proposed action that are relevant to its environmental concerns.
- There are significant new circumstances or information relevant to the environmental effects that have bearing on the proposed action or its impacts.
- If an agency decides to supplement its EIS, it prepares, circulates and files the supplemental EIS in the same fashion as a draft or final EIS.
For more detailed information, please see the “A Citizen’s Guide to NEPA” published by the White House Council on Environmental Quality.