1. The National Environmental Policy Act
An Overview
Horst G Greczmiel
Associate Director for NEPA Oversight
Council on Environmental Quality
November 2013 1

2. History and Purpose of NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
Senator Jackson summarized its purposes as:
to establish a national policy on the environment;
to authorize expanded research and understanding of our natural resources, the environment, and human ecology; and
to establish in the Office of the President a properly staffed Council of Environmental Quality Advisors.
April 16, 1969, hearing introduced the concept of an environmental impact statement (referred to as a “finding”) and the need for an action-forcing provision to obtain compliance from federal agencies.

3. Senator Henry M. Jackson
“As a nation, we have failed to design and implement a national environmental policy which would enable us to weigh alternatives, and to anticipate the undesirable side effects which often result from our ongoing policies, programs and actions.” April 16, 1969

4. 1969 Santa Barbara Oil Spill

5. Public Reaction Protest following the 1969 Santa Barbara Oil Spill

6. Cuyahoga River Fires At least a dozen fires occurred on
the Cuyahoga River since The
most famous fire was in 1969.

7. Clearcutting in Olympic National Forest

8. Air Pollution Smog in Houston, TX

9. Sen. Muskie obtained amendments for future air and water standards (sec. 104) and changed “finding” requirement to a “detailed statement” with alternatives and consultation required.
Conference committee rejected limitation of federal agency responsibility – required compliance with NEPA’s action-forcing provisions “to the fullest extent possible.”
President Nixon opposed, but signed NEPA as the first statute of the decade.
“The nineteen-seventies absolutely must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters and our living environment. It is literally now or never.” Richard M. Nixon, January 1, 1970

10. Congress Passes NEPA
Congress enacted the National Environmental Policy Act in 1969 by overwhelming bipartisan majorities.
The House of Representatives adopted NEPA by a vote of 372 to CONG. REC. 19,013 (1969).
The Senate passed NEPA by voice vote without recorded dissent. 115 CONG. REC. 26,590 (1969).

11. NEPA’s Purpose
The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. Sec. 2 [42 USC § 4321]

12. Implementation
Study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.
Recognize the global character of environmental problems and assist in efforts to prevent the decline in the quality of the world’s environment.
Share environmental information and advice with States, counties, cities, institutions and individuals.
Initiate and utilize ecological information in the planning and development of natural resources.

13. Role of the Council on Environmental Quality Policy Coordination
Developing and recommending to the President “national policies to foster and promote the improvement of environmental quality” U.S.C. 4344(4).
Assisting “in coordinating among the Federal departments and agencies those programs and activities which affect, protect, and improve environmental quality” 42 U.S.C. 4372(d)(5).
Assisting the Federal departments and agencies in the development and interrelationship of environmental quality criteria and standards established through the Federal Government U.S.C. 4372(d)(6).

14. Implementation Provisions
all agencies of the Federal Government shall -- utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment Section 102(2)(A) 42 United States Code §4332(2)(A)

15. Implementation “All federal agencies shall: . . .
include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
the environmental impact of the proposed action;
any adverse environmental effects which cannot be avoided should the proposal be implemented;
alternatives to the proposed action;
the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”
Section 102(2)(C), 42 United States Code §4332(2)(C)

16. Role of CEQ NEPA Reviews
Responsible for promulgation and interpretation of NEPA regulations
A. “Substantial deference” by the Supreme Court.
B. Role set out in regulations:
1. Review of agency NEPA procedures
2. Designation of lead agency
3. Alternative arrangements for supplemental EISs
4. Alternative arrangements for emergencies
C. Dispute resolution
– Referral process, 40 CFR 1504
– Informal coordination

17. Objectives:
Disclose, analyze, and consider environmental information when making decisions.
Inform the public of potential impacts and alternatives and involve the public in decision making. 9

18. When does NEPA apply?
“major Federal actions significantly affecting the quality of the human environment”
Federal decisions
policies, plans, programs and projects
Significantly: context and intensity
affecting: “will or may have an effect”
The human environment: the natural and physical environment and the relationship of people to that environment 10

19. Hierarchy Of NEPA Analyses and Documentation Processes:
Categorical Exclusion (CE / CATEX)
Environmental Assessment (EA)
Environmental Impact Statement (EIS) 11

20. Categorical Exclusion (CE / CATEX) 40 CFR 1508.4
Categories of actions
Shown to not have significant effects
Administratively promulgated
Subject to Extraordinary Circumstances - when a normally excluded action may have significant environmental effect
Documentation? 12

21. Environmental Assessment (EA) 40 CFR 1508.9
Concise document
Provides evidence and analysis for determining whether to prepare an EIS
Aids in complying with NEPA when an EIS is not required.
Facilitates preparation of EIS if one is necessary. 13

22. Requirement Elements of an EA
Brief discussion of the need for the proposal
Reasonable alternatives to recommended courses of action for any proposal involving conflicts concerning use of natural resources
Anticipated environmental impacts of the proposed action and alternatives
List of agencies and individuals consulted 14

23. Finding of No Significant Impact 40 CFR 1508.13
Briefly presents reasons why action will not have a significant effect on the human environment.
Attached to, or includes summary of, the EA. 15

24. Finding of No Significant Impact
Available for 30 day public review if:
proposed action is, or is closely similar to, an action which normally requires an EIS; or
the nature of the proposed action is without precedent.
(40 CFR 1504(e)(2))

25. EA Challenges
Result is Finding Of No Significant Impact (FONSI) or Notice of Intent (NOI) to prepare EIS
Mitigated FONSIs need Follow-up
Involve the public to the extent practicable – Agencies have discretion to determine how

26. Environmental Impact Statement (EIS) 40 CFR 1502.3
Comprehensive action-forcing device for actions with significant environmental effects
Includes:
impacts (direct, indirect and cumulative),
actions (connected, cumulative and similar)
reasonable alternatives (no-action)
Procedural steps focus on issue identification and analysis. 16

27. EIS: The Process Steps Notice of Intent Scoping
Draft Environmental Impact Statement
Final Environmental Impact Statement
Record of Decision
Supplemental Environmental Impact Statement 17

28. Notice of Intent 40 CFR
Describe proposed action and alternatives
Describe proposed scoping process
State name and address of agency contact 18

29. Scoping 40 CFR
The early and open process to determine scope of issues and identify the significant issues related to a proposed action
Invite affected Federal, State and local agencies, affected Indian Tribes, and other interested parties to participate
Determine the scope of the analysis and the significant issues
Allocate responsibilities among all government agencies
Develop the structure and process 19

30. Draft EIS 40 CFR 1502.9 Cover sheet, 40 CFR 1502.11
Summary, 40 CFR
Table of contents
Purpose and need for the proposed action, CFR
Alternatives including no-action and the proposed action, 40 CFR
Affected environment, 40 CFR
Environmental consequences, 40 CFR
List of prepares, 40 CFR
Distribution list, refer to 40 CFR
Index
Appendices, 40 CFR 21

31. Draft EIS
Draft EIS (DEIS) is published and circulated for review and comment for at least 45 days
Federal agencies with jurisdiction or special expertise relevant to any impact are expected to comment
Evaluate the comments received 22

32. Final Environmental Impact Statement (FEIS)
Take substantive comments into account, include them and responses in the FEIS.
Distribute to any person, organization or agency that submitted substantive comments.
EPA publishes NOA to begin 30 day review (“cooling off”) period. 23

33. Record of Decision The decision Alternatives considered
Environmentally preferred alternative
Factors balanced in making decision
economic and technical
agency statutory mission
national policies 25

34. Record of Decision
Were all practicable means to avoid or minimize harm adopted, and, if not, why not.
Describe applicable enforcement and monitoring programs. 26

35. EIS Timeline NOI Scoping
Draft EIS (DEIS) is published for review and comment for at least 45 days
Final EIS (FEIS) is published for review for 30 days
Final Decision is no sooner than 90 days after publishing DEIS or 30 days after publishing FEIS

36. Supplemental Environmental Impact Statement 40 CFR 1502.9(c)
Supplement DEIS or FEIS if:
substantial change in the proposed action
significant new circumstances or information
Supplements are prepared in the same manner as the DEIS or FEIS, except that scoping isn’t required 27

37. Programmatic Documents 40 CFR 1502.20; 1508.18
Prepared for major program, plan or policy
Often followed by tiering to site specific EISs or EAs prepared at subsequent decision stages
Stepped approach to analysis
Incorporates previous findings 28

38. Classified actions and information
Does not relieve the agency of the requirement to assess and document environmental impacts
Does impact (limit) the role that the public plays - other credentialed agency personnel may review 29

39. Role of EPA
Review and Comment on Environmental Impact of Proposed Legislation, Authorized Construction, Proposed Regulations, or any other Major Federal Agency Action
(Section 309, Clean Air Act)
Office of Federal Activities Files EISs & Publishes Notices of Availability 8

40. Role of U.S. Institute
Provides Environmental Conflict Resolution assistance to the agencies
Third party neutral services supplement our informal conflict resolution efforts
CEQ must concur when 2 or more agencies are involved

41. The Value of NEPA The CEQ Regulations Perspective:
NEPA's purpose is not to generate paperwork--even excellent paperwork--but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.

42. The Value of NEPA The Practical Perspective
Manage the Environmental Aspects to Accomplish Agency Mission and Goals, and serve the Public Interest
Integrate the requirements of NEPA with other planning and environmental review procedures required by other Federal, Tribal, state or local laws or by agency practice so that all permitting and review processes are integrated and not duplicative.

43. Final Thoughts on NEPA Process
Commence the NEPA process at the earliest possible time – emphasis is on early, up-front engagement
NEPA review must be completed before deciding whether and how to proceed
making any irreversible or irretrievable commitments of resources,
taking actions that would have an environmental impact
taking actions that would limit the choice of reasonable alternatives. 30

44. Questions?