Difference between revisions of "National Environmental Policy Act"

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(Overview)
(Overview)
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'''Lead Agency:'''
 
'''Lead Agency:'''
  
[https://www.whitehouse.gov/ceq/ Council on Environmental Quality]  
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[https://www.whitehouse.gov/ceq/ Council on Environmental Quality]
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[https://ceq.doe.gov/ NEPA.gov]  
  
 
==Overview==
 
==Overview==
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===Environmental Impact Statements===  
 
===Environmental Impact Statements===  
  
The core of NEPA is found in section 102(2)(C) (codified at 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332(2)(C)]), which creates the environmental impact statement (EIS) requirement. The provision requires that: "all agencies of the Federal Government . . . 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—(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."
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The core of NEPA is found in section 102(2)(C) (codified at 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332(2)(C)]), which creates the environmental impact statement (EIS) requirement. The provision requires that: <blockquote>all agencies of the Federal Government . . . 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—(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.</blockquote>The provision requires the responsible federal official to consult 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.
 
 
The provision goes on to require the responsible federal official to consult 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 Supreme Court has held that NEPA does not impose any substantive requirement on agencies to favor the environment in the agency’s decisionmaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep444/usrep444223/usrep444223.pdf 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, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements.
 
Despite language in NEPA that might be construed otherwise, the Supreme Court has held that NEPA does not impose any substantive requirement on agencies to favor the environment in the agency’s decisionmaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep444/usrep444223/usrep444223.pdf 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, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements.
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===Council on Environmental Quality Role===
 
===Council on Environmental Quality Role===
  
The CEQ, created by title 11 of NEPA, 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, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], (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 binding regulations in Executive Order 11,991, ''Relating to Protection and Enhancement of Environmental Quality'', (May 24, 1977). These regulations, issued on November 28, 1978 (43 Fed. Reg. 55,978–56,007), are codified at 40 C.F.R Parts 1500–1508. The Supreme Court has since treated these regulations as deserving substantial deference. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep442/usrep442347/usrep442347.pdf Andrus v. Sierra Club], 442 U.S. 347 (1979).
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The CEQ, created by title 11 of NEPA, is the legal overseer of NEPA and was active in shaping NEPA law in its early years. Until 2000, it prepared extensive annual environmental quality reports pursuant to 42 U.S.C. § 4341, which was effectively repealed in that year. CEQ took the lead in developing appropriate procedures for EIS preparation. In Executive Order 11,514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], issued shortly after NEPA’s passage, President Nixon 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 binding regulations in Executive Order 11,991, ''Relating to Protection and Enhancement of Environmental Quality'', (May 24, 1977). These regulations, issued on November 28, 1978 (43 Fed. Reg. 55,978–56,007), are codified at [https://www.ecfr.gov/cgi-bin/text-idx?SID=c38c7cc340821485cfc86a6bed118949&mc=true&tpl=/ecfrbrowse/Title40/40chapterV.tpl 40 C.F.R Parts 1500–1508]. The Supreme Court has since treated these regulations as deserving substantial deference. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep442/usrep442347/usrep442347.pdf 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 NEPA’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 [https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1502&rgn=div5 40 C.F.R Part 1502]); the comment process ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1503&rgn=div5 Part 1503]); predecision referral of interagency disputes to CEQ ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1504&rgn=div5 Part 1504]); integration with agency decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1505&rgn=div5 Part 1505]); elimination of duplication with state and local requirements and procedures for filing with EPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1506&rgn=div5 Part 1506]); and agency compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1507&rgn=div5 Part 1507]).
 
The CEQ regulations cover many of the procedural issues that have emerged in the extensive litigation over the meaning of NEPA’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 [https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1502&rgn=div5 40 C.F.R Part 1502]); the comment process ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1503&rgn=div5 Part 1503]); predecision referral of interagency disputes to CEQ ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1504&rgn=div5 Part 1504]); integration with agency decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1505&rgn=div5 Part 1505]); elimination of duplication with state and local requirements and procedures for filing with EPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1506&rgn=div5 Part 1506]); and agency compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1507&rgn=div5 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 [https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations]. In April 1981 it issued a [https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf 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 memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum 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, [https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf Modernizing NEPA Implementation], was issued a year later. It contained recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient.
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In addition to the regulations, CEQ also provided continuing guidance to agencies on implementation of NEPA. For example, in 1981 it published the [https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations]. In April 1981, it issued a [https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf 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, CEQ published a supplemental memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum 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, [https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf Modernizing NEPA Implementation], 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 review) 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 comment. The comment period closed on March 25, 2015. According to the CEQ website:
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More recently, CEQ has provided guidance on the use of categorical exclusions (in which agencies may exempt certain actions from NEPA review) 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 comment. The comment period closed on March 25, 2015. According to the CEQ website:<blockquote>This guidance explains that agencies should consider both the potential effects of a proposed action on climate change, as indicated by its estimated greenhouse gas emissions, and the implications of climate change for the environmental effects of a proposed action. The guidance also emphasizes that agency analyses should be commensurate with projected greenhouse gas emissions and climate impacts, and should employ appropriate quantitative or qualitative analytical methods to ensure useful information is available to inform the public and the decision-making process in distinguishing between alternatives and mitigations. It recommends that agencies consider 25,000 metric tons of carbon dioxide equivalent emissions on an annual basis as a reference point below which a quantitative analysis of greenhouse gas is not recommended unless it is easily accomplished based on available tools and data. Unlike the 2010 draft guidance, the revised draft guidance applies to all proposed Federal agency actions, including land and resource management actions. It reflects CEQ’s consideration of comments received on the 2010 draft guidance in addition to other Federal agency and affected stakeholder input. It does not create new or additional regulatory requirements.</blockquote>The CEQ also compiles [https://ceq.doe.gov/get-involved/eis_filings.html annual data on the number of environmental impact statements] filed by agencies and the trends in NEPA litigation.
  
This guidance explains that agencies should consider both the potential effects of a proposed action on climate change, as indicated by its estimated greenhouse gas emissions, and the implications of climate change for the environmental effects of a proposed action. The guidance also emphasizes that agency analyses should be commensurate with projected greenhouse gas emissions and climate impacts, and should employ appropriate quantitative or qualitative analytical methods to ensure useful information is available to inform the public and the decision-making process in distinguishing between alternatives and mitigations. It recommends that agencies consider 25,000 metric tons of carbon dioxide equivalent emissions on an annual basis as a reference point below which a quantitative analysis of greenhouse gas is not recommended unless it is easily accomplished based on available tools and data. Unlike the 2010 draft guidance, the revised draft guidance applies to all proposed Federal agency actions, including land and resource management actions. It reflects CEQ’s consideration of comments received on the 2010 draft guidance in addition to other Federal agency and affected stakeholder input. It does not create new or additional regulatory requirements.
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Originally, under 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342], CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman.
 
 
The CEQ also compiles annual data on the number of environmental impact statements filed by agencies and the trends in NEPA litigation, which is available on [https://ceq.doe.gov/get-involved/eis_filings.html CEQ’s website].
 
 
 
Originally, under 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342], the CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman.
 
  
 
==Legislative History==
 
==Legislative History==
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On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190] on January 1, 1970.
 
On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190] on January 1, 1970.
  
Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995, [https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66], § 3003, 109 Stat. 707, Dec. 21, 1995, as amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ113/pdf/PLAW-106publ113.pdf Pub. L. No. 106-113], Div. B, § 1000(a)(5), 113 Stat. 1536, Nov. 29, 1999.
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Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66], as amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ113/pdf/PLAW-106publ113.pdf Pub. L. No. 106-113]).
  
Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” ''See'' [https://www.congress.gov/109/plaws/publ54/PLAW-109publ54.pdf Pub. L. No. 109-54], Title III, 119 Stat. 543, Aug. 2, 2005. This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council. ''See'' [https://www.congress.gov/104/crpt/hrpt628/CRPT-104hrpt628.pdf H.R. Rep. No. 104-628] (1996).
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Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” ''See'' ([https://www.congress.gov/109/plaws/publ54/PLAW-109publ54.pdf Pub. L. No. 109-54], Title III). This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council. ''See'' [https://www.congress.gov/104/crpt/hrpt628/CRPT-104hrpt628.pdf H.R. Rep. No. 104-628] (1996).
  
Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), [https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141], 126 Stat. 405, July 6, 2012, a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning.
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Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) ([https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141]), a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning.
  
 
===Source Note===
 
===Source Note===
  
There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the [https://ceq.doe.gov/ Council on Environmental Quality]. A selection of various books and articles on diverse aspects of NEPA practice and procedure is included in the Bibliography.
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There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the [https://ceq.doe.gov/ Council on Environmental Quality]
  
 
==Bibliography==
 
==Bibliography==
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*''Hearing on the Application of the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations of the S. Comm. on Energy and Natural Resources, 104th Cong. (1995).
 
*''Hearing on the Application of the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations of the S. Comm. on Energy and Natural Resources, 104th Cong. (1995).
 
*''Hearing on the Efforts by the Federal Land Management Agencies to Strengthen the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong. (1996).
 
*''Hearing on the Efforts by the Federal Land Management Agencies to Strengthen the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong. (1996).
*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg47866/pdf/CHRG-105hhrg47866.pdf Problems and Issues with the National Environmental Policy Act of 1969], Oversight Hearing Before the H. Comm. on Resources Before the H. Comm. on Resources, 105th Cong. (1998).
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*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg47866/pdf/CHRG-105hhrg47866.pdf Problems and Issues with the National Environmental Policy Act of 1969], Oversight Hearing Before the H. Comm. on Resources Before the H. Comm. on Res., 105th Cong. (1998).
*Comments from Congressman Ribble on an Amendment to H.R. 4348, April 18, 2012, [https://www.congress.gov/crec/2012/04/18/CREC-2012-04-18-pt1-PgH1932-2.pdf Cong. Rec. H1946–55].
 
 
*MAP-21 Conference Report to Accompany H.R. 4348, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt557/pdf/CRPT-112hrpt557.pdf H.R. Rep. No. 112-557] (2012).
 
*MAP-21 Conference Report to Accompany H.R. 4348, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt557/pdf/CRPT-112hrpt557.pdf H.R. Rep. No. 112-557] (2012).
 
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg73228/pdf/CHRG-112hhrg73228.pdf The Council on Environmental Quality’s FY 2013 Funding Request and the Effects on NEPA, National Ocean Policy and Other Federal Environmental Policy Initiatives], Hearing Before the H. Comm. on Nat. Res., 112th Cong. (2012) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=281610 video]).  
 
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg73228/pdf/CHRG-112hhrg73228.pdf The Council on Environmental Quality’s FY 2013 Funding Request and the Effects on NEPA, National Ocean Policy and Other Federal Environmental Policy Initiatives], Hearing Before the H. Comm. on Nat. Res., 112th Cong. (2012) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=281610 video]).  
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*Executive Order 13,514, [https://www.govinfo.gov/content/pkg/DCPD-200900783/pdf/DCPD-200900783.pdf Federal Leadership in Environmental, Energy, and Economic Performance], 74 Fed. Reg. 52,117 (Oct. 8, 2009).
 
*Executive Order 13,514, [https://www.govinfo.gov/content/pkg/DCPD-200900783/pdf/DCPD-200900783.pdf Federal Leadership in Environmental, Energy, and Economic Performance], 74 Fed. Reg. 52,117 (Oct. 8, 2009).
 
*Executive Order 13,807, [https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/2017-18134.pdf Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects], 82 Fed. Reg. 40,463 (Aug. 15, 2017).
 
*Executive Order 13,807, [https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/2017-18134.pdf Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects], 82 Fed. Reg. 40,463 (Aug. 15, 2017).
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===ACUS Recommendations===
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* 73-6, [https://www.acus.gov/sites/default/files/documents/73-6-ss.pdf Procedures for Resolution of Environmental Issues in Licensing Proceedings]
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* 84-1, [https://www.acus.gov/sites/default/files/documents/84-1_0.pdf Public Regulation of Siting of Industrial Development Projects]
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* 85-2, [https://www.acus.gov/sites/default/files/documents/85-2.pdf Agency Procedures for Performing Regulatory Analysis of Rules]
  
 
===Council on Environmental Quality Documents===
 
===Council on Environmental Quality Documents===
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
*[https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html Environmental Quality Annual Reports, 1970-1997] (when discontinued).
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*[https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html Environmental Quality Annual Reports, 1970-1997].
*''Environmental Impact Statements: An Analysis of Six Years’ Experience by Seventy Federal Agencies'' (Mar. 1976).
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*''Environmental Impact Statements: An Analysis of Six Years’ Experience by Seventy Federal Agencies'' (1976).
 
*[https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf Memorandum to Agencies: Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations] (Mar. 23, 1981)
 
*[https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf Memorandum to Agencies: Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations] (Mar. 23, 1981)
 
*[https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] (Apr. 30, 1981).
 
*[https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] (Apr. 30, 1981).
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*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PollutionPreventionNEPA.pdf Memorandum to Heads of Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act], 58 Fed. Reg. 6,478–81 (Jan. 29, 1993).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PollutionPreventionNEPA.pdf Memorandum to Heads of Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act], 58 Fed. Reg. 6,478–81 (Jan. 29, 1993).
*[https://ceq.doe.gov/docs/ceq-publications/Incorporating_Biodiversity_1993.pdf Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act] (Jan. 1993)
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*[https://ceq.doe.gov/docs/ceq-publications/Incorporating_Biodiversity_1993.pdf Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act] (1993)
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf Considering Cumulative Effects Under the National Environmental Policy Act] (Jan. 1997).
+
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf Considering Cumulative Effects Under the National Environmental Policy Act] (1997).
*[https://www.energy.gov/sites/prod/files/2014/08/f18/CEQTransboundaryGuidance_07_01_97.pdf Guidance on NEPA Analyses for Transboundary Impacts] (July 1 1997).
+
*[https://www.energy.gov/sites/prod/files/2014/08/f18/CEQTransboundaryGuidance_07_01_97.pdf Guidance on NEPA Analyses for Transboundary Impacts] (1997).
*[https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).
+
*[https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (1997).
 
*[https://www.energy.gov/sites/prod/files/G-CEQ-DesigNonfedCoopAgencies.pdf Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA] (July 28, 1999).
 
*[https://www.energy.gov/sites/prod/files/G-CEQ-DesigNonfedCoopAgencies.pdf Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA] (July 28, 1999).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CoopAgenciesImplem.pdf Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Jan. 30, 2002).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CoopAgenciesImplem.pdf Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Jan. 30, 2002).
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/connaughton.pdf Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (December 23, 2004).
+
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/connaughton.pdf Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Dec. 23, 2004).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf Guidance on the Consideration of Past Actions in Cumulative Effects Analysis] (June 24, 2005).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf Guidance on the Consideration of Past Actions in Cumulative Effects Analysis] (June 24, 2005).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EmergencyGuidance.pdf Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA] (Sept. 8, 2005).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EmergencyGuidance.pdf Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA] (Sept. 8, 2005).
 
*[https://www.energy.gov/sites/prod/files/2014/04/f15/OMB%20CEQ%20Joint%20Statement_1.pdf Memorandum on Environmental Conflict Resolution] (Nov. 28, 2005).
 
*[https://www.energy.gov/sites/prod/files/2014/04/f15/OMB%20CEQ%20Joint%20Statement_1.pdf Memorandum on Environmental Conflict Resolution] (Nov. 28, 2005).
*[https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf Aligning National Environmental Policy Act Process with Environmental Management Systems] (Apr. 1, 2007).
+
*[https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf Aligning National Environmental Policy Act Process with Environmental Management Systems] (2007).
*[https://www.energy.gov/sites/prod/files/CEQ_Collaboration_in_NEPA_10-2007.pdf Collaboration in NEPA: A Handbook for NEPA Practitioners] (Oct. 1, 2007).
+
*[https://www.energy.gov/sites/prod/files/CEQ_Collaboration_in_NEPA_10-2007.pdf Collaboration in NEPA: A Handbook for NEPA Practitioners] (2007).
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf A Citizen’s Guide to the NEPA: Having Your Voice Heard] (Dec. 1, 2007).
+
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf A Citizen’s Guide to the NEPA: Having Your Voice Heard] (2007).
 
*[https://www.nrc.gov/docs/ML1006/ML100601337.pdf Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions] (Feb. 18, 2010).
 
*[https://www.nrc.gov/docs/ML1006/ML100601337.pdf Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions] (Feb. 18, 2010).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-Emergencies.pdf Memorandum for Heads of Federal Departments and Agencies: Emergencies and NEPA] (May 12, 2010).
 
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-Emergencies.pdf Memorandum for Heads of Federal Departments and Agencies: Emergencies and NEPA] (May 12, 2010).
Line 116: Line 116:
 
*[https://www.energy.gov/sites/prod/files/NEPA_CEQGuidance_EfficientReviewsUnderNEPA_03_12_12.pdf Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act] (Mar. 12, 2012).
 
*[https://www.energy.gov/sites/prod/files/NEPA_CEQGuidance_EfficientReviewsUnderNEPA_03_12_12.pdf Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act] (Mar. 12, 2012).
 
*[https://www.energy.gov/sites/prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf Joint Memorandum on Environmental Collaboration and Conflict Resolution] (Sept. 7, 2012).
 
*[https://www.energy.gov/sites/prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf Joint Memorandum on Environmental Collaboration and Conflict Resolution] (Sept. 7, 2012).
*[https://www.energy.gov/sites/prod/files/G-CEQ-NEPA_NHPA_Section_106_Handbook_Mar2013.pdf NEPA and NHPA: A Handbook for Integrating NEPA and Section 106] (Mar. 5, 2013).
+
*[https://www.energy.gov/sites/prod/files/G-CEQ-NEPA_NHPA_Section_106_Handbook_Mar2013.pdf NEPA and NHPA: A Handbook for Integrating NEPA and Section 106] (2013).
*[https://www.energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_February2014_0.pdf NEPA and CEQA: Integrating State and Federal Environmental Reviews] (Feb. 14, 2014).
+
*[https://www.energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_February2014_0.pdf NEPA and CEQA: Integrating State and Federal Environmental Reviews] (2014).
 
*[https://ceq.doe.gov/docs/ceq-reports/ceq-25th-annual-report.pdf The Twenty-fifth Anniversary Report of the Council on Environmental Quality] (1994-1995).
 
*[https://ceq.doe.gov/docs/ceq-reports/ceq-25th-annual-report.pdf The Twenty-fifth Anniversary Report of the Council on Environmental Quality] (1994-1995).
 
*[https://www.govinfo.gov/content/pkg/FR-2017-09-14/pdf/2017-19425.pdf Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process], 82 Fed. Reg. 43,226 (Sept. 17, 2017).
 
*[https://www.govinfo.gov/content/pkg/FR-2017-09-14/pdf/2017-19425.pdf Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process], 82 Fed. Reg. 43,226 (Sept. 17, 2017).
Line 125: Line 125:
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
*Frederick R. Anderson, ''NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act'' (Resources for the Future, Inc.; Baltimore: Johns Hopkins University Press, 1973).
 
*Frederick R. Anderson, ''NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act'' (Resources for the Future, Inc.; Baltimore: Johns Hopkins University Press, 1973).
*Richard R. L. Andrews et al., ''Substantive Guidance for Environmental Impact Assessment: An Exploratory Study'' (The Institute for Ecology, Butler Univ., 1977).
+
*Richard R. L. Andrews et al., ''Substantive Guidance for Environmental Impact Assessment: An Exploratory Study'' (Inst. for Ecology, Butler Univ., 1977).
*Eugene Bardach & Lucian Pugliaresi, [https://www.nationalaffairs.com/storage/app/uploads/public/58e/1a4/c4c/58e1a4c4c619d491120331.pdf The Environmental Impact Statement vs. The Real World], 49 Pub. Interest 22 (1977).
+
*Eugene Bardach & Lucian Pugliaresi, [https://www.nationalaffairs.com/storage/app/uploads/public/58e/1a4/c4c/58e1a4c4c619d491120331.pdf The Environmental Impact Statement vs. The Real World], 49 Pub. Int. 22 (1977).
 
*Richard K. Berg & Roger C. Cramton, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2338&context=facpub On Leading a Horse to Water: NEPA and the Federal Bureaucracy], 71 Mich. L. Rev. 511 (1973).
 
*Richard K. Berg & Roger C. Cramton, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2338&context=facpub On Leading a Horse to Water: NEPA and the Federal Bureaucracy], 71 Mich. L. Rev. 511 (1973).
 
*Michael C. Blumm & Keith Mosman, [https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/1190/2WJELP193.pdf?sequence=1 The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit], 2 Wash. J. Envtl. L. & Pol’y 193 (2012).
 
*Michael C. Blumm & Keith Mosman, [https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/1190/2WJELP193.pdf?sequence=1 The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit], 2 Wash. J. Envtl. L. & Pol’y 193 (2012).
Line 132: Line 132:
 
*Sharon Buccino, ''NEPA under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation'', 12 N.Y.U. Envtl. L.J. 50 (2003).
 
*Sharon Buccino, ''NEPA under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation'', 12 N.Y.U. Envtl. L.J. 50 (2003).
 
*Michael Burger; Jessica Wentz, [http://harvardelr.com/wp-content/uploads/2017/05/Burger_Wentz.pdf Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review], 41 Harv. Envtl. L. Rev. 109 (2017).
 
*Michael Burger; Jessica Wentz, [http://harvardelr.com/wp-content/uploads/2017/05/Burger_Wentz.pdf Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review], 41 Harv. Envtl. L. Rev. 109 (2017).
*L. Caldwell, ''A Study of Ways to Improve the Scientific Content and Methodology of Environmental Impact Analysis'' (School of Public and Envtl. Affairs, Indiana Univ., 1982).
+
*L. Caldwell, ''A Study of Ways to Improve the Scientific Content and Methodology of Environmental Impact Analysis'' (Sch. of Pub. & Envtl. Affairs, Ind. Univ., 1982).
 
*Ray Clark & Larry Canter, ''Environmental Policy and NEPA: Past, Present, and Future'' (CRC Press 1997).
 
*Ray Clark & Larry Canter, ''Environmental Policy and NEPA: Past, Present, and Future'' (CRC Press 1997).
 
*Jamison E. Colburn, [http://www.columbiaenvironmentallaw.org/wp-content/uploads/sites/14/2016/07/Colburn_-_The_Risk_in_Discretion.pdf The Risk in Discretion: Substantive NEPA’s Significance], 41 Colum. J. Envtl. L. 1 (2016).
 
*Jamison E. Colburn, [http://www.columbiaenvironmentallaw.org/wp-content/uploads/sites/14/2016/07/Colburn_-_The_Risk_in_Discretion.pdf The Risk in Discretion: Substantive NEPA’s Significance], 41 Colum. J. Envtl. L. 1 (2016).
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*Environmental Law Institute, ''NEPA Deskbook'' (4th ed. 2014).
 
*Environmental Law Institute, ''NEPA Deskbook'' (4th ed. 2014).
 
*Arthur F. Ferguson, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3324&context=ilj The Sin of Omission: Inaction as Action Under Section 102(2)(C) of the National Environmental Policy Act of 1969], 53 Ind. L.J. 497 (1978).
 
*Arthur F. Ferguson, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3324&context=ilj The Sin of Omission: Inaction as Action Under Section 102(2)(C) of the National Environmental Policy Act of 1969], 53 Ind. L.J. 497 (1978).
*Robert L. Fischman & Mark S. Squillace, ''Environmental Law—Environmental Decisionmaking: NEPA and the Endangered Species Act'' (Anderson Publishing Co., 3d ed. 2000).
+
*Robert L. Fischman & Mark S. Squillace, ''Environmental Law—Environmental Decisionmaking: NEPA and the Endangered Species Act'' (Anderson Publ’g Co., 3d ed. 2000).
 
*Melanie Fisher, ''The CEQ Regulations: New Stage in the Evolution of NEPA'', 3 Harv. Envtl. L. Rev. 347 (1979).
 
*Melanie Fisher, ''The CEQ Regulations: New Stage in the Evolution of NEPA'', 3 Harv. Envtl. L. Rev. 347 (1979).
*Victor B. Flatt, [https://www.law.uh.edu/eelpj/publications/6-2/02Flatt.pdf The “Worst Case” May Be the Best: Rethinking NEPA Law to Avoid Future Environmental Disasters], 6 Envt’l & Energy L & Pol’y J 25 (Fall 2011).
+
*Victor B. Flatt, [https://www.law.uh.edu/eelpj/publications/6-2/02Flatt.pdf The “Worst Case” May Be the Best: Rethinking NEPA Law to Avoid Future Environmental Disasters], 6 Envt’l & Energy L & Pol’y J 25 (2011).
 
*Valerie Fogelman, ''Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance'' (Praeger 1990).
 
*Valerie Fogelman, ''Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance'' (Praeger 1990).
 
*Robert L. Glicksman, David L. Markell, William B. Buzbee, Daniel R. Mandelker & Daniel Bodansky, ''Environmental Protection: Law and Policy, Chapter IV'' (Wolters Kluwer 2011).
 
*Robert L. Glicksman, David L. Markell, William B. Buzbee, Daniel R. Mandelker & Daniel Bodansky, ''Environmental Protection: Law and Policy, Chapter IV'' (Wolters Kluwer 2011).
*Craig N. Johnston, William F. Funk & Victor B. Flatt, ''Legal Protection of the Environment, Chapter 2'' (West Publishing, 3d ed. 2010).
+
*Craig N. Johnston, William F. Funk & Victor B. Flatt, ''Legal Protection of the Environment, Chapter 2'' (West Publ’g, 3d ed. 2010).
 
*Bradley C. Karkkainen, ''Whither NEPA?'', 12 N.Y.U. Envtl. L.J. 333 (2004).
 
*Bradley C. Karkkainen, ''Whither NEPA?'', 12 N.Y.U. Envtl. L.J. 333 (2004).
 
*Bradley C. Karkkainen, ''Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance'', 102 Colum. L. Rev. 903 (2002).
 
*Bradley C. Karkkainen, ''Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance'', 102 Colum. L. Rev. 903 (2002).
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*Daniel R. Mandelker, ''NEPA Law and Litigation'' (Clark Boardman Callaghan, 2d ed., 2014).
 
*Daniel R. Mandelker, ''NEPA Law and Litigation'' (Clark Boardman Callaghan, 2d ed., 2014).
 
*Thomas O. McGarity, ''The Courts, the Agencies and NEPA Threshold Issues'', 55 Tex. L. Rev. 801 (1977).
 
*Thomas O. McGarity, ''The Courts, the Agencies and NEPA Threshold Issues'', 55 Tex. L. Rev. 801 (1977).
*Arthur W. Murphy, [https://www.acus.gov/sites/default/files/documents/1973-06%20Procedures%20for%20Resolution%20of%20Environmental%20Issues%20in%20Licensing%20Proceedings.pdf The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?] (1975) (report to ACUS), reprinted in 72 Colum. L. Rev. 963 (1972).
+
*Thomas O. McGarity, [https://www.acus.gov/sites/default/files/documents/1985-02%20Pt.1%20The%20Role%20of%20Regulatory%20Analysis%20in%20Regulatory%20Decisionmaking.pdf The Role of Regulatory Analysis in Regulatory Decisionmaking] (1985) (report to ACUS).
 +
*Arthur W. Murphy, [https://www.acus.gov/sites/default/files/documents/Q%201973-06%20MURPHY.A%20Envir%20Issues%20in%20Licensing%203%20ACUS%20363%20xr%20U4.pdf The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?] (1975) (report to ACUS).
 +
*Gregory L. Ogden, [https://www.acus.gov/sites/default/files/documents/1984-01%20Public%20Regulation%20of%20Siting%20of%20Industrial%20Development%20Projects.pdf Report on Public Regulation of Siting of Industrial Development Projects] (1984) (report to ACUS).
 
*Mark A. Pridgeon et al., ''State Environmental Policy Acts: A Survey of Recent Developments'', 2 Harv. Envtl. L. Rev. 419 (1978).
 
*Mark A. Pridgeon et al., ''State Environmental Policy Acts: A Survey of Recent Developments'', 2 Harv. Envtl. L. Rev. 419 (1978).
 
*Mark Reeve, Comment, ''Scientific Uncertainty and the National Environmental Policy Act—The Council on Environmental Quality’s Regulation 40 CFR section 1502.22'', 60 Wash. L. Rev. 101 (1984).
 
*Mark Reeve, Comment, ''Scientific Uncertainty and the National Environmental Policy Act—The Council on Environmental Quality’s Regulation 40 CFR section 1502.22'', 60 Wash. L. Rev. 101 (1984).
*William Rodgers, Jr., ''Environmental Law, Chapter 9'' (West Publishing, 2d ed. 1994).
+
*William Rodgers, Jr., ''Environmental Law, Chapter 9'' (West Publ’g, 2d ed. 1994).
 
*John Ruple, Mark Capone, [https://law.lclark.edu/live/files/23293-46-4ruplecaponepdf NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West], 46 Envtl. L. 953 (2016).
 
*John Ruple, Mark Capone, [https://law.lclark.edu/live/files/23293-46-4ruplecaponepdf NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West], 46 Envtl. L. 953 (2016).
 
*Courtney A. Schultz, [https://core.ac.uk/download/pdf/36686883.pdf History of the Cumulative Effects Analysis Requirement Under NEPA and Its Interpretation in U.S. Forest Service Case Law], 27 J. Envtl. L. & Litig. 125 (2012).
 
*Courtney A. Schultz, [https://core.ac.uk/download/pdf/36686883.pdf History of the Cumulative Effects Analysis Requirement Under NEPA and Its Interpretation in U.S. Forest Service Case Law], 27 J. Envtl. L. & Litig. 125 (2012).
Line 161: Line 163:
 
*James T.B. Tripp & Nathan G. Alley, ''Streamlining NEPA’s Environmental Review Process: Suggestions for Agency Reform'', 12 N.Y.U. Envtl. L.J. 74 (2003).
 
*James T.B. Tripp & Nathan G. Alley, ''Streamlining NEPA’s Environmental Review Process: Suggestions for Agency Reform'', 12 N.Y.U. Envtl. L.J. 74 (2003).
 
*Charles F. Weiss, Note, ''Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold?'', 86 Mich. L. Rev. 777 (1988).
 
*Charles F. Weiss, Note, ''Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold?'', 86 Mich. L. Rev. 777 (1988).
*N.C. Yost, ''The Governance of Environmental Affairs—Toward Consensus'' (New York: Aspen Institute for Humanistic Studies, 1982).
+
*N.C. Yost, ''The Governance of Environmental Affairs—Toward Consensus'' (Aspen Inst. for Humanistic Studies, 1982).
 
</div>
 
</div>
  
 
===Agency Regulations===
 
===Agency Regulations===
Federal agencies have promulgated their own individualized regulations within the parameters set by the CEQ regulations. See the Code of Federal Regulations Index (“environmental impact statements”) for a list of citations to agency regulations.
+
Federal agencies have promulgated their own individualized regulations within the parameters set by the CEQ regulations.  
 
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3">
 
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3">
 
*'''Advisory Council on Historic Preservation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt36.3.805&rgn=div5 36 C.F.R. Part 805])
 
*'''Advisory Council on Historic Preservation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt36.3.805&rgn=div5 36 C.F.R. Part 805])

Revision as of 15:42, 3 December 2018

42 U.S.C. §§ 4321–4347 (2012); enacted by Pub. L. No. 91-190, 83 Stat. 852, Jan. 1, 1970. Amended by Pub. L. No. 94-52, § 2, 89 Stat. 258, July 3, 1975; by Pub. L. No. 94-83, 89 Stat. 424, Aug. 9, 1975; by Pub. L. No. 112-141, Div. A, Title I, Subtitle C, § 1319, 126 Stat. 551, July 6, 2012.

Lead Agency:

Council on Environmental Quality

NEPA.gov

Overview

The National Environmental Policy Act (NEPA) was the first federal statute to use the “impact statement” approach in federal regulation. Its purpose is to require federal agencies to analyze and consider the environmental impact of their actions in an open and public process. NEPA also created the Council on Environmental Quality (CEQ) within the Executive Office of the President.

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 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—(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 requires the responsible federal official to consult 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 Supreme Court has held that NEPA does not impose any substantive requirement 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, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements.

Council on Environmental Quality Role

The CEQ, created by title 11 of NEPA, is the legal overseer of NEPA and was active in shaping NEPA law in its early years. Until 2000, it prepared extensive annual environmental quality reports pursuant to 42 U.S.C. § 4341, which was effectively repealed in that year. CEQ took the lead in developing appropriate procedures for EIS preparation. In Executive Order 11,514, Protection and Enhancement of Environmental Quality, issued shortly after NEPA’s passage, President Nixon 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 binding regulations in Executive Order 11,991, Relating to Protection and Enhancement of Environmental Quality, (May 24, 1977). These regulations, issued on November 28, 1978 (43 Fed. Reg. 55,978–56,007), are codified at 40 C.F.R Parts 1500–1508. The Supreme Court has since treated these regulations as deserving substantial 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 NEPA’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. 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, CEQ published a supplemental memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum 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 Implementation, 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 review) 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 comment. The comment period closed on March 25, 2015. According to the CEQ website:

This guidance explains that agencies should consider both the potential effects of a proposed action on climate change, as indicated by its estimated greenhouse gas emissions, and the implications of climate change for the environmental effects of a proposed action. The guidance also emphasizes that agency analyses should be commensurate with projected greenhouse gas emissions and climate impacts, and should employ appropriate quantitative or qualitative analytical methods to ensure useful information is available to inform the public and the decision-making process in distinguishing between alternatives and mitigations. It recommends that agencies consider 25,000 metric tons of carbon dioxide equivalent emissions on an annual basis as a reference point below which a quantitative analysis of greenhouse gas is not recommended unless it is easily accomplished based on available tools and data. Unlike the 2010 draft guidance, the revised draft guidance applies to all proposed Federal agency actions, including land and resource management actions. It reflects CEQ’s consideration of comments received on the 2010 draft guidance in addition to other Federal agency and affected stakeholder input. It does not create new or additional regulatory requirements.

The CEQ also compiles annual data on the number of environmental impact statements filed by agencies and the trends in NEPA litigation.

Originally, under 42 U.S.C. § 4342, CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman.

Legislative History

Senators Henry M. Jackson (D-WA) and Ted Stevens (R-AK) introduced S. 1075, the original NEPA legislation, on February 18, 1969. It authorized the Secretary of the Interior to conduct a research program on environmental problems and created the Council on Environmental Quality. A hearing was held April 16, 1969 during which witnesses (primarily Lynton Caldwell, professor of political science at Indiana University) urged the creation of an “action-forcing” mechanism, which later became the environmental impact statement. S. 1075 was reported with amendments and an accompanying report of the Senate Committee on Interior and Insular Affairs on July 9, 1969. The following day the bill passed the Senate unanimously.

A House of Representatives’ subcommittee of the Committee on Merchant Marine and Fisheries held a series of hearings during May and June 1969 on various related bills. On July 1, 1969, Representative John Dingell (D-MI) and others introduced H.R. 12549, which became the leading House bill. It, however, lacked the impact statement requirement. On July 11, 1969, the full Committee reported H.R. 12549. A supplemental report was filed on July 19. On September 23, 1969, the House passed the Senate bill, but only after substituting the text of the House bill in place of the Senate’s language. It then requested a conference.

On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became Pub. L. No. 91-190 on January 1, 1970.

Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995 (Pub. L. No. 104-66, as amended by Pub. L. No. 106-113).

Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” See (Pub. L. No. 109-54, Title III). This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council. See H.R. Rep. No. 104-628 (1996).

Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. No. 112-141), a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning.

Source Note

There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the Council on Environmental Quality

Bibliography

Legislative History and Congressional Documents

Executive Orders and White House Documents

ACUS Recommendations

Council on Environmental Quality Documents

Books and Articles

Agency Regulations

Federal agencies have promulgated their own individualized regulations within the parameters set by the CEQ regulations.

Statutory Provisions

National Environmental Policy Act

Title 42 U.S. Code

Subchapter I—Policies and Goals

Subchapter II—Council on Environmental Quality