National Environmental Policy Act

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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 were nonbinding but were relied upon by most federal agencies when promulgating their own procedures. Statements on Proposed Federal Actions Affecting the Environment, 36 Fed. Reg. 7724 (Apr. 23, 1971). 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 are codified at 40 C.F.R Parts 1500–1508. See Implementation of Procedural Provisions, 43 Fed. Reg. 55,978 (Nov. 28, 1978). 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, all in Title 40 of the Code of Federal 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 (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 and Ted Stevens 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 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).

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