National Environmental Policy Act

Introduction

The National Environmental Policy Act (NEPA) is a piece of U.S. federal legislation, signed into law in 1970, that governs all major government actions that may alter the environment. It requires that before any project is undertaken by any agency of the federal government that may affect the environment, such as building a highway, the agency must complete and make public a report called an Environmental Impact Statement (EIS). The law also requires that reviews of proposed projects be open to input from members of the public. According to a 2007 statement by the Council on Environmental Quality of the Executive Office of the President, NEPA was the first major U.S. environmental law.

Historical Background and Scientific Foundations

NEPA was passed by Congress in 1969 and signed into law by President Richard M. Nixon (1913–1994) on January 1, 1970, at a time of high public concern for pollution and the environment in the United States. The U.S. Environmental Protection Agency (EPA) was also established in 1970. As stated by the NEPA itself, it is intended 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.” NEPA mandates that any federal agency prepare a science-based Environmental Impact Statement before performing any action that may significantly affect the quality of the environment.

NEPA’s writers were careful to not declare any specific relationship between the government of the United States and the “environment.” In particular, NEPA does not forbid environmentally harmful projects. It requires, rather, that whatever decisions are made must be informed by detailed studies of environmental impact. These studies are to be reported in documents termed Environmental Impact Statements. In principle, an agency’s decision, once informed by an Environmental Impact Statement, may be to go ahead without any type or amount of environmental destruction. In practice, public admission that a given project would be highly destructive would probably, for political reasons, not be attempted. Therefore, agencies considering potentially destructive projects sometimes seek exemption from NEPA’s requirement to produce an Environmental Impact Statement.

Three bodies oversee implementation of NEPA. First, the Council for Environmental Quality, a group established by NEPA, is part of the Executive Office of the President and has primary responsibility for overseeing implementation of NEPA. In 1978, the council set forth rules requiring each federal agency to set its own procedures for implementing the terms of NEPA, resulting in somewhat varying procedures among agencies. Second, once Environmental Impact Statements are produced, they are reviewed by the Environmental Protection Agency, which comments publicly on them. Third, disputes among citizens, government agencies, businesses, and other groups about NEPA issues may be resolved with the help of the U.S. Institute for Environmental Conflict Resolution in Tucson, Arizona.

Impacts and Issues

The Council for Environmental Quality is part of the Executive Office of the President. This means that administration of NEPA is not independent of politics,

WORDS TO KNOW

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because the president appoints the members of the council, and so may pack the membership of the council with persons friendly to her or his own view of NEPA. For example, an environmentalist president could appoint former members of Greenpeace, the Sierra Club, or other environmental groups to the council, seeking to make enforcement of NEPA stricter. In reality, it has more often been the case that presidents install pro-business figures on the council in order to weaken barriers against projects that damage the environment. For example, Philip Cooney (1959–) served as a lobbyist for the American Petroleum Institute, which is affiliated with the U.S. oil industry, before being made head of the Council for Environmental Quality by President George W. Bush in 2001. In 2005, he resigned his post a few days after the media revealed that Cooney, who had no scientific training, had altered scientific reports to exclude language about the dangers of global climate change. A few days later, Cooney was hired by the oil company ExxonMobil.

NEPA has been at the center of at least two security-related controversies in recent years. In 2005, environmental groups sued the U.S. Navy to prevent use of high-powered sonar off the coast of California. Sonar detects objects under water by sending out pulses of sound that bounce back from obstacles; some naval radars are so powerful that their pulses can injure or kill whales and other marine mammals. According to the Navy’s internal Environmental Assessment report, the exercises would have permanently injured the hearing of over 450 whales. However, the Navy alleged that it did not have to produce a more complete, scientifically rigorous, NEPA-style Environmental Impact Statement. A federal court ruled in favor of the environmentalists and forbade use of high-power sonar within 12 mi (19 km) of the California coast, but the president, stating that the training exercises constituted an “emergency” under the terms of NEPA, issued a waiver (special permission to the Navy to ignore the federal court’s ruling). In January 2008, a federal court ruled that the waiver had no legal standing and that the Navy was indeed banned from using high-power sonar in the exclusion zone. In particular, the judg stated that the Navy is not “exempted from compliance with the National Environmental Policy Act.”

In 2007, Congress ordered the Department of Homeland Security to build a 670 mi (1,080 km) fence along the border between the United States and Mexico. Such a fence could have many impacts on the environment (e.g., blocking migration of land animals). A draft Environmental Impact Statement for the fence project was released in 2007, with an invitation for public comment and a promise of more detail in a final statement. However, on April 2, 2008, Homeland Security Secretary Michael Chertoff announced that that his department would be ignoring NEPA and about 30 other environmental laws (including, according to the New York Times for April 8, 2008, laws protecting Indian graves, endangered species, and religious freedom) to build the fence. Chertoff argued that his department had been authorized by Congress to void any or all U.S. laws that interfered with the construction of the fence. As of April 2008, Congress’s action had been appealed to the U.S. Supreme Court as unconstitutional. The plaintiffs argued that Congress has no right give its own powers away to any other branch of government, including its power to make law. However, in mid-2008 it is not yet known whether the Supreme Court will hear the case or how it would decide.

Primary Source Connection

Public law 91-190, also known as the National Environmental Policy Act of 1969, or NEPA, is a comparatively short piece of legislation that has had far-reaching effects during the decades since it took effect on January 1, 1970. The four major purposes of the act were to establish a national policy promoting harmony between humans and their environment; to decrease or eliminate damage to the environment; to promote a better understanding of the ecological systems and resources deemed important to the country; and to create the Council on Environmental Policy within the executive branch of government.

NEPA mandated that an integrated and interdisciplinary approach be used when making decisions or plans that might adversely affect the environment, that qualitative environmental values be considered along with economic and technical factors when making decisions, and that proposed federal projects include a document that evaluates the environmental impact of the project. The requirement for an environmental evaluation of all federally funded projects is probably the most widely known provision of the act.

NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

National Environmental Policy Act of 1969, as amended

Sec. 2.

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.

TITLE I

CONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

Sec. 101.

(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may:

1. fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
2. assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
3. attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
4. preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;
5. achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
6. enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

Sec. 102.

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall

(A) 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;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) 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

1. the environmental impact of the proposed action,
2. any adverse environmental effects which cannot be avoided should the proposal be implemented,
3. alternatives to the proposed action,
4. the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
5. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes;

(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:

1. the State agency or official has statewide jurisdiction and has the responsibility for such action,
2. the responsible Federal official furnishes guidance and participates in such preparation,
3. the responsible Federal official independently valuates such statement prior to its approval nd adoption, and
4. after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.

The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this Act; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction.

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment;

(G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(I) assist the Council on Environmental Quality established by title II of this Act.

Sec. 103.

All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this Act.

Sec. 104.

Nothing in section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency.

Sec. 105.

The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.

TITLE II

COUNCIL ON ENVIRONMENTAL QUALITY

Sec. 201.

The President shall transmit to the Congress annually beginning July 1, 1970, an Environmental Quality Report (hereinafter referred to as the “report”) which shall set forth (1) the status and condition of the major natural, manmade, or altered environmental classes of the Nation, including, but not limited to, the air, the aquatic, including marine, estuarine, and fresh water, and the terrestrial environment, including, but not limited to, the forest, dryland, wetland, range, urban, suburban an rural environment; (2) current and foreseeable trends in the quality, management and utilization of such environments and the effects of those trends on the social, economic, and other requirements of the Nation; (3) the adequacy of available natural resources for fulfilling human and economic requirements of the Nation in the light of expected population pressures; (4) a review of the programs and activities (including regulatory activities) of the Federal Government, the State and local governments, and nongovernmental entities or individuals with particular reference to their effect on the environment and on the conservation, development and utilization of natural resources; and (5) a program for remedying the deficiencies of existing programs and activities, together with recommendations for legislation.

Sec. 202.

There is created in the Executive Office of the President a Council on Environmental Quality (hereinafter referred to as the “Council”). The Council shall be composed of three members who shall be appointed by the President to serve at his pleasure, by and with the advice and consent of the Senate. The President shall designate one of the members of the Council to serve as Chairman. Each member shall be a person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information of all kinds; to appraise programs and activities of the Federal Government in the light of the policy set forth in title I of this Act; to be conscious of and responsive to the scientific, economic, social, aesthetic, and cultural needs and interests of the Nation; and to formulate and recommend national policies to promote the improvement of the quality of the environment.

U.S. Congress

U.S. CONGRESS. “NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.” WASHINGTON, DC: U.S. CONGRESS, 1969. HTTP://CEQ.EH.DOE.GOV/NEPA/REGS/NEPA/NEPAEQIA.HTM (ACCESSED APRIL 10, 2008

See Also Environmental Assessments; Environmental Protection Agency (EPA)

BIBLIOGRAPHY

Books

Lindstrom, Matthew, and Zachary A. Smith. The National Environmental Policy Act: Judicial Misconstruction, Legislative Indifference, & Executive Neglect. College Station, TX: Texas A&M University Press, 2002.

Periodicals

Liptak, Adam. “Power to Build Border Fence Is Above U.S. Law.” New York Times (April 8, 2008).

Web Sites

Council on Environmental Quality, Executive Office of the President. “A Citizen’s Guide to the NEPA.” http://ceq.eh.doe.gov/nepa/Citizens_Guide_Dec07.pdf (accessed April 16, 2008).

MSNBC. “Final Border Fence Impact Report Bypassed with Waiver.” http://www.msnbc.msn.com/id/23927996/ (accessed April 21, 2008).

Natural Resources Defense Council. “Bush Attempts Illegal Override of Court Order Protecting Whales from Sonar.” http://www.nrdc.org/legislation/fnepa.asp (accessed April 17, 2008).

Natural Resources Defense Council. “Defending NEPA from Assault.” http://www.nrdc.org/legislation/fnepa.asp (accessed April 17, 2008).

U.S. Government Printing Office. “National Environmental Policy Act of 1969.” http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+42USC4321 (accessed April 16, 2008).

National Environmental Policy Act

Legislation excerpt

By: United States Congress

Date: Decemebr 1969

Source: U.S. Congress. "The National Environmental Policy Act of 1969." Washington, D.C.: 1969. Available online at 〈http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm〉 (accessed January 30, 2006).

About the Author: The Congress of the United States was established by Article 1 of the U.S. Constitution of 1787. Congress is the legislative arm of the U.S. Federal Government.

INTRODUCTION

Public law 91-190, also known as The National Environmental Policy Act of 1969, or NEPA, is a comparatively short piece of legislation that has had far-reaching effects during the decades since it took effect on January 1, 1970. The four major purposes of the act were to establish a national policy promoting harmony between humans and their environment; to decrease or eliminate damage to the environment; to promote a better understanding of the ecological systems and resources deemed important to the country; and to create the Council on Environmental Policy within the executive branch of government.

NEPA mandated that an integrated and interdisciplinary approach be used when making decisions or plans that might adversely affect the environment, that qualitative environmental values be considered along with economic and technical factors when making decisions, and that proposed federal projects include a document that evaluates the environmental impact of the project. The requirement for an environmental evaluation of all federally funded projects is probably the most widely known provision of the act.

PRIMARY SOURCE

National Environmental Policy Act of 1969, as amended

Sec. 2.

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.

TITLE I

CONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

Sec. 101.

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—

1. fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
2. assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
3. attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
4. preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;
5. achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
6. enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

Sec. 102.

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall—

(A) 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;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations;

(C) 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.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes;

(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:

(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,

(ii) the responsible Federal official furnishes guidance and participates in such preparation,

(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and

(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.

The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this Act; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction.

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;

(G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(I) assist the Council on Environmental Quality established by title II of this Act.

Sec. 103.

All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this Act.

Sec. 104.

Nothing in section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency.

Sec. 105.

The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.

TITLE II

COUNCIL ON ENVIRONMENTAL QUALITY

Sec. 201.

The President shall transmit to the Congress annually beginning July 1, 1970, an Environmental Quality Report (hereinafter referred to as the "report") which shall set forth (1) the status and condition of the major natural, manmade, or altered environmental classes of the Nation, including, but not limited to, the air, the aquatic, including marine, estuarine, and fresh water, and the terrestrial environment, including, but not limited to, the forest, dryland, wetland, range, urban, suburban an rural environment; (2) current and foreseeable trends in the quality, management and utilization of such environments and the effects of those trends on the social, economic, and other requirements of the Nation; (3) the adequacy of available natural resources for fulfilling human and economic requirements of the Nation in the light of expected population pressures; (4) a review of the programs and activities (including regulatory activities) of the Federal Government, the State and local governments, and nongovernmental entities or individuals with particular reference to their effect on the environment and on the conservation, development and utilization of natural resources; and (5) a program for remedying the deficiencies of existing programs and activities, together with recommendations for legislation.

Sec. 202.

There is created in the Executive Office of the President a Council on Environmental Quality (hereinafter referred to as the "Council"). The Council shall be composed of three members who shall be appointed by the President to serve at his pleasure, by and with the advice and consent of the Senate. The President shall designate one of the members of the Council to serve as Chairman. Each member shall be a person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information of all kinds; to appraise programs and activities of the Federal Government in the light of the policy set forth in title I of this Act; to be conscious of and responsive to the scientific, economic, social, aesthetic, and cultural needs and interests of the Nation; and to formulate and recommend national policies to promote the improvement of the quality of the environment….

SIGNIFICANCE

NEPA provided broad guidance that has had a permanent effect on the way that environmental issues are considered when planning federally funded projects within the United States. It elevated environmental concerns to the same level as economic and engineering considerations, outlined an interdisciplinary process by which the environmental impacts of proposed federal projects must be evaluated, and created an executive branch Council on Environmental Quality to advise the president and coordinate environmental policy activity.

The required environmental evaluations of proposed projects can take one of three forms. The simplest is known as a categorical exclusion, and applies to types of activities that do not have an individual or cumulative impact on the environment. A categorical exclusion might be issued, for example, to allow private citizens to collect small amounts of fallen timber from national forests in order to heat their homes. If an activity does not qualify for a categorical exclusion, as most major projects do not, then an environmental assessment, or EA, must be undertaken and made available for public comment. If, after taking into account public comments, the environmental assessment concludes that the proposed project will have insignificant impacts, then a finding of no significant impact (also known as a FONSI) may be issued. If the environmental assessment finds that significant impacts will occur, then a more detailed environmental impact statement or EIS must be prepared.

Each environmental impact statement must describe the purpose of and need for the project, the environmental impact of a proposed project, any adverse effects that may be impossible to avoid, one or more alternatives to the proposed activity, the balance between short-term gains and long-term environmental productivity, and any permanent loss of natural resources that would occur if the proposed activity is undertaken. A list of the specialists who prepared the statement and their professional qualifications must also be included. Environmental impact statements typically include so-called no-action alternatives that weigh the effects of a proposed project against those that would occur if nothing were done. Furthermore, environmental impact statements must be prepared in consultation with other relevant scientific expertise or legal jurisdiction. For example, the U.S. Fish and Wildlife Service must be consulted if a riverfront construction project has the potential to harm fisheries. Copies of the environmental impact statement must be provided to the President, the Council on Environmental Quality, and the general public. In practice, environmental impact statements for major projects can be hundreds or thousands of pages long. Comments from the general public on a draft environmental impact statement must also be addressed and incorporated into the final statement. Once an environmental impact statement has been finalized a circulated, a document known as the record of decision or ROD is published. It explains the justification for selection of a preferred alternative, describes the other alternatives considered and identifies an environmentally preferably alternative, and elaborates upon the measures that will be taken to reduce environmental impacts.

The Council on Environmental Quality, another product of NEPA, coordinates environmental activities among federal agencies and helps to develop federal environmental policies. The council also reviews disputes related to environmental assessments and prepares an annual report on the environment. Its chair is appointed by the President with the advice and consent of the U.S. Senate.

FURTHER RESOURCES

Books

Bass, Ronald E., Albert I. Herson, and Kenneth M. Bogdan. The NEPA Book: A Step-By-Step Guide on How to Comply with the National Environmental Policy Act. Point Arena, Calif.: Solano Press, 2001.

Eccleston, Charles H. Environmental Impact Statements: A Comprehensive Guide to Project and Strategic Planning. New York: Wiley, 2000.

Web sites

U.S. Environmental Protection Agency. "National Environmental Policy Act (NEPA)." 〈http://www.epa.gov/compliance/nepa〉 (accessed January 17, 2006).

National Environmental Policy Act (1969)

William V. Luneburg

Excerpt from the National Environmental Policy Act

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.

After 150 years of rapid industrialization and urban expansion, along with two world wars, all of which required significant natural resource extraction, the environment of the United States by the end of the 1960s was under considerable stress. Many forested public and private lands had been or were being cleared of trees; industrial water pollution and acid mine drainage made rivers and streams unusable for various purposes, including recreation; many wild and scenic rivers were no longer free-flowing but dammed and silent; smog and other types of air pollution blanketed urban areas; and concrete highways and the developments they encouraged were consuming large areas of rural America, to name just a few of the more obvious sources of concern. At the same time, the increasingly affluent American family that traveled extensively across the continent and was witness to these changes began to put more value on the elimination of these threats to public health and of the destruction and despoliation of the places, vistas, and natural landmarks that had come to symbolize the American wilderness as it presented itself to the explorers, early settlers, and pioneers.

In this context, it was clear to many concerned and knowledgeable observers that agencies of the federal government were themselves significantly responsible for the deteriorating state of the environment within the United States. Federal agencies undertook massive projects themselves (e.g., building dams) or approved work undertaken by state governments or private companies (e.g., interstate highway construction) that involved environmentally destructive consequences. However, confronted with claims that they should consider the potential environmental effects in deciding what actions to take or avoid, federal officials responded by arguing that they had not been authorized by Congress to protect the environment; rather, their respective responsibilities were to build dams, highways or airports, to insure that timber production could meet the demand for new housing construction, and to otherwise carry out the nonenvironmental goals of the legislature.

PROVISIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT

The National Environmental Policy Act of 1969 (NEPA) (P.L. 91-190, 83 Stat. 852), signed by President Richard Nixon and effective on January 1, 1970, was Congress's attempt to eliminate these pleas of helplessness offered up by the federal bureaucracy. It is a statute that, for its authority, relies on Congress's well-nigh plenary power, or complete authority, to organize the way in which federal agencies go about their work.

The National Environmental Policy Act was the first of the modern federal environmental statutes, shortly followed in the early 1970s by the enactment of those federal laws that now form the bedrock of environmental legislation in the United States. Like those other laws, NEPA responded to the increasing public outcry, symbolized by the first Earth Day in 1970, for protection of the national and global environments. Unlike those other laws, however, NEPA is short and lacks significant detail. Rather, to a great extent, it is composed of ambitious pronouncements of purpose and policy phrased in broad generalities. For example, Section 101 makes it the "continuing responsibility of the Federal Government ... to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may ... fulfill the responsibilities of each generation as trustee of the environment for succeeding generations ... [and] assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.... "

The most important specific legislative accomplishments of NEPA are three: (1) the expansion of the legal authority of federal agencies to require them, as part of their decision-making processes, to consider the environmental consequences of each action they take; (2) the imposition of a requirement that, prior to making any final decision on a major program, plan, or project, each federal agency prepare and consider a "statement" examining the environmental costs and benefits of action and alternatives to avoid environmental harm (the so-called Environmental Impact Statement [EIS] requirement); and (3) the creation of the President's Council on Environmental Quality (CEQ).

THE LEGISLATIVE HISTORY OF NEPA

The legislative history of NEPA is as remarkable for what it leaves unstated (and perhaps unconsidered) as for what it expressly says. As early as 1959, Congress had considered legislation purporting to offer a national policy on conservation and use of natural resources as well as to establish a presidential advisory counsel on the environment. Nothing came of that legislative effort. However, in 1969 Senator Henry Jackson of Washington and Representative John Dingell of Michigan introduced similar bills in the Senate and the House of Representatives. As originally conceived, there was no "operational" aspect to the proposed bills, that is to say, no specific mechanism to try to insure that environmental protection would be forthcoming. But at a hearing in the Senate, Professor Lynton Caldwell of Indiana University noted the need for "an actionforcing, operational aspect" to the bill being considered. Senator Jackson and his staff then worked with Professor Caldwell to draft what later became Section 102(2)(C) of NEPA, the requirement that, at the time of proposing legislation or a major federal action that might significantly effect the environment, the agency responsible for the action prepare an EIS. With modest changes and little debate or other legislative history to suggest how Congress intended this provision to be implemented, it became law and a keystone of environmental policy as implemented by the federal bureaucracy. Of all the provisions of NEPA, the impact statement requirement has provoked by far the largest amount of attention within and outside the government.

Other amendments were attached to the bill enacted as NEPA as it made its way through the legislative process. Two of the most important reflected to some degree a "turf" fight within the Senate over the control of federal environmental policy. Senator Edmund Muskie of Maine chaired the subcommittee that was to produce the Clean Air and Clean Water Acts. He did not want the environmental standards created by or under that or other environmental legislation disregarded or otherwise undercut by NEPA. Nor did he want the views of the federal agencies subject to the oversight of his subcommittee ignored in the decision-making processes required by NEPA. Accordingly, the bill was amended to clarify that NEPA did not trump the environmental obligations imposed by other federal law and that federal agencies preparing Environmental Impact Statements had to solicit comments on draft Environmental Impact Statements from the U.S. Environmental Protection Agency and other federal agencies that possessed the primary responsibility for environmental protection.

THE ROLE OF THE COUNCIL ON ENVIRONMENTAL QUALITY

Both the original bills and the one finally enacted and signed by President Nixon established a Council on Environmental Quality within the Executive Office of the President. In essence the role of the CEQ, a three-member body, is to gather authoritative information on the state of the environment and assist in the dissemination of that information through preparation of an annual report as well as conduct studies relating to ecological systems and environmental quality, oversee federal agency compliance with the policy and other obligations imposed by NEPA, and recommend to the president national policies for improvement of environmental quality.

In connection with these functions the CEQ has adopted a set of elaborate regulations that restate, clarify, and elaborate on the obligations that NEPA imposes on federal agencies. As a practical matter, the most important components of those regulations are the provisions dealing with the need to prepare an EIS, the timing for such preparation, and the contents of an acceptable EIS. These regulations divide agency actions into three categories: actions that generally do not amount to major actions requiring in-depth environmental analysis; actions that are, without question, major ones likely to have significant environmental effects and, therefore, subject to the EIS requirement; and, finally, those for which it is not clear whether an EIS is necessary, so the agency must first prepare an Environmental Assessment (EA) in order to determine the scope and nature of the potential effects and whether they amount to the "significant" effects that trigger full-blown EIS analysis.

CHALLENGES TO THE ACT

In the early years following the enactment of NEPA, there was widespread federal agency resistance to its mandates, not surprisingly since compliance could delay program and project implementation and add significantly to costs. Hundreds of lawsuits were brought against agencies on the grounds that no EIS had been prepared when it should have been or, even if prepared, the EIS was fatally incomplete or otherwise inadequate in addressing relevant environmental impacts and alternatives to avoid those impacts. Many federal actions were stopped in their tracks by courts issuing orders to agencies to comply with NEPA. However, because of the costs of noncompliance with NEPA, increasingly agencies have more seriously considered their NEPA obligations: hundreds of EAs and EISs are prepared every year, and many of those comprise volumes of data and analysis.

While lawsuits continue to be brought on the basis of violations of NEPA, it is increasingly difficult to win them. In part, this is because of a series of Supreme Court cases, including, for example, Vermont Yankee Nuclear Power Corp. v. NRDC (1978), that have consistently found that NEPA merely mandates a particular decision-making process; it does not mandate certain results in terms of actions taken or environmental effects avoided. Accordingly, NEPA operates merely as a "stop and think first" statute: before a federal agency acts, it must consider the possible environmental consequences; having prepared an appropriate EA or EIS and having taken it into account, the agency can go right ahead with its plans—despite alternative courses of action that might mitigate or eliminate the adverse environmental consequences that may result from the proposed agency action.

As a result, more than thirty years after the enactment of NEPA, debate continues to rage with regard to whether the statute has resulted in agency decision making that minimizes, to the greatest practicable extent, the adverse impact of federal actions on the natural environment. This debate has not, however, discouraged states, other countries, and the international community from transplanting NEPA's technique of environmental impact assessment into their own distinctive legal systems.

See also: Clean Air Act; Emergency Planning and Community Right-to-Know Act; Federal Water Pollution Control Act.

BIBLIOGRAPHY

Anderson, Frederick R. NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act. Washington, DC: Resources for the Future, 1973.

Caldwell, Lynton K. The National Environmental Policy Act: An Agenda for the Future. Bloomington, IN: Indiana University Press, 1998.

Council on Environmental Quality. NEPAnet. July 2003. <http://ceq.eh.doe.gov/nepa/nepanet.htm>.

Mandelker, Daniel R. NEPA Law and Litigation, 2nd ed. New York: Clark Boardman Callaghan, 1992.

The National Environmental Policy Act: A Study of Effectiveness after Twenty-Five Years. Washington, DC: Council on Environmental Quality, Executive Office of the President, 1997.

Taylor, Serge. Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform. Stanford, CA: Stanford University Press, 1984.

National Environmental Policy Act (1969)

The National Environmental Policy Act (NEPA) of 1969 was signed into law on January 1, 1970, launching a decade marked by passage of key environmental legislation and increased awareness of environmental problems. The act established the first comprehensive national policies and goals for the protection, maintenance, and use of the environment . The act also established the Council on Environmental Quality (CEQ) to oversee NEPA and advise the president on environmental issues.

Title I of NEPA declares that the federal government will use all practicable means and measures to create and maintain conditions under which people and nature can exist in productive harmony, while fulfilling the social and economic requirements of the American people. Included in this declaration are goals to attain the widest range of beneficial uses of the environment without undesirable consequences and to preserve culturally and aesthetically important features of the landscape. The declaration also commits each generation of Americans to stewardship of the environment for future generations .

To achieve the national environmental goals, the act directs all federal agencies to evaluate the impacts of major federal actions upon the environment. Before taking an action, each federal agency must prepare a statement describing (1) the environmental impact of the proposed action, (2) adverse environmental effects that cannot be avoided, (3) alternatives to the proposal, (4) short-term versus long-term impacts, and (5) any irreversible effects on resources that would result if the action were implemented. The act requires any federal, state, or local agency with jurisdiction over the impacted environment to take part in the decision-making process. The general public also is given opportunities to take part in the NEPA process through hearings and meetings, or by submitting written comments to agencies involved in a project.

Title II of NEPA created the CEQ, as part of the Executive Office of the President, to oversee implementation of NEPA and assist the president in preparing an annual environmental quality report. The CEQ existed until February 1993, when President Clinton abolished the council and established the White House Office on Environmental Policy, with broader powers to coordinate national environmental policy. The CEQ issued regulations in 1978 which implement NEPA and are binding on all federal agencies. The regulations (40 CFR Parts 1500-1508) cover procedures and administration of NEPA, including preparation of environmental assessments and environmental impact statements. Many federal agencies have established their own NEPA regulations, following CEQ regulations, but customized for the particular activities of the agencies. In addition, 11 states have passed state environmental policy acts, sometimes called "little NEPAs."

Federal agencies must incorporate the NEPA review process early in project planning. A complete environmental analysis can be very complex, involving potential effects on physical, chemical, biological and social factors of the proposed project and its alternatives. Various systematic methods have been developed to deal with the complexity of environmental analysis. There are three levels at which an action may be evaluated, depending on how large an impact it will have on the environment.

The first level is categorical exclusion which allows an undertaking to be exempt from detailed evaluation if it meets previously determined criteria designated as having no significant environmental impact. Some federal agencies have lists of actions which have been thus categorically excluded from evaluation under NEPA.

When an action cannot be excluded under the first level of analysis, the agency involved may prepare an environmental assessment to determine if the action will have a significant environment effect. An environmental assessment is a brief statement of the impacts of the action and alternatives. If the assessment determines there will not be significant environmental consequences, the agency issues a finding of no significant impact (FONSI). The finding may describe measures that will be taken to reduce potential impacts. An agency can skip the second level if it anticipates in advance that there will be significant impacts.

An action moves to the third level of analysis, an environmental impact statement (EIS), if the environmental assessment determines there will be significant environmental impacts. An EIS is a detailed evaluation of the action and alternatives, and it is used to make decisions on how to proceed with the action. An agency preparing an EIS must release a draft statement for comment and review by other agencies, local governments, and the general public. A final statement is released with modifications based on the results of the public review of the draft statement. When more than one agency is involved in an action, a lead agency is designated to coordinate the environmental analysis. An agency also may be called upon to cooperate in an environmental analysis if it has expertise in an area of concern. The CEQ regulations describe a process for settling disagreements which arise between agencies involved in an environmental analysis.

In addition to having to prepare their own environmental assessments and environmental impact statements, the Environmental Protection Agency (EPA) is involved in all NEPA review processes of other federal agencies, as mandated by Section 309 of the Clean Air Act . Section 309 was added to the Clean Air Act in 1970, after NEPA was passed and the EPA formed, with the purpose of ensuring independent reviews of all federal actions impacting the environment. As a result, the EPA reviews and comments on all federal environmental impact statements in draft and final form, on proposed environmental regulations and legislation, and on other proposed federal projects the EPA considers to have significant environmental impacts. The EPA's procedures for carrying out the Section 309 requirements are contained in the publication "Policies and Procedures for the Review of Federal Actions Impacting the Environment" (revised 1984). The EPA is also responsible for many of the administrative aspects of the EIS filing process. The NEPA review process includes an evaluation of a proj ect's compliance with other environmental laws such as the Clean Air Act. Federal agencies often integrate NEPA reviews with review requirements of other environmental laws to expedite decision-making and reduce costs and effort.

NEPA requires that previously unquantified environmental amenities be given consideration in decision-making along with more technical considerations. That means that the environmental analysis can be a subjective process, guided by the values of the particular players in any given project. The act does not define what constitutes a major action or what is considered a significant effect on the environment. Some agencies have developed their own guidelines for what types of actions are considered major. Examples of major actions include construction projects such as highway expansion and creek channelization. However, major actions do not always involve construction. For example, legislative changes which may affect the environment may come under NEPA review. When an action will be controversial or clearly violate a pre-set environmental standard, it also may be categorized as a major action with significant impacts. Actions which will have less measurable effects, such as disrupting scenic beauty, must be categorized more subjectively. The courts are frequently used to settle disputes about whether actions require compliance with NEPA.

Although NEPA is targeted to federal agencies, its implementation has resulted in closer scrutiny of major environmental actions other than those sponsored by the government. Environmental analyses also are required for private developments which need federal pollution control permits such as water discharges, air emissions, waste disposal, and wetlands filling.

See also Environmental impact assessment

[Teresa C. Donkin ]

RESOURCES

BOOKS

Fogelman, V. M. Guide to the National Environmental Policy Act: Interpretations, Applications and Compliance. Westport, CT: Greenwood, 1990.

PERIODICALS

Caldwell, L. K. "20 Years With NEPA Indicates the Need." Environment 31 (December 1989): 6–15.

Parenteau, P. A. "NEPA at Twenty: Great Disappointment or Whopping Success?" Audubon 92 (March 1990): 104–07.

OTHER

Facts about the National Environmental Policy Act. Washington, DC: U.S. Environmental Protection Agency, September 1989.

National Environmental Policy Act

As concern for environmental problems grew during the 1960s, the need for better project planning to prevent environmental degradation became obvious. Too many projects (e.g., dams, power plants, highways) had been built without regard for their negative impacts on water quality, soil erosion, aquatic and terrestrial habitat , or negative economic and social impacts on nearby communities. Many of these projects caused irreversible harm to the environment . Congress recognized that federal projects were culprits of environmental degradation, and that federal and state agencies would continue to support such projects unless Congressional statute forced them to consider their negative environmental impacts.

The National Environmental Policy Act (NEPA) of 1969 requires all federal agencies to use an interdisciplinary approach in their project planning and decision-making. Because federal agencies had no history or desire to work together on projects, tried to protect their "turf," and did not want the expense of the environmental impact assessment process to affect their budgets, they initially fought with Congress to prevent NEPA from being enacted. But since that time, every federal agency has developed a set of NEPA guidelines for its personnel to follow.

NEPA Components and Requirements

The National Environmental Policy Act has several major requirements. First, it provides a comprehensive approach to environmental protection by requiring that federally funded or federally permitted projects must perform environmental impact assessments and write an environmental impact statement (EIS) if that project would have a potentially significant environmental impact. An environmental assessment (EA) is conducted to determine whether impacts are potentially significant.

The EIS must describe:

• The proposed action;
• Various environmental impacts of the proposed action;
• Unavoidable adverse environmental effects of the action;
• Alternatives (and their negative impacts) to the proposed action; and
• Long-term environmental damages.

Alternatives often give decisionmakers methods to mitigate some negative project impacts or carry out actions entirely different than those originally planned. For example, the city of Denver, Colorado proposed the Two Forks Dam to obtain additional water supplies. In 1989, the U.S. Environmental Protection Agency denied approval when one EIS alternative suggested making Denver meter all buildings and houses in order to stop wasting the water it already had.

Research for environmental impact assessments is done in categories such as: land use and development; social and economic effects; relocations and neighborhood effects; noise; traffic; transportation; environmental health and public safety; historical and archaeological resources; visual resources; air quality; water resources (including wetlands ); wildlife and aquatic species and their habitats; floodplains; and coastal areas. Because of its complexity and comprehensive nature, the research is expensive. EISs for large projects typically cost tens of millions of dollars and take years to complete.

To ensure public participation, the public is notified when the draft EIS (DEIS) is published; all notices regarding NEPA processes are published in the Federal Register. The public and special interest groups typically have 45 to 60 days to read and comment on it, either in writing or at public hearings. Federal agencies must incorporate public comment into the final EIS (FEIS). The FEIS states which of the alternatives has been chosen for implementation, and the justifications for selecting that alternative over the others.

Visionary Scope.

NEPA is important to water resources management because the assessment done for the water resources portion of an EIS helps decisionmakers balance the numerous and complex variables when considering a project. They must take into account how their project can have a ripple effect on water resources, wildlife, habitat, and local communities. An EIS helps illustrate that water resources must be managed not only for immediate human uses, but for long-term ecosystem sustainability. For example, a recent controversy over how to manage the Missouri River is pitting the interests of upstream recreational economies and their necessary habitat preservation with downstream economic interests of barge traffic and flood control.

see also Balancing Diverse Interests; Environmental Movement, Role of Water in the; Land-Use Planning; Legislation, Federal Water; Public Participation.

Laurel E. Phoenix

Bibliography

Marriott, Betty Bowers. Environmental Impact Assessment: A Practical Guide. New York: McGraw-Hill, 1997.

Reimold, Robert J. Watershed Management: Practice, Policies, and Coordination. New York: McGraw Hill, 1998.

Rogers, Peter. America's Water: Federal Roles and Responsibilities. Cambridge, MA: MIT Press, 1993.

Internet Resources

Council on Environmental Quality. <http://www.whitehouse.gov/ceq/>.

Federal Register. U.S. Government Printing Office. <http://www.access.gpo.gov/su_docs/aces/aces140.html>.

U.S. Government's NEPAnet. <http://ceq.eh.doe.gov/nepa/nepanet.htm>.

COUNCIL ON ENVIRONMENTAL QUALITY

The National Environmental Policy Act (NEPA) created the Council on Environmental Quality and placed it in the Executive Office of the President. The council oversees implementation of NEPA, advises the president on environmental issues, and writes an annual report evaluating national environmental conditions and trends, and regulatory adequacy to protect the environment.