What is the National Environmental Policy Act
The National Environmental Policy Act (NEPA) requires all Federal agencies to, among other things:
- Assess the environmental impacts of major Federal projects, decisions such as issuing permits, spending Federal money, or actions on Federal lands.
- Consider the environmental impacts in making decisions.
- Disclose the environmental impacts to the public.
When an agency concludes that a proposed Federal action has the potential for causing significant environmental impacts, it is required to prepare a detailed statement about those potential environmental impacts. This report has come to be known as an Environmental Impact Statement (EIS). Please do read the full text of the act, at the link above, if you would like a more thorough picture of the obligations that NEPA imposes on agencies of the Federal government.
EPA's Role in NEPA:
The U.S. Environmental Protection Agency (EPA) has a unique role in the NEPA environmental review process. First, before an agency develops an EIS it is required by the act to consult with "any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." Since the EPA has a broad suite of environmental responsibilities and expertises due to the extensive set of environmental laws that it administers, it is virtually always involved in this consultation process during the development of an EIS.
Second, Section 309 of the Clean Air Act requires the EPA to "review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this chapter or other provisions of the authority of the Administrator contained in any legislation or regulation" proposed by an agency of the Federal government as well as any major Federal action to which the National Environmental Policy Act applies. This section of the Clean Air Act also requires that the Administrator make a finding as to whether the proposed Federal action is satisfactory from the standpoint of public health, welfare and environmental quality. In the event that the Administrator makes a finding that the proposed Federal action is unsatisfactory from the standpoint of public health, welfare or environmental quality, he or she is required to publish this finding and refer the matter to the President's Council on Environmental Quality.
As part of this §309 review, when the proposed action is subject to an EIS under NEPA, the EPA makes a finding as to the adequacy of the environmental analyses contained in the EIS. This finding is published in the Federal Register along with a summary paragraph for each Draft EIS that the EPA reviews. Similarly, the Administrator's findings on the acceptability of the potential environmental consequences of the proposed Federal action are published in the Federal Register after the EPA has completed its review of the Final EIS.
The EPA may also review other environmental documents, such as Environmental Assessments (EAs). Federal agencies need to formally file all EISs with EPA Headquarters so the EPA can announce its availability in the Federal Register for public comment. EISs currently under review by the EPA can be found at the EPA Headquarters Office of Federal Activities.
You can see a brochure summarizing the EPA's role, here.
In addition to its Clean Air Act §309 review, EPA must also comply with NEPA for its own proposed actions by preparing EAs or EISs. The categories of EPA actions for which EPA must prepare NEPA documents can be found in EPA's implementing NEPA regulations at 40 C.F.R. Part 6. These regulations can be found here . The majority of EPA NEPA reviews are tied to the issuance of new source National Pollutant Discharge Elimination System (NPDES) permits to industrial activities. To see an example of an EPA Region 10 EIS click here.
Is NEPA required for every project?
The President's Council on Environmental Quality (CEQ ) oversees NEPA for all federal agencies and has issued regulations and additional guidance (link to More info on NEPA) to assist agencies in complying with NEPA.
Some examples of projects that are subject to environmental reviews under NEPA are highway construction using federal funds; timber sales on Forest Service lands; permits needed to construct or operate dams, land management plans for the Bureau of Land Management (BLM), Forest Service (FS) and National Park Service (NPS); oil and gas development on federal lands; and decommissioning and/or the cleanup of Department of Defense (DOD) or Department of Energy (DOE) sites.
Federal agencies prepare three types of environmental reviews under NEPA:
- Environmental Impact Statements (EIS) are prepared for proposed actions with the potential for significant impacts.
- Environmental Assessments (EA) are prepared for proposed actions when the agency needs to study the issues before determining whether an EIS is necessary.
- Categorical Exclusions for small, routine projects where the agency has a record that demonstrates that these types of projects characteristically do not result in significant environmental impacts.
Private, state and local government actions which do not require a Federal action, such as funding or a decision, are not subject to environmental review under NEPA. Such projects include local roads, residential housing developments, shopping center developments and management plans for state or privately owned forest lands. It is important to remember that all of these types of projects may be subject to state and local regulations. For example, in Oregon projects are subject to an environmental review under the state's land use laws. In Washington projects are subject to environmental review under Washington's State Environmental Policy Act, the Shoreline Management Act and the Growth Management Act.
Are there additional requirements?
For projects undergoing NEPA analysis, it is also very common for there to be additional requirements from many different agencies and levels of government, including compliance with other federal, state and local regulations. Normally, the federal agency tries to include the full range of government decisions and regulations that apply to a project within the NEPA analysis. In fact, the CEQ regulations encourage Federal agencies to integrate all of the required environmental reviews into the environmental documents that are prepared pursuant to NEPA. Sometimes the environmental analyses for other agency decisions and requirements (the ones that does not invoke NEPA) are handled separately from the NEPA analysis.
Even though an EIS may include analyses of the proposed action's compliance with state and local law and regulation, the Federal agency may have no practical way of insuring that the proposal complies with state or local law and regulation. For example, if the proposed action is a regulatory action such as deciding whether and how to issue a Federal permit, the Federal agency may have no legal ability to compel compliance with applicable state or local law. On the other hand, the Federal agency may have the discretion under its legal authority to reject a permit application if the applicant refuses to commit to compliance with local and state law.