National Environmental Policy Act
Introduction
The National Environmental Policy Act (NEPA) , enacted in 1970, is the foundational statute of American environmental law. NEPA establishes a national policy to promote environmental quality and requires federal agencies to assess the environmental effects of their proposed actions before making decisions. NEPA does not mandate particular outcomes; rather, it imposes procedural requirements that ensure agencies consider environmental consequences and involve the public in decision-making.
The NEPA Process
NEPA requires federal agencies to prepare an environmental impact statement (EIS) for every major federal action significantly affecting the quality of the human environment. The EIS process includes scoping (identifying the issues to be analyzed), preparation of a draft EIS, public comment, preparation of a final EIS, and a record of decision. The Council on Environmental Quality (CEQ) issues regulations implementing NEPA.
For actions that do not clearly require an EIS, agencies prepare an environmental assessment (EA) to determine whether the action may have significant environmental effects. If the EA concludes there will be no significant effects, the agency issues a finding of no significant impact (FONSI) . If significant effects are possible, the agency proceeds to prepare an EIS.
Categorical Exclusions
Categorical exclusions (CEs) are categories of actions that the agency has determined normally do not have significant environmental effects and therefore do not require an EA or EIS. Agencies must establish CEs through their NEPA implementing procedures and must apply them consistently. If extraordinary circumstances are present, the CE is not available and further environmental review is required.
The CEQ Regulations
The Council on Environmental Quality (CEQ) , established by NEPA, issues regulations implementing the statute (40 CFR Parts 1500-1508). The CEQ regulations have the force of law and establish uniform procedures for agency NEPA compliance. The regulations require agencies to integrate NEPA review with other planning and environmental review processes.
In 2023, the CEQ issued comprehensive revisions to the NEPA regulations based on the Fiscal Responsibility Act of 2023, which amended NEPA for the first time. The revisions establish page limits, time limits, and new procedures for EIS and EA preparation, and they codify the lead agency and joint lead agency framework.
Judicial Review of NEPA Compliance
NEPA compliance is subject to judicial review under the Administrative Procedure Act. The standard of review is whether the agency took a hard look at the environmental consequences of the proposed action. Courts examine whether the agency adequately considered the relevant factors, considered reasonable alternatives, and disclosed the environmental impacts.
NEPA does not provide a private right of action, but plaintiffs may challenge agency compliance through the APA. The remedy for NEPA violations is typically injunctive relief requiring the agency to comply with NEPA before proceeding with the action. Courts have broad discretion to tailor relief, including ordering supplemental EIS preparation or remanding to the agency.
The Requirement of Alternatives
The EIS must describe and analyze reasonable alternatives to the proposed action, including the no-action alternative. The alternatives analysis is the heart of the EIS, providing decision-makers and the public with information about the environmental consequences of different approaches. The agency must rigorously explore and objectively evaluate all reasonable alternatives.
Conclusion
NEPA is a procedural statute that requires federal agencies to consider environmental effects before taking action. The EIS process, the EA process, and categorical exclusions provide a tiered approach to environmental review. The CEQ regulations establish uniform procedures, and judicial review ensures agency accountability. NEPA’s procedural approach has been widely emulated at the state and international levels.