42 U.S.C. §4321 et seq. (1969)
The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970. The Act establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment and it provides a process for implementing these goals within the federal agencies.
NEPA's basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.
The NEPA process consists of an evaluation of the environmental effects of a federal undertaking including its alternatives. There are three levels of analysis depending on whether or not an undertaking could significantly affect the environment. These three levels include: categorical exclusion determination (CE); preparation of an environmental assessment/finding of no significant impact (EA/FONSI); and preparation of an environmental impact statement (EIS).
At the first level, an undertaking may be categorically excluded from a detailed environmental analysis if it meets certain criteria which a federal agency has previously determined as having no significant environmental impact. A number of agencies have developed lists of actions which are normally categorically excluded from environmental evaluation under their NEPA regulations.
At the second level of analysis, a federal agency prepares a written environmental assessment (EA) to determine whether or not a federal undertaking would significantly affect the environment. If the answer is no, the agency issues a finding of no significant impact (FONSI). The FONSI may address measures which an agency will take to reduce (mitigate) potentially significant impacts.
If the EA determines that the environmental consequences of a proposed federal undertaking may be significant, an EIS is prepared. An EIS is a more detailed evaluation of the proposed action and alternatives. The public, other federal agencies and outside parties may provide input into the preparation of an EIS and then comment on the draft EIS when it is completed.
If a federal agency anticipates that an undertaking may significantly impact the environment, or if a project is environmentally controversial, a federal agency may choose to prepare an EIS without having to first prepare an EA.
After a final EIS is prepared and at the time of its decision, a federal agency will prepare a public record of its decision addressing how the findings of the EIS, including consideration of alternatives, were incorporated into the agency's decision-making process.
The NEPA Process
The NEPA process is designed to involve federal, state, tribal and local agencies, as well as the public, to gather the best available information in a single place so that decision makers can be fully informed when they make their choices.
The process has the following steps:
- Scoping: When a project is first proposed, the lead agency announces it with a notice in the Federal Register, notices in local media, and letters to other agencies, citizens and groups that it knows are likely to be interested. Agencies, citizens and groups are welcome to send in comments helping the lead agency identify the issues it must address in the EIS or EA.
- Draft EIS or EA: Based on both agency expertise and issues raised by the public, the agency prepares a Draft EIS or EA with a full description of the affected environment, a reasonable range of alternatives, and an analysis of the impacts of each alternative. The public is then provided a second opportunity to provide comments.
- Final EIS or EA and Proposed Action: Based on the comments on the Draft EIS or EA, the agency writes a Final EIS or EA, and announces its Proposed Action. The public is not invited to comment on this, but if they are still unhappy, or feel that the agency has missed a major issue, they may protest the EIS to the Director of the agency. The Director may either ask the agency to revise the EIS, or explain to the protester why their complaints are not actually taken care of.
- Record of Decision: Once all the protests are resolved the agency issues a Record of Decision which is its final action prior to implementation. If members of the public are still dissatisfied with the outcome they may sue the agency in Federal court.
Contrary to a widespread misconception, NEPA does not prohibit the federal government or its licensees/permit holders from harming the environment, but merely requires that the prospective impacts be understood and disclosed in advance.
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