The National Environmental Policy Act

1. The National Environmental Policy Act An Overview Horst G Greczmiel Associate Director for NEPA Oversight Council on Environmental Quality November 2013

2. History and Purpose of NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) Senator Jackson summarized its purposes as: • to establish a national policy on the environment; • to authorize expanded research and understanding of our natural resources, the environment, and human ecology; and • to establish in the Office of the President a properly staffed Council of Environmental Quality Advisors. April 16, 1969, hearing introduced the concept of an environmental impact statement (referred to as a “finding”) and the need for an action-forcing provision to obtain compliance from federal agencies.

3. Senator Henry M. Jackson • “As a nation, we have failed to design and implement a national environmental policy which would enable us to weigh alternatives, and to anticipate the undesirable side effects which often result from our ongoing policies, programs and actions.” April 16, 1969

4. 1969 Santa Barbara Oil Spill http://www.geog.ucsb.edu/~jeff/sb_69oilspill/

5. Public Reaction Protest following the 1969 Santa Barbara Oil Spill http://www.es.ucsb.edu/images/new/OilSpillProtest.jpg

6. Cuyahoga River Fires At least a dozen fires occurred on the Cuyahoga River since 1868. The most famous fire was in 1969. http://web.ulib.csuohio.edu/SpecColl/croe/cpcphoto.html

7. Clearcutting in Olympic National Forest http://reality.sculptors.com/~barefoot/PacificNW-2004/Olympic

8. Air Pollution Smog in Houston, TX http://www.utexas.edu/research/ceer/texaqs/participants/photos/

9. “The nineteen-seventies absolutely must be the years when America pays its debt to the past by reclaiming the purityof its air, its waters and our living environment. It is literally now or never.” Richard M. Nixon, January 1, 1970 Sen. Muskie obtained amendments for future air and water standards (sec. 104) and changed “finding” requirement to a “detailed statement” with alternatives and consultation required. Conference committee rejected limitation of federal agency responsibility – required compliance with NEPA’s action-forcing provisions “to the fullest extent possible.” President Nixon opposed, but signed NEPA as the first statute of the decade.

10. Congress Passes NEPA Congress enacted the National Environmental Policy Act in 1969 by overwhelming bipartisan majorities. The House of Representatives adopted NEPA by a vote of 372 to 15. 115 CONG. REC. 19,013 (1969). The Senate passed NEPA by voice vote without recorded dissent. 115 CONG. REC. 26,590 (1969).

11. NEPA’s Purpose 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. Sec. 2 [42 USC § 4321]

12. Implementation • Study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. • Recognize the global character of environmental problems and assist in efforts to prevent the decline in the quality of the world’s environment. • Share environmental information and advice with States, counties, cities, institutions and individuals. • Initiate and utilize ecological information in the planning and development of natural resources.

13. Role of the Council on Environmental QualityPolicy Coordination • Developing and recommending to the President “national policies to foster and promote the improvement of environmental quality” 42 U.S.C. 4344(4). • Assisting “in coordinating among the Federal departments and agencies those programs and activities which affect, protect, and improve environmental quality” 42 U.S.C. 4372(d)(5). • Assisting the Federal departments and agencies in the development and interrelationship of environmental quality criteria and standards established through the Federal Government. 42 U.S.C. 4372(d)(6).

14. Implementation Provisions all agencies of the Federal Government shall -- 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 Section 102(2)(A) 42 United States Code §4332(2)(A)

15. Implementation “All federal agencies shall: . . . 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 • the environmental impact of the proposed action; • any adverse environmental effects which cannot be avoided should the proposal be implemented; • alternatives to the proposed action; • the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and • any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” Section 102(2)(C), 42 United States Code §4332(2)(C)

16. Role of CEQ NEPA Reviews Responsible for promulgation and interpretation of NEPA regulations A. “Substantial deference” by the Supreme Court. B. Role set out in regulations: 1. Review of agency NEPA procedures 2. Designation of lead agency 3. Alternative arrangements for supplemental EISs 4. Alternative arrangements for emergencies C. Dispute resolution – Referral process, 40 CFR 1504 – Informal coordination

17. Objectives: • Disclose, analyze, and consider environmental information when making decisions. • Inform the public of potential impacts and alternatives and involve the public in decision making.

18. When does NEPA apply? • “major Federal actions significantly affecting the quality of the human environment” • Federal decisions • policies, plans, programs and projects • Significantly: context and intensity • affecting: “will or may have an effect” • The human environment: the natural and physical environment and the relationship of people to that environment

19. Hierarchy Of NEPA Analyses and Documentation Processes: Categorical Exclusion (CE / CATEX) Environmental Assessment (EA) Environmental Impact Statement (EIS)

20. Categorical Exclusion (CE / CATEX)40 CFR 1508.4 • Categories of actions • Shown to not have significant effects • Administratively promulgated • Subject to Extraordinary Circumstances - when a normally excluded action may have significant environmental effect • Documentation?

21. Environmental Assessment (EA)40 CFR 1508.9 • Concise document • Provides evidence and analysis for determining whether to prepare an EIS • Aids in complying with NEPA when an EIS is not required. • Facilitates preparation of EIS if one is necessary.

22. Requirement Elements of an EA • Brief discussion of the need for the proposal • Reasonable alternatives to recommended courses of action for any proposal involving conflicts concerning use of natural resources • Anticipated environmental impacts of the proposed action and alternatives • List of agencies and individuals consulted

23. Finding of No Significant Impact40 CFR 1508.13 • Briefly presents reasons why action will not have a significant effect on the human environment. • Attached to, or includes summary of, the EA.

24. Finding of No Significant Impact Available for 30 day public review if: • proposed action is, or is closely similar to, an action which normally requires an EIS; or • the nature of the proposed action is without precedent. (40 CFR 1504(e)(2))

25. EA Challenges • Result is Finding Of No Significant Impact (FONSI) or Notice of Intent (NOI) to prepare EIS • Mitigated FONSIs need Follow-up • Involve the public to the extent practicable – Agencies have discretion to determine how

26. Environmental Impact Statement (EIS)40 CFR 1502.3 • Comprehensive action-forcing device for actions with significant environmental effects • Includes: • impacts (direct, indirect and cumulative), • actions (connected, cumulative and similar) • reasonable alternatives (no-action) • Procedural steps focus on issue identification and analysis.

27. EIS: The Process Steps • Notice of Intent • Scoping • Draft Environmental Impact Statement • Final Environmental Impact Statement • Record of Decision • Supplemental Environmental Impact Statement

28. Notice of Intent40 CFR 1508.22 • Describe proposed action and alternatives • Describe proposed scoping process • State name and address of agency contact

29. Scoping40 CFR 1501.7 The early and open process to determine scope of issues and identify the significant issues related to a proposed action • Invite affected Federal, State and local agencies, affected Indian Tribes, and other interested parties to participate • Determine the scope of the analysis and the significant issues • Allocate responsibilities among all government agencies • Develop the structure and process

30. Draft EIS 40 CFR 1502.9 • Cover sheet, 40 CFR 1502.11 • Summary, 40 CFR 1502.12 • Table of contents • Purpose and need for the proposed action, 40 CFR 1502.13 • Alternatives including no-action and the proposed action, 40 CFR 1502.14 • Affected environment, 40 CFR 1502.15 • Environmental consequences, 40 CFR 1502.16 • List of prepares, 40 CFR 1502.17 • Distribution list, refer to 40 CFR 1502.19 • Index • Appendices, 40 CFR 1502.18

31. Draft EIS • Draft EIS (DEIS) is published and circulated for review and comment for at least 45 days • Federal agencies with jurisdiction or special expertise relevant to any impact are expected to comment • Evaluate the comments received

32. Final Environmental Impact Statement (FEIS) • Take substantive comments into account, include them and responses in the FEIS. • Distribute to any person, organization or agency that submitted substantive comments. • EPA publishes NOA to begin 30 day review (“cooling off”) period.

33. Record of Decision • The decision • Alternatives considered • Environmentally preferred alternative • Factors balanced in making decision • economic and technical • agency statutory mission • national policies

34. Record of Decision • Were all practicable means to avoid or minimize harm adopted, and, if not, why not. • Describe applicable enforcement and monitoring programs.

35. EIS Timeline • NOI • Scoping • Draft EIS (DEIS) is published for review and comment for at least 45 days • Final EIS (FEIS) is published for review for 30 days • Final Decision is no sooner than 90 days after publishing DEIS or 30 days after publishing FEIS

36. Supplemental Environmental Impact Statement 40 CFR 1502.9(c) • Supplement DEIS or FEIS if: • substantial change in the proposed action • significant new circumstances or information • Supplements are prepared in the same manner as the DEIS or FEIS, except that scoping isn’t required

37. Programmatic Documents40 CFR 1502.20; 1508.18 • Prepared for major program, plan or policy • Often followed by tiering to site specific EISs or EAs prepared at subsequent decision stages • Stepped approach to analysis • Incorporates previous findings

38. Classified actions and information • Does not relieve the agency of the requirement to assess and document environmental impacts • Does impact (limit) the role that the public plays - other credentialed agency personnel may review

39. Role of EPA • Review and Comment on Environmental Impact of Proposed Legislation, Authorized Construction, Proposed Regulations, or any other Major Federal Agency Action (Section 309, Clean Air Act) • Office of Federal Activities Files EISs & Publishes Notices of Availability

40. Role of U.S. Institute • Provides Environmental Conflict Resolution assistance to the agencies • Third party neutral services supplement our informal conflict resolution efforts • CEQ must concur when 2 or more agencies are involved

41. The Value of NEPAThe CEQ Regulations Perspective: NEPA's purpose is not to generate paperwork--even excellent paperwork--but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.

42. The Value of NEPAThe Practical Perspective • Manage the Environmental Aspects to Accomplish Agency Mission and Goals, and serve the Public Interest • Integrate the requirements of NEPA with other planning and environmental review procedures required by other Federal, Tribal, state or local laws or by agency practice so that all permitting and review processes are integrated and not duplicative.

43. Final Thoughts on NEPA Process • Commence the NEPA process at the earliest possible time – emphasis is on early, up-front engagement • NEPA review must be completed before deciding whether and how to proceed • making any irreversible or irretrievable commitments of resources, • taking actions that would have an environmental impact • taking actions that would limit the choice of reasonable alternatives.

44. Questions?