Transcript The National Environmental Policy Act

The National
Environmental
Policy Act
An Overview
Horst G Greczmiel
Associate Director for NEPA Oversight
Council on Environmental Quality
November 2013
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.
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
1969 Santa Barbara Oil Spill
http://www.geog.ucsb.edu/~jeff/sb_69oilspill/
Public Reaction
Protest following the 1969 Santa Barbara Oil Spill
http://www.es.ucsb.edu/images/new/OilSpillProtest.jpg
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
Clearcutting in Olympic National Forest
http://reality.sculptors.com/~barefoot/PacificNW-2004/Olympic
Air Pollution
Smog in Houston, TX
http://www.utexas.edu/research/ceer/texaqs/participants/photos/
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.
“The nineteen-seventies absolutely must be the years when
America pays its debt to the past by reclaiming the purity
of its air, its waters and our living environment.
It is literally now or never.”
Richard M. Nixon, January 1, 1970
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).
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]
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.
Role of the Council on Environmental Quality
Policy 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).
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)
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 longterm 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)
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
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.
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
Hierarchy Of NEPA Analyses and
Documentation Processes:
Categorical Exclusion (CE / CATEX)
Environmental Assessment (EA)
Environmental Impact Statement (EIS)
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?
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.
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
Finding of No Significant Impact
40 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.
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))
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
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.
EIS: The Process Steps
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Notice of Intent
Scoping
Draft Environmental Impact Statement
Final Environmental Impact Statement
Record of Decision
Supplemental Environmental Impact
Statement
Notice of Intent
40 CFR 1508.22
• Describe proposed action and alternatives
• Describe proposed scoping process
• State name and address of agency contact
Scoping
40 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
Draft EIS
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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
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
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.
Record of Decision
•
•
•
•
The decision
Alternatives considered
Environmentally preferred alternative
Factors balanced in making decision
– economic and technical
– agency statutory mission
– national policies
Record of Decision
• Were all practicable means to avoid or
minimize harm adopted, and, if not,
why not.
• Describe applicable enforcement and
monitoring programs.
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
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
Programmatic Documents
40 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
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
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
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
The Value of NEPA
The 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.
The Value of NEPA
The 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.
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.
Questions?