THE NATIONAL ENVIRONMENTAL POLICY ACT ("NEPA"), 42 U.S.C.
SS 4321 et seq.
-- "The National Environmental Policy Act is our basic
national charter for protection of the environment. It
establishes policy, sets goals (Section 101) and provides
means (Section 102) for carrying out the policy."
40 C.F.R. 1500.1(a).
A. Section 101: Goals and Policy
1. Basic Policy: The Federal Government shall
"use all practical means and measures to
create and maintain conditions under which man
and nature can exist in productive harmony, and
fulfill the social, economic, and other
requirements of present and future generations
of Americans." NEPA S 101(a).
2. Basic Goals: Federal plans, functions,
programs and resources must be used to achieve
six general goals specified in Section 101(b),
including the assurance of "safe, healthful,
productive, and aesthetically and culturally
pleasuring surroundings" for all Americans.
B. Section 102: NEPA's "Action-Forcing Provision"
-- This section directs all federal agencies, to the
fullest extent possible, to meet, the following
1. Utilize a systematic interdisciplinary approach
in planning and decision making that may affect
the environment. NEPA 102(2)(A).
2. Identify and develop methods and procedures to
ensure that presently unquantified amenities
and values may be given appropriate
consideration in decisionmaking along with
economic and technical considerations.
3. Include an Environmental Impact Statement (EIS)
in every recommendation or report on proposals
for legislation and other major Federal actions
significantly affecting the quality of the
human environment. NEPA 102(2)(C).
4. Study, develop and describe appropriate
alternatives to recommended courses of action.
C. Role of the Council on Environmental Quality ("CEQ")
1. Created by Section 202 of NEPA.
2. Consists of three members appointed by the
President, with the advice and consent of the
3. Advises the President on federal programs and
policies affecting the environment.
4. Issues and enforces regulations governing
federal agency implementation of NEPA.
NOTE: Since 1970, CEQ issued three sets of
guidelines that addressed only NEPA's EIS
requirement. Then, on May 24, 1977, President
Carter issued Executive Order No. 11991
directing CEQ to issue regulations governing
agency compliance with all aspects of NEPA.
These regulations, 40 C.F.R. Sections 1500-08,
were issued on November 29, 1978 and took
effect on July 30, 1979. 43 Fed. Reg. 55978
(Nov. 29, 1978).
The CEQ regulations are merely advisory,
however, and do not have the force of law.
Aertsen v. Landrieu, 637 F.2d 12 (1st Cir.
D. Role of EPA Roving Review
-- Section 309 of the Clean Air Act authorizes EPA
to review and comment in writing on the
environmental impact of proposed legislation,
regulations or federal actions for which an EIS is
required. If EPA determines that any such
legislation, regulation or action is unsatisfactory
from the standpoint of public health or welfare, it
must publish notice of its determination and refer
the matter to CEQ. The latter's procedures
following a referral are found at Section 1504 of
the CEQ regulations.
II. THE EIS PROCESS
A. Agencies Subject to NEPA
-- All agencies of the Federal government are
subject to NEPA. Congress, the courts and the
President are not "agencies" for purposes of NEPA.
NOTE: In some statutes enacted since NEPA, Congress
has created express exemptions from the EIS
requirement. In certain situations, such as where
there is a clear and unavoidable statutory conflict,
courts may exempt agencies from NEPA's
requirements. In addition, several courts have
granted EPA implied exemptions from NEPA on the
theory that the Agency's adherence to procedures
under environmental statutes constitutes the
functional equivalent of an EIS.
B. Determining Whether an EIS Is Required
1. Statutory Criteria
a. Basic Test -- An EIS is required for any
proposed action that is:
(ii) federal; and
(iii) significantly affects the quality of
the human environment.
b. "Major Federal Action" -- "[I includes
actions with effects that may be major and
which are potentially subject to Federal
control and responsibility."
Section 1508.18. The term includes
proposed legislation, adoption of rules,
regulations and policy; adoption of formal
plans; and approval of specific projects.
Thus federal permits, licenses, loans,
grants, leases and so forth may require
preparation of an EIS although actual
federal involvement in the activity is
minimal. "Effects" includes all impacts
1/ This citation refers to the section number of the new CEQ
regulations described above.
caused by the action, whether directly or
indirectly. Section 1508.8.
NOTE: In Andrus v. Sierra Club, 442 U.S. 347
(1979), the U.S. Supreme Court ruled that the
EIS requirement does not apply to appropriation
c. "Significant Effects" -- Covers a broad
spectrum ranging from not trivial to
momentous and "requires consideration of
both context and intensity."
Section 1508.27. Significance exists "if
it is reasonable to anticipate a
cumulatively significant impact on the
environment." Section 1508.27(b)(7). Also
note that majorjr reinforces, but does not
have a meaning independent of
significantly." Section 1508.18.
2. Administrative Procedure
a. Categorical Exclusion -- Agencies may
exclude from the EIS or environmental
assessment requirement (see below) an
action which belongs to a category of
actions that have been found by the agency
not to have an individual or cumulative
significant environmental impact. Sections
1501.4(a)(2) and 1508.4.
b. Environmental Assessment -- When in doubt
agencies must prepare an environmental
assessment, which is used in determining
whether an EIS must be prepared. Sections
1501.3, 1501.4(b) and 1508.9.
NOTE: Unlike an EIS, an environmental
assessment may be prepared by a permits
applicant. Section 1506.5(b). But the agency
must make its own evaluation of the
c. The Decision -- Based on the environmental
assessment, the agency either issues a
finding of no significant impact or
proceeds to prepare an EIS. Sections
1501.4(e) and 1508.13.
NOTE: The Agency's finding of no significant
impact is subject to judicial review.
C. Who is Responsible for the EIS?
1. Lead Agency -- Where more than one agency is
involved in the action, a lead agency must
supervise the preparation of an EIS. In the
absence of agreement, CEQ may designate a lead
agency. Section 1501.5.
NOTE: Other agencies with jurisdiction over or
expertise in the proposed action must act as
cooperating agencies. Section 1501.6. These
agencies may be given responsibility for preparing
certain portions of the EIS.
2. State Involvement
a. Joint Lead Agencies -- A Federal and state
agency may act as joint lead agencies in
preparing an EIS. Section 1501.5(b).
b. Responsibility -- The Federal agency is
responsible for EIS preparation except that
a state agency or official may prepare an
EIS for an action funded under a program of
grants to the states, provided the five
specific conditions set forth in
Section 102(2)(D) of NEPA are met. This
provision allows, for example, a state
agency to prepare an EIS on highway
projects funded by the Federal government.
3. Private Persons
-- May not under any circumstances prepare the
EIS. Private persons, however, may supply
information to be used in an EIS. The Federal
agency must independently evaluate the
information and is responsible for its
accuracy. Section 1506.5(a).
NOTE: The EIS must list the names and
qualifications of all persons primarily
responsible for preparing the statement.
D. When Must the EIS Be Prepared?
-- The agency must begin to prepare the EIS as soon
as possible after the agency begins developing or is
presented with a proposal, so that the final EIS may
be included in any recommendation or report on the
proposal. The EIS must be prepared early enough so
that it can serve practically as an important
contribution to the decisionmaking process and will
not be used to rationalize or justify decisions
See Sections 1501.2, 1502.4(c)(3), 1502.5, 1508.23.
E. Contents and Scope of the EIS
1. Contents -- Section 102(2)(C) of NEPA requires
the EIS to address:
a. the environmental impact of the proposed
b. any adverse environmental effects that
cannot be avoided should the proposal be
c. alternatives to the proposed action;
d. the relationship between local short-term
uses of man's environment and the
maintenance and enhancement of long-term
e. irreversible and irretrievable commitments
of resources that would be involved in the
proposed action should it be implemented.
NOTE: The range of impacts to be considered is
extremely broad. However, it is not without
limits. For example, the Supreme Court in 1983
reversed a lower court ruling that the NRC must
consider the potential impact on the
psychological health of local residents before
allowing Three Mile Island to resume
operation. Metropolitan Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766 (1983).
a. "Scoping" -- The CEQ regulations require
agencies to undertake a process known as
scoping as soon as practicable after its
decision to prepare an EIS. Scoping is
aimed at determining the scope of an EIS
through a consideration of three types of
action (connected, cumulative, and similar
actions); three types of alternatives (no
action, reasonable alternatives, and
mitigation); and three types of impacts
(direct, indirect, and cumulative). See
Sections 1501.7 and 1508.25.
b. The Programmatic EIS Looking at the
Forest -- A broad E5S on a large-scale
program such as a timber management plan
for a national forest or a regional coal
c. "Tiering" Looking at the Tree -- Refers
to the coverage of general matters in a
broad EIS, such as a programmatic
statement, with subsequent narrower
statements that concentrate solely on
regional or site-specific projects.
Sections 1502.20 and 1508.28.
NOTE: In some cases, agencies may prepare
supplements to an EIS where, for example,
substantial changes in the project are
proposed. Section 1502.9(c). The test for
determining whether a supplemental EIS is
needed is essentially the same as the test
for determining whether an EIS is needed.
3. Analysis of Alternatives -- Represents the
heart of an EIS. Agencies must:
a. rigorously explore and objectively evaluate
all reasonable alternatives;
b. devote substantial treatment, to each
c. include reasonable alternatives not within
the jurisdiction of the lead agency;
d. include the alternative of no action;
e. identify the agency's preferred alternative
or alternatives; and
f. include appropriate mitigation measures not
already included in the proposed action or
alternatives. Section 1502.14.
NOTE: The scope of alternatives to be
considered in an EIS is governed by a rule of
reason. An EIS will not be found defective
"simply because the agency failed to include
every alternative device and thought
conceivable by the mind of man." Vermont
Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 551 (1978).
ALSO NOTE: Section 102(2)(E) of NEPA requires
Federal agencies to consider alternative
courses of action regardless of whether an EIS
F. Reaching a Decision
1. Circulation of a Draft EIS -- Except for
legislative proposals, a draft EIS must be
made available to the applicant, the
public, and federal, state and local
agencies. Section 1502.9. A period of not
less than 45 days must be provided for
submitting comments. Section 1506.10(c).
2. Comments -- Federal agencies with
jurisdiction by law over or special
expertise in any environmental impact of
the proposed action must submit comments.
3. Issuance of the Final EIS -- The final EIS
must respond to all comments submitted on
the draft statement. Section 1503.4.
4. The Decision
a. Timing -- No decision on the proposed
action may be made or recorded until
30 days after publication of notice in
the Federal Register of the filing of
the final EIS with EPA (or 90 days
after notice of the draft EIS, if
later). Section 1506.10(b).
b. Record of Decision -- At the time of
its decision or recommendation, the
agency must prepare "a concise public
record of decision," which specifies
the alternatives) considered to be
c. Implementation -- Agencies may include
appropriate conditions, such as
monitoring or mitigation requirements,
in implementing grants, permits or
approvals. Section 1505.3.
5. Judicial Review -- Where an agency is found
to have violated NEPA (by, for example,
preparing an inadequate EIS), the action
may be enjoined pending full agency
G. Unresolved Issues
1. Interplay between NEPA and subsequently
enacted environmental statutes.
2. Extent to which an agency may consider
mitigation measures in determining whether
an action will have a significant
III. AGENCY PROCEDURES
A. Duty to Meet CEQ Regulations
-- All agencies of the federal government were to
have adopted procedures to meet the new CEQ
regulations by July 30, 1979. According to CEQ's
Tenth Progress Report on Agency Implementing
Procedures Under the National Environmental Policy
Act, 46 Fed. Reg. 25502 (May 7, 1981), more than 25
federal agencies had not yet adopted final
procedures, although most of' the agencies had
proposed procedures. The CEQ regulations will apply
to these agencies pending issuance and approval of
B. EPA Procedures
-- EPA has issued procedures to comply with the CEQ
regulations. 40 C.F.R. 6.
1. Scope: Congress and the courts have exempted
numerous EPA activities from the EIS
requirement. The proposed procedures would
apply whenever EPA is required to prepare an
EIS (such as for new source NPDES permits) or
chooses to do so.
2. EIS Procedures for New Source NPDES Permits
a. Construction Moratorium -- EPA's NPDES
regulations provide that no on-site
construction of a new source for which an
EIS is required may commence before
issuance of a final permit incorporating
EIS-derived requirements or before
execution by the applicant of an agreement
which requires compliance with all such
requirements. 40 C.F.R. 122.47(c)(4).
b. Applicant's Obligation -- Any information
needed by EPA in its review must be
provided in an "environmental information
document" prepared by the applicant, unless
a contractor already has been retained
under a "third party agreement" between EPA
and the applicant to prepare an EIS.
40 C.F.R. 6.604(b), 6.604(g)(3).