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About the Author
Dustin Till is an associate at Marten Law Group PLLC in Seattle, Washington. Dustin's practice focuses on environmental and land use litigation, and he has specialized experience with natural resource, permitting, and environmental review issues in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Alaska, Idaho, and Missouri, and has appeared before the Eighth Circuit Court of Appeals, federal district court, and the Washington State Court of Appeals.
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On January 1, 1970, President Nixon signed into law the nation's first comprehensive environmental statute - the National Environmental Policy Act (NEPA). 42 U.S.C. §§ 4321-4370. NEPA was adopted in response to growing public concern about the federal government's role in causing or encouraging environmental degradation. Referred to as the "Magna Carta" of environmental protection, NEPA announced the nation's environmental policy and established a process which requires federal agencies to consider the environmental consequences of their actions. Following the adoption of NEPA, fifteen states and the District of Columbia have established environmental review programs which cover state, county, and local actions.
Statement of National Environmental Policy
NEPA opens with an ambitious announcement of environmental policies, which are intended to: "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 . . . ." 43 U.S.C. § 4321. Specifically, NEPA was enacted to:
- Fulfill the responsibilities of each generation as a trustee of the environment for succeeding generations;
- Assure safe, healthy, productive, and aesthetically and culturally pleasing surroundings for all Americans;
- Attain the widest range of beneficial uses of the environment without degradation, risk, safety, or other undesirable and unintended consequences;
- Preserve important historical, cultural, and natural aspects of our national heritage and maintain, wherever possible, an environment that supports diversity and variety of individual choice;
- Achieve a balance between population and resource uses that permits high standards of living and a wide sharing of life's amenities; and
- Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. Id.at §§ 4331(b)(1)-(6).
Federal Environmental Review under NEPA
NEPA is most famous (or perhaps notorious) for its action-forcing provisions requiring federal agencies to consider the environmental consequences of their actions. Unlike most other federal environmental laws, NEPA is a purely process-oriented statute and is not prescriptive in nature. In other words, NEPA does not mandate specific environmental results and grants federal agencies broad discretion to determine the extent of environmental protection required for proposed actions.
NEPA requires federal agencies to prepare a "detailed statement" (known as an environmental impact statement or EIS) for proposed "major Federal actions significantly affecting the quality of the human environment." Id.at § 4332(C). Environmental review under NEPA involves three basic steps:
- Determining whether NEPA applies (i.e., is the proposal a "major federal action");
- Undertaking an environmental assessment (EA) to determine whether the proposed project will have environmental consequences significant enough to necessitate the preparation of an EIS; and
- Preparing the EIS, if necessary.
- The Threshold Decision - Does NEPA Apply?
NEPA only applies to proposed "major federal actions," so the first step in the NEPA process is determining whether the proposal will constitute such an action. Federal agencies must make this threshold determination at the earliest possible time during the planning process. 40 C.F.R. § 1501.2.
- Major Federal Action
A broad array of federal actions are subject to NEPA, including the adoption of policies, plans, and programs, and the approval of specific projects. Id.at § 1508.18(b). The term "major" does not refer to the project's size, but rather, to the project's potential environmental impacts. Id. at § 1808.18(a) ("Major reinforces but does not have a meaning independent of significantly"). NEPA is triggered when a federal agency proposes, approves, or will implement the action. Id.at § 1508.18(a) (Defining "major federal action" as those "actions with effects that may be major and which are potentially subject to Federal control or responsibility"). While NEPA generally does not apply to non-federal actions, it does apply to non-federal actions subject to discretionary control by a federal agency. Id. For example, NEPA may be triggered when a non-federal entity requires a permit, regulatory decision, or funding from a federal agency. See Southwest Williamson County v. Slater, 243 F.3d 270 (6th Cir. 1) ("[T]here are two bases for finding that a non-federal project constitutes a 'major Federal action' such that NEPA requirements apply: (1) when the non-federal project restricts of limits the statutorily prescribed federal decision-makers' choice of reasonable alternatives; or (2) when the federal decision-makers have authority to exercise sufficient control or responsibility over the non-federal project so as to influence the outcome of the project . . . [b]oth tests require a situation-specific and fact-intensive analysis"). In addition, if federal involvement becomes significant enough, even a non-federal action can become "federalized" for NEPA purposes. See, e.g., Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1029 (4th Cir. 1986); Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449 U.S. 836 (1980); Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1976). Even then, however, it is generally the federal agency that must comply with NEPA, not state or local governments, or private parties. Macht v. Skinner, 916 F.2d 13 (D.C. Cir. 1990)
- Categorical Exclusions
Not all federal actions, however, are subject to NEPA review. NEPA regulations developed by CEQ grant federal agencies the authority to exempt categories of actions from NEPA review. Categorical exclusions (known at CATEXs or CEs) are defined as "a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency . . . ." 40 C.F.R. § 1508.4. Agencies are not required to prepare an EA or EIS for proposals subject to a categorical exclusion. Id. As part of its ongoing NEPA reforms, CEQ has encouraged the expanded use of categorical exclusions. See The National Environmental Policy Act - Guidance on Categorical Exclusions, 71 Fed. Reg. 54,816 (Sept. 19, 6). The development and implementation of categorical exclusions is the source of heated litigation. See, e.g., Colorado Wild v. United States Forest Service, 435 F.3d 1204 (10th Cir. 6).
- Is the Project Likely to Have Significant Environmental Impacts?
- Environmental Assessment
Once an agency determines that its proposal is a major federal action triggering NEPA, it must determine whether the project will "significantly affect the quality of the human environment," and thereby require an EIS. To make this determination, the agency prepares an EA, which is a "concise public document that . . . [b]riefly provides sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of non-significance." 40 C.F.R. § 1508.9(a). See also Cronin v. U.S. Dep't of Agric., 919 F.2d 439 (7th Cir. 1990) ("An [EA] is a rough-cut, low-budget [EIS] designed to show whether a full-fledged [EIS] - which is very costly and time consuming to prepare and has been the kiss of death to many a federal project - is necessary"). An EA must discuss the following:
To determine whether the proposal will "significantly" affect the human environment, agencies must asses the project's context and intensity. Id. at § 1508.27. A project's context includes society, the affected region, the affected interests, and the locality. Id. A project's intensity refers to the significance of its impacts, including beneficial impacts. Id. Generally, the more sensitive the context (i.e. the impacted resource), the less intense an impact needs to be in order to trigger the need to prepare an EIS. Agencies need not consider remote and speculative impacts. City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1974). However, agencies must consider the cumulative effect of a proposal on other actions. 40 C.F.R. § 1508.7; Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985).
- The need for the proposed action;
- The proposed action and alternatives required by NEPA Section 102(2)(E);
- The probable environmental impacts of the proposed action and alternatives; and
- The agencies and persons consulted during the EA preparation. Id.at § 1508.9(b). Additionally, some agencies have prepared specific procedures for preparing an EA. See 40 C.F.R. § 1507.3.
- Finding of No Significant Impact
If an EA concludes that the proposal will not have significant environmental impacts, then the responsible agency prepares a finding of no significance (FONSI). A FONSI is a brief public document that describes why the proposal will not have significant impacts, and serves as the agency's legal determination that an EIS is not required. 40 C.F.R. § 1501.4(e), 1508.13. Federal agencies must make FONSIs available for public review. Id. at 1506.6(b). Each federal agency has developed its own public notice requirements for public review of FONSIs.
- Mitigated FONSI
Alternatively, projects with potential significant impacts may proceed without an EIS if the agency convincingly demonstrates that the impacts can be mitigated to less-than-significant levels. While NEPA does not explicitly contemplate mitigated FONSIs, they have become common practice and have been consistently upheld by the courts. See, e.g., Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678 (D.C. Cir. 1982). (Holding that an EIS was not required where the agency took a "hard look" at the environmental impacts and convincingly established that mitigation would reduce impacts to less-than-significant levels). However, courts have declined to uphold mitigated FONSIs where the agency provided unsupported conclusions that mitigation will be successful. Wyoming Outdoor Council v. USACOE, 351 F.Supp.2d 1232 (D. Wyo. 5). The availability of mitigated FONSIs has encouraged federal agencies to minimize the environmental consequences of their actions in order to avoid preparing costly and time-consuming EISes.
- Environmental Impact Statements
If an EA concludes that the proposal will significantly affect the environment, the agency must prepare an EIS. EIS preparation requires:
- Publication of a notice of intent (NOI);
- Undertake scoping for the EIS;
- Prepare a draft EIS and circulate for public review; and
- Prepare a final EIS and circulate for public review.
- Notice of Intent
Published in the Federal Register, the notice of intent (NOI) provides legal notice that a federal agency is preparing an EIS. 40 C.F.R. § 1501.7. The NOI must identify the lead agency and describe the project and its alternatives. Id. at § 1508.22.
Scoping is the process that the lead agency uses to obtain input from the public and other agencies on the extent of the proposed action, the range of reasonable alternatives, and the types of impacts to be evaluated in the EIS. Id.at 1508.25. The extent of the action includes consideration of connected actions, similar actions, and cumulative actions. The range of alternatives must include a no-action alternative, other reasonable alternatives, and potential mitigation measures. The types of impacts include direct, indirect, and cumulative impacts. The scoping process is designed to limit the scope of an EIS and focus it on only the relevant actions, alternatives, and impacts.
- The Draft EIS and Public Review
After the scoping process is complete, the lead agency prepares a draft EIS, which must discuss the following:
The draft EIS must analyze the project's direct, indirect, and cumulative impacts. Direct impacts are those impacts that occur at the same time and place as the action. 40 C.F.R. § 1508.8(a). An example of a direct impact would be road construction and timber harvests under a Forest Service timber permit. Indirect impacts include reasonably foreseeable effects caused by a proposed action, but which occur later in time or at a place removed from the project's direct effects. Id.at § 1508.8(b). For example, increased automobile pollution could be a reasonably foreseeable indirect impact of constructing a new federal facility. The lead agency, however, is not required to engage in speculation or consider every conceivable possible impact. The Ocean Conservancy v. Gutierrez, 394 F. Supp.2d 147 (D.D.C. 5) ("[A]n agency need only consider those environmental effects that are ' reasonably foreseeable.' Indeed, NEPA does not mandate that every conceivable possibility which someone might dream up must be explored in an EIS") (internal citations and quotations removed, emphasis in original).
- The environmental impact of the proposed action;
- Any adverse environmental effects that will be unavoidable if the proposed action is implemented;
- Alternatives to the proposed action;
- The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and
- Any irreversible and irretrievable commitments of resources resulting from implementing the proposed action. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11.
Cumulative impacts are those impacts that may be minor individually, but collectively significant. 40 C.F.R. § 1508.7. For example, multiple small timber sales within a discrete region may cumulatively have significant impacts on habitat. The courts, not to mention federal agencies, have struggled with how cumulative impacts should be evaluated. Both CEQ and EPA have issued guidance documents on evaluating cumulative impacts. See Considering Cumulative Effects under the National Environmental Policy Act (CEQ 1997) (available at http://www.nepa.gov/nepa/ccenepa/ccenepa.htm (last visited April 6, 7)); Consideration of Cumulative Impacts in EPA Review of NEPA Documents (EPA 1999) (available at http://www.epa.gov/compliance/resources/policies/nepa/cumulative.pdf (last visited April 6, 7)); 40 C.F.R. § 1506.6(b)(2).
The lead agency must provide interested persons and agencies notice that the draft EIS is available for review and comment. Additionally, notice must be published in the Federal Register for proposed actions with effects of national concern. Id.at § 1506.6(b)(3). Public hearings may also be required for projects involving substantial environmental controversy. Id. at § 1506(c).
- The Final EIS
The final EIS must include and respond to all substantive comments (either individually or collectively) received during the draft EIS public comment period. Id.at § 1503.4(b). Based on public comments, the lead agency may: modify the proposed action or alternatives; develop and evaluate new alternatives; supplement, improve, or modify the impact analysis; make factual corrections; or explain why no further analysis is required. The final EIS must also be made available for public review. Id. at §§ 1502.19, 1506.6.
Agencies also have an obligation to supplement a final EIS based on substantial changes to the proposed action, or significant new circumstances or information relevant to a project's environmental impacts. Id.at § 1502.9(c). A supplemental EIS must be subject to public review in the same fashion as a draft or final EIS. Id.
Following publication of the final EIS, the agency is required to prepare a record of decision (ROD) when it selects its preferred alternative from those presented in the final EIS. Id.at § 1505.2. The ROD is a concise document that describes the agency's action, the alternatives considered, and states whether the agency's preferred alternative adopts all practicable mitigation measures, and if so, why not. Id.Because NEPA is a procedural statute, and is not prescriptive, NEPA does not require federal agencies to select the most environmentally-preferred alternative. Instead, NEPA merely requires federal agencies to take a "hard look" at the environmental consequences of their proposals. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).
Judicial Review Under NEPA
NEPA is a citizen-enforced statute which has generated significant litigation. The NEPA statute itself does not contain a private right of action, so plaintiffs must challenge an agency's compliance with NEPA under the Administrative Procedure Act. 42 U.S.C. § 500, et seq. Courts review agency compliance with NEPA under the highly deferential arbitrary and capricious standard of review. Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) cert. denied, 412 U.S. 908 (1973).
Plaintiffs must establish standing to challenge an agency's compliance with NEPA. To satisfy standing requirements imposed by Article III of the Constitution, a plaintiff must demonstrate that: (1) it has suffered a concrete and specific injury in fact that is actual or imminent; (2) the injury is fairly traceable to the defendant's challenged conduct; and (3) the injury is likely to be redressed by a favorable decision. Friends of the Earth v. Laidlaw Environmental Servs., 528 U.S. 167, 180-181 (0). Additionally, plaintiffs must establish prudential standing by demonstrating that their claims fall within the zone of interests protected by NEPA. Bennett v. Spears, 520 U.S. 154 (1997).
In NEPA cases, a project's environmental impacts are the injury in fact so long as the plaintiff demonstrates that it has interest that would be directly affected by the project. Sierra Club v. Morton, 405 U.S. 727 (1972). Once a plaintiff in a procedural NEPA challenge demonstrates injury in fact, the causation and redressability standards are relaxed. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Citizens for Better Forestry v. USDA, 341 F.3d 961 (9th Cir. 2003).
State Little NEPAs
Fifteen states and the District of Columbia have adopted environmental review procedurures analogous to NEPA that generally apply to state, county, and local decision-making. Unlike NEPA, however, many of the state statutes have substantive requirements in addition to NEPA-like procedural requirements. For example, under the Washington State Environmental Policy Act (SEPA), projects with unmitigated significant environmental impacts will be denied. WAC 197-11-660(1)(f)(i). The following jurisdictions have adopted environmental review procedures:
California Environmental Quality Act (Cal. Pub. Res. Code §§ 21000-21177)
Connecticut Environmental Policy Act (Conn. Gen. Stat. §§ 22a-a to 22a-1h)
District of Columbia
District of Columbia Environmental Policy Act (D.C. Code Ann. §§ 66-981 to 66-990)
Georgia Environmental Policy Act (Ga. Code Ann. §§12-16-1 to 12-16-8)
Hawaii Environmental Impact Statement Law (Hawaii Rev. Stat. §§ 343-1 to 343-8)
Indiana Environmental Quality Act (Ind. Code Ann. §§ 12-12-4-1 to 13-12-4-10)
Maryland Environmental Policy Act (Md. Nat. Res. Code Ann. §§ 1-301 to 1-305)
Massachusetts Environmental Policy Act (Mass. Gen. Laws. Ann. Ch. 30 §§ 61, 62-62H)
Minnesota Environmental Policy Act (Minn. Stat. Ann. §§ 116D.01-116D.06)
Montana Environmental Policy Act (Mont. Code Ann. §§ 75-1-101 to 75-1-105; 75-1-201 to 75-1-207)
New York State Environmental Quality Review Act (N.Y. Envtl. Conserv. Law §§ 8-0101 to 8-0117)
North Carolina Environmental Policy Act (N.C. Gen. Stat. §§ 113A-1 to 113A-13)
South Dakota (S.D. Codified Laws Ann. §§ 34A-9-1 to 34A-9-13)
Virginia Environmental Policy Act (Va. Code §§ 3.1-18.8, 10.1-1188 to 10.1-1192)
Washington State Environmental Policy Act (Wa. Rev. Code §§ 43.21C.010 to 43.21C.914)
Wisconsin Environmental Policy Act (Wis. Stat. Ann. §§ 1.11)