NEPA

Volume 23, Number 4, Spring 2009

The APA’s Influence on the Development of the National Environmental Policy Act
The significant environmental challenges of today, such as confronting climate change, avoiding deforestation, responding to our increasingly fragile marine resources, or establishing mechanisms for valuing and securing ecosystem services, present an opportune time to revisit how 42 U.S.C. § 4321 et seq., the National Environmental Policy Act of 1969 (NEPA), now at forty, became what it is today—a procedural statute. When Congress passed NEPA it became touted as the Magna Carta of environmental laws, yet by 1980 the Act had become a process-oriented statute rather than a substantive policy governing federal agency decisions....This article, therefore, briefly reviews how NEPA became the “procedural” statute that it is today and the role the Administrative Procedure Act played in that transformation.
Sam Kalen

Features

CEQ’s “Forty Questions:” The Key to Understanding NEPA
The “Forty Most Asked Questions Concerning CEQ’s National Policy Act Regulations” (Forty Questions) of the Council on Environmental Quality (CEQ) are the most relied-on interpretative guidance for the National Environmental Policy Act (NEPA) and its implementing regulations. But what are they? And how did they come into being?
Nicholas C. Yost

Tribal Environmental Policy Acts and the Landscape of Environmental Law
Where do federally recognized Indian tribes fit in the development of environmental law? Where do American Indian and Alaska Native cultures fit into the landscape of environmental protection and natural resources management? The answer that I would give to both questions is a lot of places. Tribal cultures are deeply rooted in the web of life in North America, with particular tribal cultures rooted in particular ecosystems. Many of these roots go down through countless generations, with some reaching into mythic time.
Dean B. Suagee

NEPA and Climate Change: Are We at the “Tipping Point”?
Recent scientific data on climate change and a Ninth Circuit panel opinion, however, raise serious questions about whether there can be any “threshold” below which one can reasonably assert “no significant impact” for a project’s emission of greenhouse gases (GHGs) that contribute to climate change. This article explores both the new science on “abrupt climate change” and “positive feedback loops” in climate change and the Ninth Circuit’s decision in Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir. 2008). As a practical matter, these two forces may generate a “tipping point” of their own that may well topple the traditional “no significant impact” analysis for many federal projects.
Norman A. Dupont

Alternative Energy and the Rebirth of NEPA
In the 2008 presidential election, the candidates debated sweeping reforms to U.S. energy policy in order to meet domestic energy needs, reduce U.S. dependence on foreign oil, protect against terrorism, and address global climate change. Central to the energy debate was the need to expand alternative sources of energy, such as wind, solar, and geothermal. With the election behind us, U.S. energy policy under President Obama is expected to pursue research and development of alternative energy sources, extend the Production Tax Credit for wind, solar, and geothermal development, and mandate a renewable energy portfolio, with 10 percent of the nation’s energy coming from renewable sources in 2012 and 25 percent by 2025.
Frederick R. Anderson and Geraldine E. Edens

Assessing the Significance of Climate Change under Little NEPAs
Climate change has emerged as a central environmental concern on multiple fronts, as a physical phenomenon, a cultural idea, a political issue, and, inevitably, a field of law. The scientific consensus confirms the existence of warming trends and changing weather patterns due to increased atmospheric levels of greenhouse gases (GHGs).
Norman F. Carlin and Todd W. Smith

Indirect Impacts and Climate Change: Assessing NEPA’s Reach
Does NEPA require an agency analyzing the environmental impacts of a freeway interchange to also consider the environmental effects of a possible assembly plant development at the new exit? If so, what about the siting of suppliers for the possible assembly plant at an industrial park across town? The traffic impacts of new employees traveling to that industrial park? The installation of new power lines to that industrial park?
C. Grady Moore, III, Leslie Garrett Allen, and Mary R. Forman

Collaborative Processes under NEPA: Are We There Yet?
Since its passage in 1969, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., has been the principal impetus for public participation in environmental decision making by federal agencies. However, the statute itself and the regulations implemented by the Council on Environmental Quality (CEQ) do little to provide explicit guidance on how public participation and collaborative processes are to be utilized.
Mark C. Travis

Categorical Exclusions: Are Agencies Silencing the Public’s Voice?
For almost forty years, the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), has provided the public with a vital opportunity to participate in federal government decisions. NEPA requires federal agencies to provide opportunities for meaningful public involvement when assessing the environmental effects of their proposed actions. Prior to the enactment of NEPA, federal agencies could undertake major federal projects without public consultation, leaving the public few opportunities for participation in the decision-making process. Today, because of NEPA, citizens have opportunities to comment on proposed federal decisions and federal agencies are better informed in making their decisions.
Stephanie Young

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