National Environmental Policy Act: Wikis

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National Environmental Policy Act
US-GreatSeal-Obverse.svg
Full title National Environmental Policy Act of 1969
Acronym / colloquial name NEPA
Enacted by the 91st United States Congress
Effective January 1, 1970
Citations
Public Law P.L. 91-190
Stat. 83 Stat. 852 (1969)
Codification
Title(s) amended 42 (Public Health and Welfare)
U.S.C. sections created 42 U.S.C. § 4321 et seq.
Legislative history
  • Introduced in the Senate as S. 1075 by Henry M. Jackson on February 18, 1969
  • Committee consideration by: Senate Committee on Interior and Insular Affairs
  • Passed the Senate on July 10, 1969 (Unanimous)
  • Passed the House of Representatives on September 23, 1969 (372-15)
  • Reported by the joint conference committee on December 17, 1969; agreed to by the Senate on December 20, 1969 () and by the House of Representatives on December 23, 1969 ()
  • Signed into law by President Richard Nixon on January 1, 1970
Major amendments
Public Law 94-52, Jly 3, 1975, Public Law 94-83, Aug 9, 1975 and Public Law 97-258, section 4(b), Sep 13, 1982

The National Environmental Policy Act (NEPA) is a United States environmental law that established a U.S. national policy promoting the enhancement of the environment and also established the President's Council on Environmental Quality (CEQ).

NEPA's most significant effect was to set up procedural requirements for all federal government agencies to prepare Environmental Assessments (EAs) and Environmental Impact Statements (EISs). EAs and EISs contain statements of the environmental effects of proposed federal agency actions.[1] NEPA’s procedural requirements apply to all federal agencies in the executive branch. NEPA does not apply to the President, to Congress, or to the federal courts.[2]

Contents

History

NEPA came into existence following increased appreciation for the environment, and growing concerns about ecological and wildlife well-being, although still without major impacts on human health; indeed, the public outcry after the 1969 Santa Barbara oil spill was perhaps the leading catalyst. An Eisenhower-era Outdoor Recreation report, a Wilderness Act, Clean Air and Clean Water Acts, along with Rachel Carson's book Silent Spring, all reflect the growing concerns, public interest group efforts, and legislative discussion involved.[3] The law has since been applied to any project, federal, state or local, that involves federal funding or work performed by the federal government. Although enacted on January 1, 1970, its "short title" is "National Environmental Policy Act of 1969."

Contents

The preamble reads:

"To declare 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..."

NEPA contains three important sections:

  1. The declaration of national environmental policies and goals.
  2. The establishment of action-forcing provisions for federal agencies to enforce those policies and goals.
  3. The establishment of a Council on Environmental Quality (CEQ) in the Executive Office of the President.

The essential purpose of NEPA is to ensure that environmental factors are weighted equally when compared to other factors in the decision making process undertaken by federal agencies.The act establishes the national environmental policy, including a multidisciplinary approach to considering environmental effects in federal government agency decision making. The act also established the President's Council on Environmental Quality (CEQ). The CEQ was established to advise the President in the preparation of an annual environmental quality report addressing the state of federal agencies in implementing the act, on national policies nurture and promote the improvement of the environments quality and on the state of the environment.[4] The effectiveness of NEPA originates in its requirement of federal agencies to prepare an environmental statement to accompany reports and recommendations for funding from Congress. This document is called an Environmental Impact Statement (EIS). NEPA is an action-forcing piece of legislation, meaning that the act itself does not carry any criminal or civil sanctions. All enforcement of NEPA was to be obtained through the process of the court system.

A major federal action has been expanded to include most things that a federal agency could prohibit or regulate. In practice, a project is required to meet NEPA guidelines when a federal agency provides any portion of the financing for the project. Sometimes, however, review of a project by a federal employee can be viewed as a federal action and would then, therefore, require NEPA-compliant analysis be performed.

NEPA covers a vast array of federal agency actions, but not all actions are covered necessarily covered under NEPA. The act does not apply to purely private or purely public state action. This means that there is a complete absence of government influence or funding concerning that specific action. Exemptions and exclusions are also present within NEPA's guidelines. Exemptions from NEPA include specific federal projects detailed in legislation, EPA exemptions and functional equivalent exemptions. Functional Equivalent exemptions applies where compliance with other environmental laws requires environmental analysis similar to NEPA. These other environmental laws can include but are not limited to the Clean Air Act, Resource Conservation and Recovery Act, Safe Drinking Water Act and the Federal Insecticide, Fungicide and Rodenticide Act. The last exclusion form NEPA is a categorical exclusion. These exclusions are simply consist of categories of actions which do not individually or cumulatively have a significant effect on the human environment.

NEPA process

The NEPA process consists of an evaluation of all relevant environmental effects of a federal project or action undertaking, including a series of pertinent alternatives. There are three steps to undertake depending on whether or not significant findings lead to the eventual drafting of an EIS. These three steps include: determination of whether or not the proposed action is covered under NEPA; preparation of an environmental assessment or Finding of No Significant Impact (FONSI); and preparation and drafting of an Environmental Impact Statement.

Step 1

This step focuses on determining whether or not the proposed action is covered under NEPA. An action will either be found to lie under the coverage of NEPA or will be exempt via a categorical exclusion. An action may be found to be categorically excluded from undertaking a detailed environmental assessment of all potential impacts if certain criteria are met in which the federal agency has previously determined that no significant impacts were present. An action may also be found to be excluded from NEPA's coverage if certain exemptions apply such as, legislative exemptions; is being undertaken by the EPA which is excluded from NEPA's coverage and/or is an action that requires thorough environmental impact assessment due to the requirements of other environmental laws such as the Safe Drinking Water Act or Resource Conservation and Recovery Act.

Step 2

This second step is only undertaken if the proposed action is found to lie within the jurisdiction of NEPA. The lead agency is now required to compose a written environmental assessment (EA) to determine whether or not the federal action would possess significant impacts on the environment. If after a thorough investigation and drafting of the environmental assessment no substantial effects on the environment are found the agency may produce a Finding of No Significant Impact (FONSI). If the agency feels comfortable with its FONSI, then they may move forward with implementing their proposed action or plan. However, it is suggested that even if small questions are raised as to whether there are undoubtedly no impacts on the environment it is suggested that the agency move away from its FONSI. If the environmental assessment finds the action to present "significant" impacts to the environment, then creation of an Environmental Impact Statement is required. Pragmatically, early within the process, the agency will internally "scope" the proposed project or plan to reach a preliminary determination as to whether it feels that a FONSI will be reached. If so, the agency will proceed with the preparation of the EA. If the agency believes that the impacts resulting from the action will be "significant," generally it will proceed directly to the preparation of an EIS without first preparing an EA.

Step 3

This third and final step focuses on the preparation of an Environmental Impact Statement. The EIS is a more detailed evaluation of the environmental impacts when compared to the content of the environmental assessment. The crafting of EIS has many components including public, outside party and other federal agency input concerning the preparation of the EIS. These groups subsequently comment on the draft EIS.

In some circumstance an agency may wish to undertake the construction of an EIS without the initial drafting of the environmental assessment. This will take place under circumstances in which the agency believes that he action will undoubtedly have adverse affects on the environment or is considered an environmentally controversial issue.

After the final EIS is prepared the lead agency will prepare a public record of its decision. This record addresses how the findings of the EIS were incorporated into the agency's final decision making process.

EA (Environmental Assessment)

An EA is a screening document used to determine if an agency will need to prepare either an EIS or construct a FONSI. EAs are concise public documents that include: a brief discussion of the need for the proposal; of alternatives and a listing of agencies and person consulted.

Most agency procedures do no require public involvement prior to finalizing an EA document. Agencies advise that facilitating public comment be considered at the draft EA stage.

EAs need to be of sufficient length to ensure that the underlying decision about whether to prepare an EIS is legitimate, but should not attempt to be a substitute for an EIS

FONSI (Finding Of No Significant Impact)

A FONSI presents the reasons why an action will not have a significant effect on the human environment. It must include the EA or summary of the EA that supports the FONSI determination.

MFASAQHE (Major Federal Actions Significantly Effecting the Quality of the Human Environment)

When (significant) federal actions dealing with NEPA infringe with the human environment, the term MFASAQHE is used.

EIS (Environmental Impact Statement)

If it is determined that a proposed federal action does not fall within a designated categorical exclusion or does not qualify for a FONSI, then the responsible agency or agencies must prepare an EIS.

Purpose of an EIS is to ultimately help public officials make informed decisions that are a reflection of an understanding of environmental consequences and the alternatives available.

An EIS is required to describe:

• The environmental impacts of the proposed action

• Any adverse environmental impacts that cannot be avoided should the proposal be implemented

• The reasonable 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

• Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.

Council on Environmental Quality (CEQ)

The CEQ was modeled after the Council of Economic Advisers created by the employment act of 1946. Shortly after the act was signed into law, President Nixon expanded CEQ's mandate by Executive Order directing it to issue guidelines to federal agencies for the proper preparation of Environmental Impact Statements and to assemble and coordinate federal programs related to environmental quality. The Council was placed within the executive office of the President and is composed of three members. These members must be appointed by the president and subsequently confirmed by the Senate. The CEQ has some fundamental roles which include, assisting and advising the President in the preparation of the annual environmental quality report on the present progress of federal agencies in implementing the act, on national policies to nurture and promote the improvement of environmental quality and on the current state of the environment.

The CEQ has played a key part in the development of the EIS process. Its initial guidelines were issued in 1971 and required each department and agency of the government to adopt its own guidelines consistent with the guidelines established by CEQ. These set forth guidelines did not carry the status of formal agency regulations but were often held up in the court of law as such. Eventually President Jimmy Carter authorized via an Executive Order to adopt regulations rather than simple guidelines on EIS preparation. However, the CEQ has no authority to enforce it's regulations.

The CEQ regulations begin by calling for agencies to integrate NEPA regulations and requirements with other various planning requirements at the earliest possible time to ensure that all decisions are reflective of environmental values, avoid potential delays in the future and eliminate potential future conflicts. NEPA's action-forcing provision, Section 102(2)(C), stipulates that an EIS shall be "included in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment..."

The CEQ has taken strides within the past several years to prepare advisory documentation to explain the general structure of the environmental document, the nature of cumulative impacts and other advisories. The CEQ also maintains a web site that is useful for NEPA information and guidance at www.nepa.gov.

See also

References

  1. ^ U.S. Council on Environmental Quality (CEQ) (December 2007). A Citizen's Guide to the NEPA: Having your Voice Heard. Washington, D.C.. pp. 2–7. http://www.nepa.gov/nepa/Citizens_Guide_Dec07.pdf. Retrieved 2008-10-11. 
  2. ^ CEQ. 40 CFR Section 1508.12: Terminology: Federal agency. Code of Federal Regulations.
  3. ^ NEPA, 42 U.S.C. § 4321.
  4. ^ CEQ. 40 CFR Parts 1500 to 1508. Code of Federal Regulations.
  • Sullivan, Thomas F.P. (2007). Environmental Law Handbook. Blue Ridge Summit, PA: Government Institutes/Scarecrow Press. ISBN 978-0865870246. 

External links

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