United States EPA/600/F-92/008
Environmental Protection September 1989
Agency
Enforcement and Compliance Monitoring (LE-133)
Facts About
The National
Environmental
Policy Act
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The National Environmental Policy Act (NEPA),
[42 U.S.C. 4321 et seq.], was signed into law on
January 1, 1970. The Act establishes national
environmental policy and goals for the
protection, maintenance, and enhancement of
the environment and it provides a process for
implementing these goals within the federal
agencies. The Act also establishes the Council
on Environmental Quality (CEQ).
NEPA Requirements
Title I of NEPA contains a Declaration of
National Environmental Policy which requires
the federal government to use all practicable
means to create and maintain conditions under
which man and nature can exist in productive
harmony. Section 102 requires federal agencies
to incorporate environmental considerations in
their planning and decision-making through a
systematic interdisciplinary approach.
Specifically, all federal agencies are to prepare
detailed statements assessing the environmental
impact of and alternatives to major federal
actions significantly affecting the environment.
These statements are commonly referred to as
environmental impact statements (EISs). Section
102 also requires federal agencies to lend
appropriate support to initiatives and programs
designed to anticipate and prevent a decline in
the quality of mankind's world environment.
Title II of NEPA establishes the Council on
Environmental Quality (CEQ) and requires the
President to transmit to Congress, with the
assistance of CEQ, an annual Environmental
Quality Report on the state of the environment.
Oversight Of NEPA
The Council on Environmental Quality, which is
headed by a fulltime Chairperson, oversees
NEPA. A staff assists the Council. The duties
and functions of the Council are listed in Title
II, Section 204 of NEPA and include: gathering
information on the conditions and trends in
environmental, quality; evaluating federal
programs in light of the goals established in
Title I of the Act; developing and promoting
national policies to improve environmental
quality; and conducting studies, surveys,
research, and analyses relating to ecosystems
and environmental quality.
Printed on Recycled Paper
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Implementation
In 1978 CEQ promulgated regulations [40 CFR
Parts 1500-1508] implementing NEPA which are
binding on all federal agencies. The regulations
address the procedural provisions of NEPA and
the administration of the NEPA process,
including preparation of EISs. To date, the only
change in the NEPA regulations occurred on
May 27,1986, when CEQ amended Section
1502.22 of its regulations to clarify how agencies
are to carry out their environmental evaluations
in situations where information is incomplete or
unavailable.
CEQ has also issued guidance on various
aspects of the regulations including: an
information document on "Forty Most Asked
Questions Concerning CEQ's National
Environmental Policy Act", Scoping Guidance,
and Guidance Regarding NEPA Regulations.
Additionally, most federal agencies have
promulgated their own NEPA regulations and
guidance which generally follow the CEQ
procedures but are tailored for the specific
mission and activities of the agency.
The NEPA Process
The NEPA process consists of an evaluation of
the environmental effects of a federal
undertaking including its alternatives. There are
three levels of analysis depending on whether or
not an undertaking could significantly affect the
environment. These three levels include:
categorical exclusion determination; preparation
of an environmental assessment/finding of no
significant impact (EA/FONSI); and preparation
of an environmental impact statement (EIS).
At the first level, an undertaking may be
categorically excluded from a detailed
environmental analysis if it meets certain
criteria which a federal agency has previously
determined as having no significant
environmental impact. A number of agencies
have developed lists of actions which are
normally categorically excluded from
environmental evaluation under their NEPA
regulations.
At the second level of analysis, a federal
agency prepares a written environmental
assessment (EA) to determine whether or not a
federal undertaking would significantly affect
the environment. If the answer is no, the agency
issues a finding of no significant impact
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(FONSI). The FONSI may address measures
which an agency- will take to reduce (mitigate)
potentially significant impacts.
If the EA determines that the environmental
consequences of a proposed federal undertaking
may be significant, an EIS is prepared. An EIS is
a more detailed evaluation of the proposed
action and alternatives. The public, other federal
agencies and outside parties may provide input
into the preparation of an EIS and then
comment on the draft EIS when it is completed.
If a federal agency anticipates that an
undertaking may significantly impact the
environment, or if a project is environmentally
controversial, a federal agency may choose to
prepare an EIS without having to first prepare
anEA.
After a final EIS is prepared and at the time of
its decision, a federal agency will prepare a
public record of its decision addressing how the
findings of the EIS, including consideration of
alternatives, were incorporated into the agency's
decision-making process.
During the latter half of the 1980s,
approximately 450 draft and final EISs were
prepared annually on federal actions. During
that same period between 10,000 and 20,000
EAs were prepared annually.
EA And EIS Components
An EA is described in Section 1508.9 of the
Council's NEPA regulations. Generally, an EA
includes brief discussions of the following: the
need for the proposal; alternatives (when there
is an unresolved conflict concerning alternative
uses of available resources); the environmental
impacts of the proposed action and alternatives;
and a listing of agencies and persons consulted.
An EIS, which is described in Part 1502 of the
regulations, should include discussions of the
purpose of and need for the action, alternatives,
the affected environment, the environmental
consequences of the proposed action, lists of
preparers, agencies, organizations and persons
to whom the statement is sent, an index, and an
appendix (if any).
Federal Agency Roles
The role of a federal agency in the NEPA
process depends on the agency's expertise and
relationship to the proposed undertaking. The
agency carrying out the federal action is
responsible for complying with the requirements
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of NEPA. In some cases, there may be more than
one federal agency involved in an undertaking.
In this situation, a lead agency is designated to
supervise preparation of the environmental
analysis. Federal agencies, together with state or
local agencies, may act as joint lead agencies.
A federal agency having special expertise with
respect to an environmental issue or jurisdiction
by law may be a cooperating agency in the
NEPA process. A cooperating agency has the
responsibility to assist the lead agency by
participating in the NEPA process at the earliest
possible time; by participating in the scoping
process; in developing information and
preparing environmental analyses including
portions of the environmental impact statement
concerning which the cooperating agency has
special expertise; and in making available staff
support at the lead agency's request to enhance
the lead agency's interdisciplinary capabilities.
Under Section 1504 of CEQ's NEPA
regulations, federal agencies may refer to CEQ
interagency disagreements concerning proposed
federal actions that might cause unsatisfactory
environmental effects. CEQ's role, when it
accepts a referral, is generally to develop
findings and recommendations, consistent with
the policy goals of Section 101 of NEPA. The
referral process consists of certain steps and is
carried out within a specified time frame.
In deciding whether or not to refer an action,
an agency must consider the extent of potential
adverse environmental impacts including:
possible violation of national environmental
standards or policies, severity, geographical
scope, duration, importance as precedents, and
availability of environmentally preferable
alternatives. A referring agency must advise the
lead agency of its intention to refer the matter to
CEQ and notify CEQ. In advising the lead
agency, the referring agency will address the
reasons for the referral and recommendations for
remedying the situation. If the lead agency does
not satisfactorily respond to the referral agency,
then the matter is forwarded to CEQ. CEQ may
take several actions to resolve the situation
including:
• Discussing the matter with both agencies.
• Holding public meetings to obtain additional
information.
• Determining that the issue is not of national
importance and that the agencies should
proceed with their decision-making.
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• Publishing its findings and recommendations.
• Submitting (when appropriate) the referral
and its recommendations to the President for
action. Although not binding, CEQ's
recommendations carry weight and influence.
Agencies generally follow CEQ's guidance.
EPA's Role
The Environmental Protection Agency, like
other federal agencies, prepares and reviews
NEPA documents. However, EPA has a unique
responsibility in the NEPA review process.
Under Section 309 of the Clean Air Act, EPA is
required to review and publicly comment on the
environmental impacts of major federal actions
including actions which are the subject of EISs.
If EPA determines that the action is
environmentally unsatisfactory, it is required by
Section 309 to refer the matter to CEQ. In the
period between 1974 to 1989, there were 24
referrals to CEQ, of which 14 were submitted by
EPA. EPA's 309 review process is described at
the end of this pamphlet.
Also, in accordance with a Memorandum of
Agreement between EPA and CEQ, EPA carries
out the operational duties associated with the
administrative aspects of the EIS filing process.
The Office of Federal Activities in EPA has been
designated the official recipient in EPA of all
EISs prepared by federal agencies.
The Public's Role
The public has an important role in the NEPA
process, particularly during scoping, in
providing input on what issues should be
addressed in an EIS and in commenting on the
findings in an agency's NEPA documents. The
public can participate in the NEPA process by
attending NEPA-related hearings or public
meetings and by submitting comments directly
to the lead agency. The lead agency must take
into consideration all comments received from
the public and other parties on NEPA
documents during the comment period.
NEPA And Other Environmental Laws
The NEPA review takes into consideration the
sffect that an action may have on various
aspects of the environment. Some of these areas,
such as impacts on endangered species and
cultural resources, are also covered by other
environmental laws including the Endangered
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Species Act, the National Historic Preservation
Act, etc. To reduce paperwork and avoid delays
in the decision-making process, federal agencies
must, to the fullest extent possible, integrate the
NEPA review with the analytic and consultation
requirements of these other environmental laws.
The NEPA review also takes into
consideration whether a federal undertaking is
in compliance with statutes such as the Clean
Water Act and the Clean Air Act. In these cases,
the lead agency would consult with the agencies
overseeing these statutes to ensure compliance
with any criteria and standards promulgated
under these laws.
Integration Into Federal Decision-Making
The CEQ NEPA regulations require federal
agencies to make the environmental review
documents and any comments and responses a
part of the record in formal rulemaking and
adjudicatory proceedings. These documents
must also accompany the proposal through the
federal agency's review process. In making its
decision on a proposal, an agency must consider
a full range of alternatives including ones
evaluated in the NEPA review.
Most federal agencies have promulgated
NEPA regulations which address how the NEPA
review will be incorporated into their various
programs. Agencies are encouraged to prepare
broad EISs covering policy or programmatic
actions and to tier subsequent NEPA reviews to
individual actions included within the program
or policy. For legislative proposals, the NEPA
process is integrated with the legislative process
of Congress. Federal agencies are required to
integrate the NEPA review early in program or
project planning. In the preparation of EISs, the
scoping process provides for early identification
and consideration of environmental issues and
alternatives.
The Benefits Of NEPA
NEPA has caused federal agencies to incorporate
environmental values in their decision-making.
For most agencies, the NEPA review is now an
integral part of program planning. To oversee
compliance with NEPA, many agencies have
organized multi-disciplinary staffs. The primary
benefit has been more protection for the
environment in federal undertakings. This has
come about because of the NEPA review process
and resultant changes in projects, such as
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alterations in project design, location or
operation; agency consideration of a greater
range of alternatives; implementation of
mitigation measures; and enhanced opportunity
for public involvement in the decision-making
process. An additional benefit has been a
reduction of some project costs because of
changes made in projects. The NEPA review
process has also enabled agencies to address
compliance with other environmental laws as
part of a single review process rather than
separate reviews under each law, thereby
reducing the amount of paperwork, staff time,
and effort.
State NEPAs
Following the passage of NEPA, which only
applies to federal actions, a number of states
passed laws which incorporate consideration of
environmental effects into state actions. Many of
the state NEPAs, or "little NEPAs" as they are
commonly called, are modelled after the federal
NEPA. Presently, 11 states have passed laws
with comprehensive environmental review
requirements. Fourteen states have limited
environmental review requirements established
by executive order or other administrative
directives.
EPA's "309" Review Process
Section 309 of the Clean Air Act states:
(a) "The Administrator shall review and
comment in writing on the environmental
impact of any matter relating to duties and
responsibilities granted pursuant to this chapter
or other provisions of the authority of the
Administrator, contained in any (1) legislation
proposed by any federal department or agency,
(2) newly authorized federal projects for
construction and any major federal agency
action (other than a project for construction) to
which Section 4332 (2) (C) of this title applies,
and (3) proposed regulations published by any
department or agency of the federal government.
Such written comment shall be made public at
the conclusion of any such review.
(b) In the event the Administrator determines
that any such legislation, action, or regulation is
unsatisfactory from the stand-point of public
health or welfare or environmental quality, he
shall publish his determination and the matter
shall be referred to the Council on
Environmental Quality."
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This Section was added to the Clean Air Act
in 1970, at the time the NEPA was passed and
EPA was formed. The rationale was that the
EISs that federal agencies would be developing
under NEPA should have an independent
review and that the newly formed EPA should
perform it.
EPA developed implementing procedures in
1971 to carry out this responsibility and, in
conjunction with the CEQ, has since refined
these procedures. Operating procedures are
contained in the manual, Policies and
Procedures for the Review of Federal Actions
Impacting the Environment (revised in 1984).
In accordance with these operating
procedures, EPA reviews, comments, and makes
the comments available to the public, on all
federal draft and final EISs, proposed
environmental regulations, and other proposed
major actions EPA considers to have significant!
environmental effects. EPA has reviewed all of
the draft and final EISs prepared by federal
agencies since the passage of NEPA.
The major elements of the 309 review process
include the following:
• EPA reviews and comments on both the
adequacy of the analysis and the environmental
impacts of the proposed action itself.
• EPA comments on issues related to its "duties
and responsibilities", which include all
environmental media (i.e., air, water, etc.),
methodologies related to media-impact
assessment, and areas related to its regulatory
responsibilities.
• EPA comments on potential violation of or
inconsistency with national environmental
standards and determines whether adequate
information has been provided to
assess potential environmental impacts of the
proposed action.
• In general, the degree to which the Agency
gets involved in attempting to modify a
proposed project depends on the level of
environmental impacts, the ability and
willingness of the proposng federal agency to
mitigate those impacts, and the level of
responsibility EPA has over the type of impact
at issue.
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• If the action is a federal project to be located
in or on a specific site, the appropriate EPA
regional office has the jurisdiction and delegated
responsibility for carrying out the Section 309
CAA review and working with the proposing
federal agency to resolve any problems. If the
action by the proposing federal
department/agency is legislative or regulatory,
generally the Section 309 CAA review will be
conducted directly in EPA headquarters.
• For federal-project cases, EPA headquarters
becomes involved if the region finds that the
proposed action in the draft EIS is
"environmentally unsatisfactory'', or that the
draft EIS is "inadequate" to assess the
potentially significant environmental impacts of
proposed actions. In these cases, headquarters
must approve the regional comment letter before
it is sent. In addition, EPA headquarters works
with regional personnel in informing interested
parties about the EPA action and will assist the
region, as needed, in meeting with the
proposing federal agency to resolve the issues.
The CEQ is always notified of a draft EIS which
has been rated "unsatisfactory" or "inadequate"
by EPA.
• If the region finds that the subsequent final
EIS is still "environmentally unsatisfactory", the
region recommends to the Administrator that
the matter be referred to the CEQ for resolution.
At this time, EPA headquarters becomes
significantly involved in the factual
determination and judgment on the EIS.
• The process is carried out so as to ensure the
independence of the EPA review responsibilities
and to coordinate in a manner which
emphasizes consultation with the lead agency
and informing interested parties of EPA actions
and concerns.
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