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 ------- 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 ------- 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 ------- (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 ------- 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. ------- • 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 ------- 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 ------- 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." ------- 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. ------- • 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. ------- |