National Environmental Policy Act of (1969)
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.A. § 4331 et seq.) was a revolutionary piece of legislation. NEPA established for the first time national policies and goals for the protection of the environment. NEPA aims to encourage harmony between people and the environment, promote efforts to prevent or eliminate damage to the environment and the biosphere, and enrich the understanding of ecological systems and natural resources important to the country.
NEPA is divided into two titles. Title I contains a basic national charter for protection of the environment. Section 101 is entitled "Declaration of the National Environmental Policy." Title II establishes the Council on Environmental Quality (CEQ), an EXECUTIVE BRANCH watchdog organization that monitors the progress toward the goals set forth in Section 101 of NEPA. The CEQ advises the president on environmental issues and provides guidance to all federal agencies, which are required by NEPA to cooperate with the CEQ. The CEQ prepares an ANNUAL REPORT on environmental quality, evaluates federal programs and activities affecting the environment, and gathers and provides statistical information.
NEPA requires that every federal agency submit an environmental impact statement (EIS) with every legislative recommendation or program proposing major federal projects that will most likely affect the quality of the surrounding environment. An EIS may be required for such projects as rerouting an interstate highway, building a new dam, or expanding a ski resort on federally owned land. The first question NEPA asks is whether the proposed action merits a "categorical exclusion." If an action has been studied in the past and does not have significant impact, or if it can be compared with different activities that the law defines as not having significant impact, then no further NEPA studies are necessary. The agency can then implement its proposed action.
If the proposed action is not excluded from further study, the next question asked is whether the action will have a significant impact on the environment. If the answer is yes, NEPA outlines a detailed process for an EIS. If the answer is unknown, a less detailed study or an environ-mental assessment (EA) is prepared.
An EA is an overview of potential impacts. Enough analysis is done to determine either that the more detailed EIS is necessary or that the action will not have a significant impact on the environment.
Preparing the EIS is a well-defined process. A notice of intent is published in the Federal Register informing the public that a study will be done. The general public, federal and state agencies, and Native American tribes are given the opportunity to comment on the proposal. Next, a draft EIS is written, and a forty-five-day period for public comment is set. At the end of the comment period, the federal agency drafts a final EIS that responds to oral and written comments received during the public review of the draft. The agency, after a thirty-day waiting period, issues its record of decision, which discusses the decision, identifies the alternatives, and indicates whether all practicable means to avoid or minimize environmental harm from the selected alternative were adopted. The federal agency may then begin to implement its decision.
The EIS is a tool to assist in decision making, providing information about the positive and negative environmental effects of the proposed undertaking and its alternatives. The EIS must also examine the impact of not implementing the proposed action. In this no-action alternative, the agency may continue to use existing approaches. Although NEPA requires agencies to consider the environmental consequences of their actions, it does not force them to take the most environmentally sound alternative nor does it dictate the least expensive alternative.
Matthews, Joan Leary. 2003. "Restrictive Standing in State NEPA and Land Use Cases: Have Some States Gone Too Far?" Zoning and Planning Law Report 26 (May): 1–8.
Snowden, Suzanne O. 2003. "Judicial Review and Environmental Analysis Under NEPA: 'Timing is Everything'." Environmental Law Reporter 33 (January): 10050–61.