National Environmental Policy Act (1969)
National Environmental Policy Act (1969)
William V. Luneburg
Excerpt from the National Environmental Policy Act
To declare a 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; and to establish a Council on Environmental Quality.
After 150 years of rapid industrialization and urban expansion, along with two world wars, all of which required significant natural resource extraction, the environment of the United States by the end of the 1960s was under considerable stress. Many forested public and private lands had been or were being cleared of trees; industrial water pollution and acid mine drainage made rivers and streams unusable for various purposes, including recreation; many wild and scenic rivers were no longer free-flowing but dammed and silent; smog and other types of air pollution blanketed urban areas; and concrete highways and the developments they encouraged were consuming large areas of rural America, to name just a few of the more obvious sources of concern. At the same time, the increasingly affluent American family that traveled extensively across the continent and was witness to these changes began to put more value on the elimination of these threats to public health and of the destruction and despoliation of the places, vistas, and natural landmarks that had come to symbolize the American wilderness as it presented itself to the explorers, early settlers, and pioneers.
In this context, it was clear to many concerned and knowledgeable observers that agencies of the federal government were themselves significantly responsible for the deteriorating state of the environment within the United States. Federal agencies undertook massive projects themselves (e.g., building dams) or approved work undertaken by state governments or private companies (e.g., interstate highway construction) that involved environmentally destructive consequences. However, confronted with claims that they should consider the potential environmental effects in deciding what actions to take or avoid, federal officials responded by arguing that they had not been authorized by Congress to protect the environment; rather, their respective responsibilities were to build dams, highways or airports, to insure that timber production could meet the demand for new housing construction, and to otherwise carry out the nonenvironmental goals of the legislature.
PROVISIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT
The National Environmental Policy Act of 1969 (NEPA) (P.L. 91-190, 83 Stat. 852), signed by President Richard Nixon and effective on January 1, 1970, was Congress's attempt to eliminate these pleas of helplessness offered up by the federal bureaucracy. It is a statute that, for its authority, relies on Congress's well-nigh plenary power, or complete authority, to organize the way in which federal agencies go about their work.
The National Environmental Policy Act was the first of the modern federal environmental statutes, shortly followed in the early 1970s by the enactment of those federal laws that now form the bedrock of environmental legislation in the United States. Like those other laws, NEPA responded to the increasing public outcry, symbolized by the first Earth Day in 1970, for protection of the national and global environments. Unlike those other laws, however, NEPA is short and lacks significant detail. Rather, to a great extent, it is composed of ambitious pronouncements of purpose and policy phrased in broad generalities. For example, Section 101 makes it the "continuing responsibility of the Federal Government ... to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may ... fulfill the responsibilities of each generation as trustee of the environment for succeeding generations ... [and] assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.... "
The most important specific legislative accomplishments of NEPA are three: (1) the expansion of the legal authority of federal agencies to require them, as part of their decision-making processes, to consider the environmental consequences of each action they take; (2) the imposition of a requirement that, prior to making any final decision on a major program, plan, or project, each federal agency prepare and consider a "statement" examining the environmental costs and benefits of action and alternatives to avoid environmental harm (the so-called Environmental Impact Statement [EIS] requirement); and (3) the creation of the President's Council on Environmental Quality (CEQ).
THE LEGISLATIVE HISTORY OF NEPA
The legislative history of NEPA is as remarkable for what it leaves unstated (and perhaps unconsidered) as for what it expressly says. As early as 1959, Congress had considered legislation purporting to offer a national policy on conservation and use of natural resources as well as to establish a presidential advisory counsel on the environment. Nothing came of that legislative effort. However, in 1969 Senator Henry Jackson of Washington and Representative John Dingell of Michigan introduced similar bills in the Senate and the House of Representatives. As originally conceived, there was no "operational" aspect to the proposed bills, that is to say, no specific mechanism to try to insure that environmental protection would be forthcoming. But at a hearing in the Senate, Professor Lynton Caldwell of Indiana University noted the need for "an actionforcing, operational aspect" to the bill being considered. Senator Jackson and his staff then worked with Professor Caldwell to draft what later became Section 102(2)(C) of NEPA, the requirement that, at the time of proposing legislation or a major federal action that might significantly effect the environment, the agency responsible for the action prepare an EIS. With modest changes and little debate or other legislative history to suggest how Congress intended this provision to be implemented, it became law and a keystone of environmental policy as implemented by the federal bureaucracy. Of all the provisions of NEPA, the impact statement requirement has provoked by far the largest amount of attention within and outside the government.
Other amendments were attached to the bill enacted as NEPA as it made its way through the legislative process. Two of the most important reflected to some degree a "turf" fight within the Senate over the control of federal environmental policy. Senator Edmund Muskie of Maine chaired the subcommittee that was to produce the Clean Air and Clean Water Acts. He did not want the environmental standards created by or under that or other environmental legislation disregarded or otherwise undercut by NEPA. Nor did he want the views of the federal agencies subject to the oversight of his subcommittee ignored in the decision-making processes required by NEPA. Accordingly, the bill was amended to clarify that NEPA did not trump the environmental obligations imposed by other federal law and that federal agencies preparing Environmental Impact Statements had to solicit comments on draft Environmental Impact Statements from the U.S. Environmental Protection Agency and other federal agencies that possessed the primary responsibility for environmental protection.
THE ROLE OF THE COUNCIL ON ENVIRONMENTAL QUALITY
Both the original bills and the one finally enacted and signed by President Nixon established a Council on Environmental Quality within the Executive Office of the President. In essence the role of the CEQ, a three-member body, is to gather authoritative information on the state of the environment and assist in the dissemination of that information through preparation of an annual report as well as conduct studies relating to ecological systems and environmental quality, oversee federal agency compliance with the policy and other obligations imposed by NEPA, and recommend to the president national policies for improvement of environmental quality.
In connection with these functions the CEQ has adopted a set of elaborate regulations that restate, clarify, and elaborate on the obligations that NEPA imposes on federal agencies. As a practical matter, the most important components of those regulations are the provisions dealing with the need to prepare an EIS, the timing for such preparation, and the contents of an acceptable EIS. These regulations divide agency actions into three categories: actions that generally do not amount to major actions requiring in-depth environmental analysis; actions that are, without question, major ones likely to have significant environmental effects and, therefore, subject to the EIS requirement; and, finally, those for which it is not clear whether an EIS is necessary, so the agency must first prepare an Environmental Assessment (EA) in order to determine the scope and nature of the potential effects and whether they amount to the "significant" effects that trigger full-blown EIS analysis.
CHALLENGES TO THE ACT
In the early years following the enactment of NEPA, there was widespread federal agency resistance to its mandates, not surprisingly since compliance could delay program and project implementation and add significantly to costs. Hundreds of lawsuits were brought against agencies on the grounds that no EIS had been prepared when it should have been or, even if prepared, the EIS was fatally incomplete or otherwise inadequate in addressing relevant environmental impacts and alternatives to avoid those impacts. Many federal actions were stopped in their tracks by courts issuing orders to agencies to comply with NEPA. However, because of the costs of noncompliance with NEPA, increasingly agencies have more seriously considered their NEPA obligations: hundreds of EAs and EISs are prepared every year, and many of those comprise volumes of data and analysis.
While lawsuits continue to be brought on the basis of violations of NEPA, it is increasingly difficult to win them. In part, this is because of a series of Supreme Court cases, including, for example, Vermont Yankee Nuclear Power Corp. v. NRDC (1978), that have consistently found that NEPA merely mandates a particular decision-making process; it does not mandate certain results in terms of actions taken or environmental effects avoided. Accordingly, NEPA operates merely as a "stop and think first" statute: before a federal agency acts, it must consider the possible environmental consequences; having prepared an appropriate EA or EIS and having taken it into account, the agency can go right ahead with its plans—despite alternative courses of action that might mitigate or eliminate the adverse environmental consequences that may result from the proposed agency action.
As a result, more than thirty years after the enactment of NEPA, debate continues to rage with regard to whether the statute has resulted in agency decision making that minimizes, to the greatest practicable extent, the adverse impact of federal actions on the natural environment. This debate has not, however, discouraged states, other countries, and the international community from transplanting NEPA's technique of environmental impact assessment into their own distinctive legal systems.
See also: Clean Air Act; Emergency Planning and Community Right-to-Know Act; Federal Water Pollution Control Act.
Anderson, Frederick R. NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act. Washington, DC: Resources for the Future, 1973.
Caldwell, Lynton K. The National Environmental Policy Act: An Agenda for the Future. Bloomington, IN: Indiana University Press, 1998.
Council on Environmental Quality. NEPAnet. July 2003. <http://ceq.eh.doe.gov/nepa/nepanet.htm>.
Mandelker, Daniel R. NEPA Law and Litigation, 2nd ed. New York: Clark Boardman Callaghan, 1992.
The National Environmental Policy Act: A Study of Effectiveness after Twenty-Five Years. Washington, DC: Council on Environmental Quality, Executive Office of the President, 1997.
Taylor, Serge. Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform. Stanford, CA: Stanford University Press, 1984.
"National Environmental Policy Act (1969)." Major Acts of Congress. . Encyclopedia.com. (July 25, 2017). http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/national-environmental-policy-act-1969
"National Environmental Policy Act (1969)." Major Acts of Congress. . Retrieved July 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/national-environmental-policy-act-1969
National Environmental Policy Act
National Environmental Policy Act
As concern for environmental problems grew during the 1960s, the need for better project planning to prevent environmental degradation became obvious. Too many projects (e.g., dams, power plants, highways) had been built without regard for their negative impacts on water quality, soil erosion, aquatic and terrestrial habitat , or negative economic and social impacts on nearby communities. Many of these projects caused irreversible harm to the environment . Congress recognized that federal projects were culprits of environmental degradation, and that federal and state agencies would continue to support such projects unless Congressional statute forced them to consider their negative environmental impacts.
The National Environmental Policy Act (NEPA) of 1969 requires all federal agencies to use an interdisciplinary approach in their project planning and decision-making. Because federal agencies had no history or desire to work together on projects, tried to protect their "turf," and did not want the expense of the environmental impact assessment process to affect their budgets, they initially fought with Congress to prevent NEPA from being enacted. But since that time, every federal agency has developed a set of NEPA guidelines for its personnel to follow.
NEPA Components and Requirements
The National Environmental Policy Act has several major requirements. First, it provides a comprehensive approach to environmental protection by requiring that federally funded or federally permitted projects must perform environmental impact assessments and write an environmental impact statement (EIS) if that project would have a potentially significant environmental impact. An environmental assessment (EA) is conducted to determine whether impacts are potentially significant.
The EIS must describe:
- The proposed action;
- Various environmental impacts of the proposed action;
- Unavoidable adverse environmental effects of the action;
- Alternatives (and their negative impacts) to the proposed action; and
- Long-term environmental damages.
Alternatives often give decisionmakers methods to mitigate some negative project impacts or carry out actions entirely different than those originally planned. For example, the city of Denver, Colorado proposed the Two Forks Dam to obtain additional water supplies. In 1989, the U.S. Environmental Protection Agency denied approval when one EIS alternative suggested making Denver meter all buildings and houses in order to stop wasting the water it already had.
Research for environmental impact assessments is done in categories such as: land use and development; social and economic effects; relocations and neighborhood effects; noise; traffic; transportation; environmental health and public safety; historical and archaeological resources; visual resources; air quality; water resources (including wetlands ); wildlife and aquatic species and their habitats; floodplains; and coastal areas. Because of its complexity and comprehensive nature, the research is expensive. EISs for large projects typically cost tens of millions of dollars and take years to complete.
To ensure public participation, the public is notified when the draft EIS (DEIS) is published; all notices regarding NEPA processes are published in the Federal Register. The public and special interest groups typically have 45 to 60 days to read and comment on it, either in writing or at public hearings. Federal agencies must incorporate public comment into the final EIS (FEIS). The FEIS states which of the alternatives has been chosen for implementation, and the justifications for selecting that alternative over the others.
NEPA is important to water resources management because the assessment done for the water resources portion of an EIS helps decisionmakers balance the numerous and complex variables when considering a project. They must take into account how their project can have a ripple effect on water resources, wildlife, habitat, and local communities. An EIS helps illustrate that water resources must be managed not only for immediate human uses, but for long-term ecosystem sustainability. For example, a recent controversy over how to manage the Missouri River is pitting the interests of upstream recreational economies and their necessary habitat preservation with downstream economic interests of barge traffic and flood control.
see also Balancing Diverse Interests; Environmental Movement, Role of Water in the; Land-Use Planning; Legislation, Federal Water; Public Participation.
Laurel E. Phoenix
Marriott, Betty Bowers. Environmental Impact Assessment: A Practical Guide. New York: McGraw-Hill, 1997.
Reimold, Robert J. Watershed Management: Practice, Policies, and Coordination. New York: McGraw Hill, 1998.
Rogers, Peter. America's Water: Federal Roles and Responsibilities. Cambridge, MA: MIT Press, 1993.
Council on Environmental Quality. <http://www.whitehouse.gov/ceq/>.
Federal Register. U.S. Government Printing Office. <http://www.access.gpo.gov/su_docs/aces/aces140.html>.
U.S. Government's NEPAnet. <http://ceq.eh.doe.gov/nepa/nepanet.htm>.
COUNCIL ON ENVIRONMENTAL QUALITY
The National Environmental Policy Act (NEPA) created the Council on Environmental Quality and placed it in the Executive Office of the President. The council oversees implementation of NEPA, advises the president on environmental issues, and writes an annual report evaluating national environmental conditions and trends, and regulatory adequacy to protect the environment.
"National Environmental Policy Act." Water:Science and Issues. . Encyclopedia.com. (July 25, 2017). http://www.encyclopedia.com/science/news-wires-white-papers-and-books/national-environmental-policy-act
"National Environmental Policy Act." Water:Science and Issues. . Retrieved July 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/science/news-wires-white-papers-and-books/national-environmental-policy-act
National Environmental Policy Act of 1969
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.
"National Environmental Policy Act of 1969." West's Encyclopedia of American Law. . Encyclopedia.com. (July 25, 2017). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/national-environmental-policy-act-1969
"National Environmental Policy Act of 1969." West's Encyclopedia of American Law. . Retrieved July 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/national-environmental-policy-act-1969
National Environmental Policy Act of 1969
NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
By the 1960s it had become clear that human activities were producing profound effects on the natural environment. The National Environmental Policy Act of 1969 (NEPA) was the first comprehensive environmental law enacted in the United States, and it established a broad national framework to:
- Encourage productive and enjoyable between man and his environment.
- Promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.
- Enrich the understanding of the ecological systems and natural resources important to the nation.
- Establish a Council on Environmental Quality.
Specifically, NEPA requires that agencies assess the environmental impacts of significant activities such as the construction of airports, buildings, military complexes, and highways; parkland purchases; and other proposed federal activities. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all federal agencies and are the most visible NEPA requirements.
The Council on Environmental Quality (CEQ) is based in the Executive Office of the President, and the chair of the CEQ reports to the president. The president must file an Environmental Quality Report to Congress each year. The CEQ has the job of assisting the president with preparation of this report, along with a number of responsibilities related to gathering information and developing national policies on the environment.
Soon after its establishment, the CEQ played a major in the establishment of the Environmental Protection Agency (EPA), in 1970, and since that time it has continued to be the voice for the environment within the White House. The CEQ serves as a forum for the settlement of disputes about environmental policy within the federal government where various cabinet agencies and White House offices come together to resolve issues over major policies. While the administrator of the EPA and the secretary of the interior are the most visible public figures with environmental responsibility within the federal government, the director of CEQ often serves in an advisory capacity to the president of the United States.
Perhaps one of the most important consequences of NEPA was to require that every federal agency incorporate environmental considerations into decision making. This began a process of incorporating environmental information into the work of agencies that had no prior environmental expertise and made protecting the environment and natural resources an objective of all federal agencies. As a result, most U.S. agencies have an expert staff to assess the environmental consequences of their actions.
The NEPA also served as a precedent that influenced environmental legislation in the fifty states and in other countries. The notion of an environmental impact assessment for significant activities has been incorporated into numerous other legislative efforts—often with other requirements, such as public hearings and approval processes. This in turn has increased the involvement of stakeholders in environmental decisions in many parts of the world.
Lynn R. Goldman
(see also: Environmental Impact Statement; Environmental Protection Agency; Pollution )
"National Environmental Policy Act of 1969." Encyclopedia of Public Health. . Encyclopedia.com. (July 25, 2017). http://www.encyclopedia.com/education/encyclopedias-almanacs-transcripts-and-maps/national-environmental-policy-act-1969
"National Environmental Policy Act of 1969." Encyclopedia of Public Health. . Retrieved July 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/education/encyclopedias-almanacs-transcripts-and-maps/national-environmental-policy-act-1969
National Environmental Policy Act (NEPA)
National Environmental Policy Act (NEPA)
When signed into law in 1970, the National Environmental Policy Act (NEPA) was a visionary and wide-reaching statute that required U.S. agencies to fully identify, analyze, and weigh the environmental impacts of their decisions. Insofar as most modern land-use planning requires agency approvals, and industrial and commercial activity that results in pollution typically requires agency-issued permits, the NEPA-mandated environmental review process has dramatically affected modern lifestyles, the American economy and, obviously, the environment.
NEPA is essentially procedural, in that it simply requires agencies to proceed through certain steps of environmental review. It does not create substantive legal rights. Although NEPA is a federal statute, many states and even municipalities have enacted their own environmental review statutes. While statutes may differ from state to state (New York's, for instance, provides for substantive obligations and enforcement mechanisms), they incorporate many of NEPA's basic elements. NEPA, in fact, is the model for numerous similar laws in other countries.
The core of NEPA is the Environmental Impact Statement (EIS), a document that has significantly affected modern American business, and even political, practices. NEPA requires that an EIS be prepared and disseminated before any "major federal action significantly affecting the quality of the human environment" may proceed. "Major federal actions" often include the granting of a permit.
Mitigation measures, if feasible, are also identified, although NEPA does not mandate that any particular form of mitigation be employed. This information is intended not only to aid the agency in its decision making, but also to put the public on notice as to the environmental consequences of various potential government responses.
NEPA has been dramatically effective as an informational device, especially to the extent that the public is included in the process and thereby given the tools necessary to shape political action. However, NEPA has been criticized in many quarters because it lacks significant enforcement capability. Nevertheless, the information-driven process it generates has proven to be an indispensable resource for not only the public, but also agencies presented with proposals that invariably have social, economic, and also environmental importance.
see also Activism; Citizen Suits; Environmental Impact Statement; Environmental Movement; Public Participation; Laws and Regulations, United States.
Weinberg, Philip, and Reilly, Kevin A. (1998). Understanding Environmental Law. New York: Matthew Bender & Co.
"Recent NEPA Cases." Available from http://www.naep.org/NEPAWG.
Kevin Anthony Reilly
"National Environmental Policy Act (NEPA)." Pollution A to Z. . Encyclopedia.com. (July 25, 2017). http://www.encyclopedia.com/environment/educational-magazines/national-environmental-policy-act-nepa
"National Environmental Policy Act (NEPA)." Pollution A to Z. . Retrieved July 25, 2017 from Encyclopedia.com: http://www.encyclopedia.com/environment/educational-magazines/national-environmental-policy-act-nepa