Specific Provisions

The heart of NEPA 42 USC §4332 is based in section 102. In accordance with this section, federal agencies must comply with NEPA's procedural mandates if these agencies are conducting a federal action that significantly affects the quality of the human environment. The procedural requirements are meant to further the policies of the NEPA.

Council of Environmental Quality

The NEPA (§202, 42 USC §4342) created the Council of Environmental Quality (CEQ), composed of three members appointed by the president. The CEQ's functions include:

Assisting the president in preparing an annual environmental quality report to Congress Gathering, analyzing, and interpreting information about current and prospective trends in environmental quality

Reviewing federal programs in light of NEPA's environmental policy and making subsequent recommendations to the president Recommending other national policies to the president which improve environmental quality Conducting studies to make recommendations to the president on matters of policy and legislation (NEPA §204, 42 USC §4344).1

The CEQ issued the initial guidelines to meet the NEPA's procedural requirements. After seven years, the CEQ replaced the guidelines with official regulations pur-

1. See also, Whitney. 1991. The role of the president's Council on Environmental Quality in the 1990's and Beyond. J. Envtl. L. 6:81.

suant to Executive Order 11991. The new regulations apply to all federal agencies and seek to improve implementing the NEPA's procedural mandates (40 CFR §1500-1508).

Environmental Impact Statements

The NEPA achieves its policies and objectives by requiring federal agencies to consider the environmental effects of their activities. In accordance with NEPA section 102 (42 USC §4332[c]), every federal agency's recommendation or report on proposals for legislation and other federal actions significantly affecting the quality of the human environment must include a detailed statement by the responsible official on

1. The environmental impact of the proposed action

2. Any adverse environmental effects which cannot be avoided if the proposal is implemented

3. Alternatives to the proposed action

4. The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity

5. Any irreversible and irretrievable commitments of resources involved in the proposed action if it is imple-mented.2

This detailed statement, known as an environmental impact statement or EIS, is not intended to be a simple disclosure document. Rather, federal agencies are required to make thorough inquiries into federal projects before the projects are undertaken. The purpose of the EIS is to insure that NEPA's policies and goals are incorporated into the actions of the federal government. The EIS must include an assessment of the environmental impacts of a project and propose reasonable alternatives to minimize the adverse impacts of the project. Environmental impact statements should be clear, concise, and supported by evidence showing that the agency made the necessary analysis (40 CFR §1502.1).

Section 102 contains key statutory language which has resulted in significant judicial and administrative interpretation. These interpretations have typically served to broaden the NEPA's jurisdiction. For example, a "major federal action" is not limited to projects funded or carried out by the federal government. Instead, courts have interpreted "major federal actions" to include projects which merely require federal approval or are potentially subject to federal control.3 Courts have also addressed questions involving the scope of an EIS as well as what triggers the EIS mandate.4

2. National Environmental Policy Act. Section 102(c). U.S. Code. Vol. 42, sec. 4332(c). Emphasis added.

3. See, e.g., Minnesota Public Interest Group v. Butz, 498 F.2d 1314 (8th Cir. 1974).

4. See Battle, J.B. 1986. Environmental decisionmaking and NEPA. Cincinnati: Anderson Publishing Co.)

The CEQ regulations also serve to interpret the jurisdiction of the NEPA. For example, they propose that federal actions typically fall within one of four categories: the adoption of official policy, formal plans or programs, the approval of specific construction projects, or management activities in a defined geographic area (40 CFR §1508). Thus, the courts define the NEPA's procedural mandates, i.e., jurisdiction, and EIS scope and content, through statutory and regulatory interpretation.

Environmental Assessments

The NEPA requires an agency to prepare an environmental assessment (EA) when the need for an EIS is unclear. EAs create a reviewable record to assess if an EIS is required. Both federal agencies and courts need a reviewable environmental record to determine whether a major federal action is significantly affecting the environment.

The EA should contain evidence and analysis sufficient to determine if the agency should prepare an EIS or make a finding of no significant impact (FONSI) (40 CFR §1508.9). The EA is basically a mini-EIS. It is a brief document which includes a discussion of the need for the proposed action, alternatives to the proposed action, environmental impacts, and a list of agencies and persons consulted.

Categorical Exclusion

Federal agencies must make an initial inquiry to determine if an EIS is needed for a proposal or if the proposal falls under categorical exclusion. The NEPA provides for "a category of actions which do not individually or cumulatively have a significant effect on the human environment . . . and [for] which, therefore, neither an environmental assessment nor an environmental impact statement is required" (40 CFR §1508.4). Thus, under limited circumstances, neither an EIS nor an EA is required.

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