Craig Collins, Ph.D. ©

The National Environmental Policy ActA Useless Law?

The National Environmental Policy ActA Useless Law?

NEPA’s GoalsNEPA’s Goals(1) To generate & direct federal

attention to the environmental consequences of government programs.

(2) To expose federal decision-making around environmental issues to public scrutiny.

The Supreme Court insists NEPA is a purely informational & procedural act with no substantive content.

But the plain language of the law itself seems to contradict their position…"Congress...declares that it is the continuing

policy of the Federal government...to use all practicable means & measures...in a manner calculated to...create & maintain conditions under which man & nature can exist in productive harmony..." -NEPA (1970)

NEPA’s STRUCTURENEPA’s STRUCTURE

Signed into law by Nixon in 1970, NEPA created:

1) THE PRESIDENT’S COUNCIL on ENVIRONMENTAL QUALITY (CEQ)

2) THE ENVIRONMENTAL IMPACT STATEMENT (EIS) PROCESS

What Does the CEQ Do?What Does the CEQ Do?

• Oversees the Implementation of NEPA. • Resolves EIS Disputes Between

EPA & Other Federal Agencies. • Advises the President on

Environmental Matters.

NEPA’s Legal PremiseNEPA’s Legal PremiseNEPA IS NOT A REGULATORY ACT.NEPA is an informational & procedural statute.• It requires the federal government to prepare &

publish information about the environmental effects of, & the alternatives to, actions that the government may take or fund.

NEPA is premised on the assumption that providing information to the decision-makers & the public will improve the quality of final decisions.

NEPA REQUIREMENTSNEPA REQUIREMENTS

The Environmental ImpactThe Environmental ImpactStatement ProcessStatement Process

The EA (“Thresholding”)FONSI

Notice of Intent(scoping)

Draft EIS

Public Comment

Final EIS

Judicial Review

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An EIS Must Include…An EIS Must Include…1) a statement of environmental impacts

(positive & negative) of the proposed action.2) any unavoidable adverse environmental

impacts should the proposal be implemented.

3) alternatives to the proposal (including taking no action).

4) the relationship between short-term uses of the environment & the long-range impact.

5) any irreversible commitments of resources.

JUDICIAL REVIEWJUDICIAL REVIEW

The Courts may review:• The decision not to prepare an EIS,

including review of a FONSI (Finding of No Significant Impact).

• Whether the final EIS was prepared in compliance with the procedural requirements of NEPA & the APA.

The Court may Overturn an EIS if…The Court may Overturn an EIS if…

• The agency has not adequately defined the scope of the EIS.

• The EIS was not compiled in "objective good faith.” (was it just a perfunctory add-on?)

• The EIS would not permit the decision maker to fully consider & balance the environmental factors involved.

• The EIS's fact findings did not have a substantial basis in fact. (was the science good?)

• The EIS did not set forth responsible alternatives & opposing views.

Major NEPA IssuesMajor NEPA Issues

• What is a Federal Action?• Are “Inactions” covered under NEPA?• Timing: When should an EIS be

Prepared? “Ripeness”• What is a “major” “significant” action?– Segmentation vs. combined treatment• Independent utility & cumulative impact

Does NEPA Forbid Agencies From Choosing Damaging Plans?

Does NEPA Forbid Agencies From Choosing Damaging Plans?

• Absolutely NOT. NEPA is procedural, not substantive. The best environmental course of action does not have to be chosen.

• The court has said that NEPA prohibits uninformed—rather than unwise—agency decisions.

• Once they gather the necessary information & follow NEPA’s guidelines, agencies are free to choose the course of action they wish.

Is NEPA Worthless?Is NEPA Worthless?NEPA does not authorize civil penalties against agencies

for violation of its provisions. The remedy for violation of NEPA is an injunction requiring the EIS to be redone.

Those who challenge an EIS may hope for one of three outcomes:

1) the party seeking to take the action for which the EIS was required will decide to modify the project to save time and/or avoid adverse publicity.

2) the delay might make the project too costly; so it may be abandoned.

3) the delay might give the party challenging the action enough time to rally persuasive public opposition to the project by using information derived from the EIS.

NEPA & Other Laws…• The information gathered in an EIS on the

environmental impacts & consequences of a proposed government action may alert environmental groups & citizen opposition to potential violations of other, more substantive, environmental laws…like the ESA, the CWA, or the CAA.

• The information gathered in an EIS on the environmental impacts & consequences of a proposed government action may alert environmental groups & citizen opposition to potential violations of other, more substantive, environmental laws…like the ESA, the CWA, or the CAA.