The National Environmental Policy Act (NEPA) is a
United States environmental law
United States environmental law concerns legal standards to protect human health and improve the natural environment of the United States. While subject to criticism at home and abroad on issues of protection, enforcement, and over-regulation, th ...
that promotes the enhancement of the environment and established the
President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970.
[United States. National Environmental Policy Act of 1969. , Approved January 1, 1970. ''et seq.''] To date, more than 100 nations around the world have enacted national environmental policies modeled after NEPA.
Prior to NEPA, Federal agencies were mission oriented. An example of mission orientation was to select highway routes as the shortest route between two points. NEPA was necessary to require Federal agencies to evaluate the environmental effects of their actions.
NEPA's most significant outcome was the requirement that all
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dir ...
Federal agencies prepare
environmental assessment
Environmental Impact assessment (EIA) is the assessment of the environmental consequences of a plan, policy, program, or actual projects prior to the decision to move forward with the proposed action. In this context, the term "environmental imp ...
s (EAs) and
environmental impact statements (EISs). These reports state the potential environmental effects of proposed Federal agency actions.
Further, U.S. Congress recognizes that ''each person'' has a responsibility to preserve and enhance the environment as trustees for succeeding generations. NEPA's procedural requirements do not apply to the
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
,
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
, or the
Federal courts
Federal court may refer to:
United States
* Federal judiciary of the United States
** United States district court, a particular federal court
Elsewhere
* Federal Court of Australia
* Federal courts of Brazil
* Federal Court (Canada)
* Federal co ...
since they are not a "Federal agency" by definition.
[ However, a Federal agency taking action under authority ordered by the President may be a final agency action subject to NEPA's procedural requirements.] A U.S. District Court describes the need for even the President to have the NEPA analysis information before making a decision as follows:
"No agency possesses discretion whether to comply with procedural requirements such as NEPA. The relevant information provided by a NEPA analysis needs to be available to the public and the people who play a role in the decision-making process. This process includes the President." "And Congress has not delegated to the President the decision as to the route of any pipeline."
History
NEPA grew out of the increased public appreciation and concern for the environment that developed during the 1960s, amid increased industrialization, urban and suburban growth, and pollution across the United States. During this time, environmental interest group efforts and the growing public awareness resulting from Rachel Carson
Rachel Louise Carson (May 27, 1907 – April 14, 1964) was an American marine biologist, writer, and conservationist whose influential book ''Silent Spring'' (1962) and other writings are credited with advancing the global environmental m ...
's 1962 book ''Silent Spring
''Silent Spring'' is an environmental science book by Rachel Carson. Published on September 27, 1962, the book documented the environmental harm caused by the indiscriminate use of pesticides. Carson accused the chemical industry of spreading d ...
'' led to support for the 1964 Wilderness Act
The Wilderness Act of 1964 () was written by Howard Zahniser of The Wilderness Society. It created the legal definition of wilderness in the United States, and protected 9.1 million acres (37,000 km²) of federal land. The result of a lon ...
and subsequent legislation (including the 1970 Clean Air Act and 1972 Clean Water Act
The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the responsibiliti ...
). The public outrage in reaction to the Santa Barbara oil spill in early 1969 occurred just as the NEPA legislation was being drafted in Congress. A fire on the Cuyahoga River
The Cuyahoga River ( , or ) is a river located in Northeast Ohio that bisects the City of Cleveland and feeds into Lake Erie.
As Cleveland emerged as a major manufacturing center, the river became heavily affected by industrial pollution, so mu ...
was publicized in a ''Time
Time is the continued sequence of existence and events that occurs in an apparently irreversible succession from the past, through the present, into the future. It is a component quantity of various measurements used to sequence events, to ...
'' magazine article shortly after the unanimous vote in the Senate. Another major driver for enacting NEPA was the 1960s highway revolts
Highway revolts (also freeway revolts, expressway revolts, or road protests) are organized protests against the planning or construction of highways, freeways, expressways, and other civil engineering projects that favor vehicles.
Many freeway re ...
, a series of protests in many American cities that occurred in response to the bulldozing of many communities and ecosystems during the construction of the Interstate Highway System
The Dwight D. Eisenhower National System of Interstate and Defense Highways, commonly known as the Interstate Highway System, is a network of controlled-access highways that forms part of the National Highway System in the United States. Th ...
.
In 2015 a United States District Court
The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
provided a documented concise background of NEPA being created to protect the environment from actions involving the Federal government as follows:
Following nearly a century of rapid economic expansion, population growth, industrialization, and urbanization, it had become clear by the late 1960s that American progress had an environmental cost. A congressional investigation into the matter yielded myriad evidence indicating a gross mismanagement of the country's environment and resources, most notably at the hands of the federal government. As a result, lawmakers and the general public alike called for an urgent and sweeping policy of environmental protection.
Congress answered these calls by enacting NEPA, which has served as "our basic national charter for protection of the environment" since 1970. With NEPA, Congress mandated that federal agencies take a "hard look" at the environmental consequences of their actions and to engage all practicable measures to prevent environmental harm when engaging in agency action.[ (citing ).] Furthermore, to remedy the widespread mistrust of the federal agencies, Congress incorporated within NEPA "action-forcing" provisions which require agencies to follow specific procedures in order to accomplish any federal project.
Since its passage, NEPA has been applied to any major project, whether on a federal, state, or local level, that involves federal funding, work performed by the federal government, or permits issued by a federal agency. Court decisions have expanded the requirement for NEPA-related environmental studies to include actions where permits issued by a federal agency are required regardless of whether federal funds are spent to implement the action, to include actions that are entirely funded and managed by private-sector entities where a federal permit is required. This legal interpretation is based on the rationale that obtaining a permit from a federal agency requires one or more federal employees (or contractors in some instances) to process and approve a permit application, inherently resulting in federal funds being expended to support the proposed action, even if no federal funds are directly allocated to finance the particular action.
Contents
The preamble to NEPA reads:
To declare 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.
NEPA contains three sections: the first section outlines national environmental policies and goals; the second establishes provisions for federal agencies to enforce such policies and goals; and the third establishes the CEQ in the Executive Office of the President
The Executive Office of the President (EOP) comprises the offices and agencies that support the work of the president at the center of the executive branch of the United States federal government. The EOP consists of several offices and agenci ...
.
The purpose of NEPA is to ensure that environmental factors are weighted equally when compared to other factors in the decision making process undertaken by federal agencies and to establish a national environmental policy. The act also promotes the CEQ to advise the President in the preparation of an annual report on the progress of federal agencies in implementing NEPA. It also established the CEQ to advise the president on environmental policy and the state of the environment.
NEPA establishes this national environmental policy by requiring federal agencies to prepare an environmental impact statement to accompany reports and recommendations for Congressional funding. This impact statement is known as an EIS. NEPA is an action-forcing piece of legislation, meaning the act itself does not carry any criminal or civil sanctions, and therefore, all enforcement of NEPA must occur through the court system. In practice, a project is required to meet NEPA guidelines when a federal agency provides any portion of financing for the project. However, review of a project by a federal employee can be viewed as a federal action, and in such a case, it requires NEPA-compliant analysis performance.
NEPA covers a vast array of federal agency actions, but the act does not apply to state action where there is a complete absence of federal influence or funding. Exemptions and exclusions are also present within NEPA's guidelines, including specific federal projects detailed in legislation and EPA
The Environmental Protection Agency (EPA) is an independent executive agency of the United States federal government tasked with environmental protection matters. President Richard Nixon proposed the establishment of EPA on July 9, 1970; it be ...
exemptions. Exemptions also apply when compliance with other environmental laws require an impact analysis similar to that mandated by NEPA. Such laws can include but are not limited to the Clean Air Act, Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act (RCRA), enacted in 1976, is the principal federal law in the United States governing the disposal of solid waste and hazardous waste.United States. Resource Conservation and Recovery Act. , , ''et seq ...
, Safe Drinking Water Act
The Safe Drinking Water Act (SDWA) is the principal federal law in the United States intended to ensure safe drinking water for the public. Pursuant to the act, the Environmental Protection Agency (EPA) is required to set standards for drinking w ...
, and the Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a United States federal law that set up the basic U.S. system of pesticide regulation to protect applicators, consumers, and the environment. It is administered and regulated by t ...
.
Process
The NEPA process is the evaluation of the relevant environmental effects of a federal project or action mandated by NEPA. This process begins when an agency develops a proposal addressing a need to take action. If it is determined that the proposed action is covered under NEPA, there are three levels of analysis that a federal agency must undertake to comply with the law. These three levels include the preparation of a Categorical Exclusion (CatEx); an environmental assessment (EA); and either a Finding of No Significant Impact (FONSI), or, alternatively, the preparation and drafting of an environmental impact statement (EIS).
Executive Order No. 11514 as amended by Executive Order No. 11991 directs the Council on Environmental Quality
The Council on Environmental Quality (CEQ) is a division of the Executive Office of the President that coordinates federal environmental efforts in the United States and works closely with agencies and other White House offices on the developmen ...
(CEQ) to issue "regulations to Federal agencies for the implementation of the procedural provisions of" NEPA [ and for Federal agencies to "comply with the regulations issued by the Council".][ Importantly the ]Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
finds "that CEQ regulations are entitled to substantial deference."
The Council on Environmental Quality
The Council on Environmental Quality (CEQ) is a division of the Executive Office of the President that coordinates federal environmental efforts in the United States and works closely with agencies and other White House offices on the developmen ...
's NEPA regulation 40 C.F.R. § 1501.4 specifies the process to determine whether to prepare an Environmental Impact Statement (EIS) as follows:
In determining whether to prepare an environmental impact statement the Federal agency shall:
(a) Determine under its procedures supplementing these regulations (described in § 1507.3) whether the proposal is one which:
:(1) Normally requires an environmental impact statement, or
:(2) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).
(b) If the proposed action is not covered by paragraph (a) of this section, prepare an environmental assessment (§ 1508.9). The agency shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by § 1508.9(a)(1).
(c) Based on the environmental assessment make its determination whether to prepare an environmental impact statement.
(d) Commence the scoping process (§ 1501.7), if the agency will prepare an environmental impact statement.
(e) Prepare a finding of no significant impact (§ 1508.13), if the agency determines on the basis of the environmental assessment not to prepare a statement.
:(1) The agency shall make the finding of no significant impact available to the affected public as specified in § 1506.6.
:(2) In certain limited circumstances, which the agency may cover in its procedures under § 1507.3, the agency shall make the finding of no significant impact available for public review (including State and areawide clearinghouses) for 30 days before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin. The circumstances are:
::(i) The proposed action is, or is closely similar to, one which normally requires the preparation of an environmental impact statement under the procedures adopted by the agency pursuant to § 1507.3, or
::(ii) The nature of the proposed action is one without precedent.
In addition to complying with the Council on Environmental Quality
The Council on Environmental Quality (CEQ) is a division of the Executive Office of the President that coordinates federal environmental efforts in the United States and works closely with agencies and other White House offices on the developmen ...
's NEPA regulations in 40 C.F.R. § 1500 through § 1508, each Federal agency is required by 40 C.F.R. § 1507.3(a) to adopt supplemental procedures for their agency's implementation of NEPA. For example, the Federal Highway Administration
The Federal Highway Administration (FHWA) is a division of the United States Department of Transportation that specializes in highway transportation. The agency's major activities are grouped into two programs, the Federal-aid Highway Program a ...
's supplemental NEPA procedures are in 23 C.F.R. §771.101 through § 771.131. According to 23 C.F.R. § 771.115(a) Class I actions such as a new controlled access freeway or a highway project of four or more lanes on a new location significantly affect the environment and therefore require an Environmental Impact Statement. According to 23 C.F.R. § 771.115(b) and § 771.117(c) Class II actions such as construction of bicycle and pedestrian lanes, planning, noise barriers, and landscaping normally do not individually or cumulatively have a significant environmental effect and therefore may be categorically exempt unless there are unusual circumstances as provided in 23 C.F.R. § 771.117(b). According to 23 C.F.R. § 771.117(c) all other actions are Class III actions requiring the preparation of an Environmental Assessment to determine the appropriate environmental document required.
Preparation of a Categorical Exclusion
A Categorical Exclusion (CatEx) is a list of actions an agency has determined do not individually or cumulatively significantly affect the quality of the human environment (40 C.F.R. §1508.4). If a proposed action is included in an agency's CatEx, the agency must make sure that no extraordinary circumstances might cause the proposed action to affect the environment. Extraordinary circumstances include effects on endangered species, protected cultural sites, and wetlands.[National Environmental Policy Act Review Process]
. U.S. Environmental Protection Agency. epa.gov. Retrieved 2017-06-06.[CEQ (2007), ''A Citizen's Guide to the NEPA'', pp. 10-11.] If the proposed action is not included in the description provided in the CatEx, an EA must be prepared. Actions similar to the proposed one may have been found to be environmentally neutral in previous EAs and their implementation, and so an agency may amend their implementing regulations to include the action as a CatEx. In this case, the drafted agency procedures are published in the ''Federal Register
The ''Federal Register'' (FR or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every weekday, except on feder ...
''and a public comment period is required. An agency cannot rely on a CatEx prepared by a different agency to support a decision not to prepare an EA or EIS for a planned action; however, it may draw from another agency's experience with a comparable CatEx in seeking to substantiate a CatEx of its own.
The Council on Environmental Quality (CEQ) created Categorical Exclusions to reduce paperwork (40 CFR § 1500.4(p)) and reduce delay (40 CFR § 1500.5(k)) so agencies can better concentrate on actions that do have significant effects on the human environment. In 2003 the National Environmental Policy Task Force found agencies "indicated some confusion about the level of analysis and documentation required to use an approved categorical exclusion". In 2010 CEQ issued guidance on the existing regulations for Categorical Exclusions consistent with NEPA and past CEQ guidance. This CEQ 2010 guidance acknowledges, "Since Federal agencies began using categorical exclusions in the late 1970s, the number and scope of categorically excluded activities have expanded significantly. Today, categorical exclusions are the most frequently employed method of complying with NEPA, underscoring the need for this guidance on the promulgation and use of categorical exclusions." This CEQ 2010 guidance goes on to caution, "If used inappropriately, categorical exclusions can thwart NEPA's environmental stewardship goals, by compromising the quality and transparency of agency environmental review and decisionmaking, as well as compromising the opportunity for meaningful public participation and review." Indeed, the expanded use of Categorical Exclusions undermines NEPA by reducing environmental analysis and public comment, thereby increasing NEPA litigation. The CEQ 2010 guidance emphasizes that Categorical Exclusions must capture the entire proposed action and not be used for a segment or an interdependent part of a larger proposed action. Examples of Exceptional Circumstances that prevent use of Categorical Exclusions include where there are "potential effects on protected species or habitat, or on historic properties listed or eligible for listing in the National Register of Historic Places." The CEQ specifically cites the 2010 Deepwater Horizon oil spill as an example why agencies need to periodically review their Categorical Exclusions "in light of evolving or changing conditions that might present new or different environmental impacts or risks."
Streamlining the NEPA process with categorical exclusions have been criticized, for example allowing BP's exploration plan that resulted in the Deepwater Horizon oil spill
The ''Deepwater Horizon'' oil spill (also referred to as the "BP oil spill") was an industrial disaster that began on 20 April 2010 off of the coast of the United States in the Gulf of Mexico on the BP-operated Macondo Prospect, considered ...
to use a categorical exclusion instead of requiring an Environmental Impact Statement.
Preparation of an Environmental Assessment and a Finding of No Significant Impact
EAs are concise public documents that include the need for a proposal, a list of alternatives, and a list of agencies and persons consulted in the proposal's drafting. The purpose of an EA is to determine the significance of the proposal's environmental outcomes and to look at alternatives of achieving the agency's objectives. An EA is supposed to provide sufficient evidence and analysis for determining whether to prepare an EIS, aid an agency's compliance with NEPA when no EIS is necessary, and it facilitates preparing an EIS when one is necessary.
Most agency procedures do not require public involvement prior to finalizing an EA document; however, agencies advise that a public comment period is considered at the draft EA stage. EAs need to be of sufficient length to ensure that the underlying decision to prepare an EIS is legitimate, but they should not attempt to substitute an EIS.
However, the Council on Environmental Quality regulation 40 C.F.R. § 1500.1(b) states: "NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." Likewise, 40 C.F.R. § 1500.2 states: "Federal agencies shall to the fullest extent possible: ... (d) Encourage and facilitate public involvement in decisions which affect the quality of the human environment." A U.S. District Court describes the essential requirement for public input on a draft EA as follows:
The Ninth Circuit has read these regulations to mean that "the public must be given an opportunity to comment on draft EAs and EISs." ''Anderson v. Evans'', 371 F.3d 475, 487 (9th Cir.2004). Because the regulations "must mean something," the Circuit has held that an agency's failure to obtain any public input on a draft EA "violates these regulations." ''Citizens for Better Forestry v. U.S. Dept. of Agriculture'', 341 F.3d 961, 970 (9th Cir.2003).
If no substantial effects on the environment are found after investigation and the drafting of an EA, the agency must produce a Finding of No Significant Impact (FONSI). This document explains why an action will not have a significant effect on the human environment and includes the EA or a summary of the EA that supports the FONSI determination.
Preparation of an Environmental Impact Statement
If it is determined that a proposed federal action does not fall within a designated CatEx or does not qualify for a FONSI, then the responsible agency must prepare an EIS. The purpose of an EIS is to help public officials make informed decisions based on the relevant environmental consequences and the alternatives available. The drafting of an EIS includes public party, outside party, and other federal agency input concerning its preparation. These groups subsequently comment on the draft EIS.
An EIS is required to describe the environmental impacts of the proposed action, any adverse environmental impacts that cannot be avoided should the proposal be implemented, the reasonable alternatives to the proposed action, the relationship between local short-term uses of man's environment along with the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that would be involved in the proposed action.
An agency may undertake the drafting of an EIS without the initial drafting of the EA. This may happen if the agency believes that the action will have a significant impact on the human or natural environment or if the action is considered an environmentally controversial issue.
The responsible decision-maker is required to review the final EIS before reaching a final decision regarding the course of action to be taken. The decision-maker must weigh the potential environmental impacts along with other pertinent considerations in reaching the final decision. A record of decision (ROD) is issued which records the agency's final decision.
Mootness doctrine used to evade NEPA requirements
The Administrative Procedure Act at 5 U.S.C. § 702 provides the right for a person injured by a NEPA issue to carry out a NEPA case in court as:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
By 5 U.S.C. § 706 the U.S. Congress provides for courts to make equitable remedies such as an injunction to compel agency action withheld or to set aside agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. However, a court case becomes moot
Moot may refer to:
* Mootness, in American law: a point where further proceedings have lost practical significance; whereas in British law: the issue remains debatable
* Moot court, an activity in many law schools where participants take part in s ...
when no practical ("live") issues remain as stated i
''Powell v. McCormack''
395 U. S. 486 (1969) pages 496 – 497:
Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory 497*497 Judgments 35-37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U. S. 75, 86-94 (1947); 6A J. Moore, Federal Practice ¶ 57.13 (2d ed. 1966).
In early NEPA cases (for exampl
''Arlington Coalition on Transportation v. Volpe''
458 F.2d 1323 (4th Cir. 1972) page 1331) courts considered projects were beyond the reach of the courts (moot) if that project had progressed to where the costs of altering the project would outweigh benefits. Nevertheless, by 1981 the Ninth Circuit Court of Appeals recognized some projects might proceed with construction in an attempt to evade the requirements of NEPA. Therefore, the court cautioned that even completed projects could be ordered to be removed as stated i
''Columbia Basin Land Protection Assoc. v. Schlesinger''
643 F.2d 585 (9th Cir.1981) page 591 note 1:
The building of the towers has not made the case hypothetical or abstract — the towers still cross the fields of the Landowners, continually obstructing their irrigation systems — and this Court has the power to decide if they may stay or if they may have to be removed. * * *
If the fact that the towers are built and operating were enough to make the case nonjusticiable, as the dissent states, then the BPA (and all similar entities) could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine. Such a result is not acceptable.
Thus, courts have the equitable power to prevent those who use bad faith
Bad faith (Latin: ''mala fides'') is a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings while acting as if influenced by another."of two hearts ... a sustained form of deception whic ...
construction to evade U.S. Congress policies such as NEPA. Despite a court recognizing the use of this mootness tactic, a court still might not order removal of construction and remediation of the environment unless the NEPA complaint seeks removal and remediation in the request for relief as a "live" issue, see dissenting opinion i
''West v. Secretary of Dept. of Transp''
, 206 F.3d 920 (9th Cir. 2000) page 931:
He did not seek remediation; he wanted the interchange stopped. It was built. Therefore, there is no justiciable controversy pertaining to Phase I.
If stopping construction is the only request for relief in a NEPA complaint then logically construction cannot be stopped after completion.
The 1st Circuit Court of Appeals in stopping construction of a seaport on Sears Island, Maine pointed out that harm in NEPA cases is harm to the environment as stated i
''Sierra Club v. Marsh''
872 F.2d 497 (1st Cir. 1989) at page 500:
Thus, when a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered. * * * the harm at stake is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment.
This court i
''Sierra Club v. Marsh''
on page 504 also found since there is an instinct not to tear down projects, it is appropriate to issue preliminary injunctions early in NEPA cases:
The way that harm arises may well have to do with the psychology of decisionmakers, and perhaps a more deeply rooted human psychological instinct not to tear down projects once they are built. But the risk implied by a violation of NEPA is that real environmental harm will occur through inadequate foresight and deliberation. The difficulty of stopping a bureaucratic steam roller, once started, still seems to us, after reading Village of Gambell, a perfectly proper factor for a district court to take into account in assessing that risk, on a motion for a preliminary injunction.
To have Article III standing to maintain a federal court case at least one individual plaintiff must have an injury caused by the defendant and that injury is likely to be remedied by a favorable decision as stated i
''Lujan v. Defenders of Wildlife''
504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) on pages 560-561:
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"—an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); and (b) "actual or imminent, not `conjectural' or `hypothetical,' " Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly ... trace bleto the challenged action of the defendant, and not ... th result fthe independent action of some third party not before the court." Simon v. Eastern Ky. Welfare 561*561 Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43.
To have a "live" issue after completion of construction of a project, at least one person would need to show they will personally suffer harm from existence of the completed project and that the harm can be remedied by removal of the project as i
''Columbia Basin Land Protection Assoc. v. Schlesinger''
Individual injuries in NEPA cases may likely involve growth-inducing impacts such as air, noise, and water pollution, safety considerations, secondary impacts, and cumulative impacts; for example se
''Coalition for Canyon Preservation v. Bowers''
632 F.2d 774 (9th Cir. 1980). Proving individual injury prevents disqualification by an objection of "generalized grievance" as stated i
''Juliana v. US''
217 F. Supp. 3d 1224 (D. Or. 2016):
Standing alone, "the fact that a harm is widely shared does not necessarily render it a generalized grievance." Jewel, 673 F.3d at 909; see also Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (" does not matter how many persons have been injured by the challenged action" so long as "the party bringing suit shows that the action injures him in a concrete and personal way." (quotation marks omitted and alterations normalized)); Akins, 524 U.S. at 24 (" injury . ... widely shared ... does not, by itself, automatically disqualify an interest for Article III purposes.
In determining whether a Federal court has the authority to decide a case (jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
), Federal courts only consider the parts of a complaint supporting the federal issue cited. This is referred to as the "well-pleaded" complaint rule. Parts of a complaint requesting removal of anticipated construction can be ignored by Federal courts since construction was not an actual controversy
The Supreme Court of the United States has interpreted the Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) as embodying two distinct limitations on exercise of judicial review: ...
at the time the complaint was filed. Therefore, if project construction starts after a NEPA complaint is filed, the NEPA complaint will need to be amended or a new complaint filed to include the actual construction. Otherwise after construction is completed, a Federal court may find it no longer has authority (jurisdiction) to decide the case. The case would therefore be moot.
Courts balance the harm an injunction might cause to the defendant against the likelihood of environmental harms occurring and the degree of injury if the environmental harms occur. The U.S. Supreme Court pointed out the irreparable nature of environmental injuries i
''Amoco Production Co. v. Gambell''
480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987) on page 545:
Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i. e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.
Courts may discount the defendant's self-inflicted harm if construction was started before resolution of the environmental issues as i
''Davis v. Mineta''
302 F.3d 1104 (10th Cir. 2002) on page 1116:
We must next balance the irreparable harms we have identified against the harm to defendants if the preliminary injunction is granted. Defendants allege that significant financial penalties will be incurred by UDOT if the Project is delayed. * * * However, it appears that many of these costs may be self-inflicted. As we have previously concluded, the state entities involved in this case have "jumped the gun" on the environmental issues by entering into contractual obligations that anticipated a pro forma result. In this sense, the state defendants are largely responsible for their own harm.
''Columbia Basin Land Protection Assoc. v. Schlesinger''
identified that allowing construction to moot NEPA cases frustrates the U.S. Congress intent. Therefore In order to prevent NEPA cases from automatically becoming moot due to construction, NEPA complaints would need to request removal of bad faith constructions.
Council on Environmental Quality
The Council on Environmental Quality
The Council on Environmental Quality (CEQ) is a division of the Executive Office of the President that coordinates federal environmental efforts in the United States and works closely with agencies and other White House offices on the developmen ...
(CEQ) was modeled on the Council of Economic Advisers
The Council of Economic Advisers (CEA) is a United States agency within the Executive Office of the President established in 1946, which advises the President of the United States on economic policy. The CEA provides much of the empirical resea ...
, an executive branch group created by the Employment Act of 1946
The Employment Act of 1946 ch. 33, section 2, 60 Stat. 23, codified as , is a United States federal law. Its main purpose was to lay the responsibility of economic stability of inflation and unemployment onto the federal government. The Act stated: ...
to advise the President on economic matters. Shortly after the CEQ was created by NEPA, President Richard Nixon
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
expanded its mandate in executive order
In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of th ...
11514. He directed the CEQ to issue guidelines for the proper preparation of an EIS and to assemble and coordinate federal programs related to environmental quality. The Council was placed within the Executive Office of the President of the United States
The Executive Office of the President (EOP) comprises the offices and agencies that support the work of the president at the center of the executive branch of the United States federal government. The EOP consists of several offices and agenc ...
. It is composed of three members appointed by the President and subsequently confirmed by the Senate.
The CEQ has played a key part in the development of the EIS process. Its initial guidelines issued in 1971 required each federal department and agency to adopt its own guidelines consistent with those established by CEQ. These guidelines did not carry the status of formal agency regulations, but were often treated with similar deference in the court of law. In 1977 President Jimmy Carter
James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party, he previously served as th ...
by executive order 11991 authorized the CEQ to adopt regulations rather than simple guidelines on EIS preparation. However, the CEQ still had no authority to enforce these regulations.
The CEQ has prepared advisory documentation in the last several years explaining the general structure of NEPA and the nature of cumulative impacts, among other advisories. The CEQ also maintains a ''Citizen's Guide to NEPA'' website as part of its ongoing duties. CEQ regulations call for agencies and other federal actors to integrate NEPA requirements with other planning obligations as early as possible in the process. This is to ensure that all decisions are influenced by and reflective of environmental values. It also avoids potential delays and conflicts that could arise from imposing these requirements later in the rule-making process.Section 102(2)(C), which is NEPA's action-forcing provision, stipulates that with "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment", all federal agencies shall include "a detailed statement by the responsible official ... on the environmental impact of the proposed action". This statement must specify all the details required for the EIS.
Consequences for Violating the National Environmental Policy Act
Agencies that violate NEPA may suffer harms to their reputations that can jeopardize future funding opportunities. Because the CEQ does not have enforcement authority for their guidelines, alleged violations must generally go through the judicial system. These lawsuits can further harm the agencies by demanding money and resources from the federal government, and delay projects for years. Several large projects have been shut down or cancelled as a result of such delays, like the planned Keystone XL Pipeline
The Keystone Pipeline System is an oil pipeline system in Canada and the United States, commissioned in 2010 and owned by TC Energy and as of 31 March 2020 the Government of Alberta. It runs from the Western Canadian Sedimentary Basin in Albert ...
. The expansion was abandoned by TC Energy in 2021 after delays including the rejection of its review under NEPA, in the case Indigenous Environmental Network v. U.S. Department of State. The most common consequence imposed by courts for violations of NEPA is a mandated repeat of whichever environmental review or report was found to have been insufficient.
In the period from 2017 to 2021 lawsuits alleging violations of NEPA proliferated, mainly directed at reviews of departmental rules and permits issued by appointees of President Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of Pe ...
. Some notable cases include Dine Citizens Against Ruining Our Environment v. David Bernhardt and Wildearth Guardians v. Ryan Zinke, in which courts revoked oil and gas permits in several Western states; State of California v. U.S. Department of the Interior, which led to the reinstatement of a moratorium on DOI coal leases; and Citizens for a Health Community v. U.S. Bureau of Land Management, which halted the Master Development Plan in Colorado.
National Environmental Policy Act and environmental justice
The National Environmental Policy Act promotes environmental justice by requiring federal agencies to include minority and low-income populations in their NEPA-mandated environmental analyses. Executive Order #12898 requires federal agencies that are complying with NEPA to consider environmental effects on human health, and economic and social effects, specifically within minority and low-income populations, which are disproportionately impacted by environmental detriment. Proposed federal actions must address "significant and adverse environmental effects" on minority and low-income populations.
The Environmental Justice Interagency Working Group published the Promising Practice Report, which documents common methodologies used presented in NEPA to include environmental justice.
Recent developments
On August 15, 2017, President Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of Pe ...
issued Executive Order
In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of th ...
(E.O.
13807
"Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects." This executive order directs CEQ to use its "authority to interpret NEPA to simplify and accelerate the NEPA review process", requires agencies to "establish procedures for a regular review and update of categorical exclusions", and revokes President Obama'
Executive Order 13690
addressin
Flood Risk Management
by including science on climate change.
In July 2020, Trump moved to significantly weaken the law. CEQ published a final rule which limits the duration of EAs to 1 year and EISs to 2 years. The rule also exempts a number of projects from review entirely and prevents the consideration of cumulative environmental impacts, including those caused by climate change.
See also
* Climate justice
Climate justice is a concept that addresses the just division, fair sharing, and equitable distribution of the burdens of climate change and its mitigation and responsibilities to deal with climate change. "Justice", "fairness", and "equity" ar ...
* Environmental impact assessment
Environmental Impact assessment (EIA) is the assessment of the environmental consequences of a plan, policy, program, or actual projects prior to the decision to move forward with the proposed action. In this context, the term "environmental imp ...
* Environmental impact report
* Environmental policy of the United States
The environmental policy of the United States is a federal governmental action to regulate activities that have an environmental impact in the United States. The goal of environmental policy is to protect the environment for future generations whi ...
References
Works cited
*
External links
*
National Environmental Policy Act of 1969
PDFdetails
as amended in the GPO GPO may refer to:
Government and politics
* General Post Office, Dublin
* General Post Office, in Britain
* Social Security Government Pension Offset, a provision reducing benefits
* Government Pharmaceutical Organization, a Thai state enterpris ...
br>Statute Compilations collection
* Council on Environmental Quality
* U.S. Department of Energy
Office of NEPA Policy and Compliance
* U.S. Federal Highway Administration
NEPA Documentation
Article on NEPA
at HistoryLink
National Preservation Institute
- Full text
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