See the latest EHS federal and state regulatory updates due to COVID-19

The National Environmental Policy Act (NEPA) was enacted by Congress in 1970 (42 U.S.C.A. §4321-4370d) with the main goal of incorporating a “stop and think” step into the procedural aspect of the federal project review process.  Hence, NEPA does not add any new substantive (regulatory) requirements upon any media (air, water, land use), but rather mandates federal agencies to consider the potential effects of a proposed action on the environment, before such action is authorized.  NEPA also seeks to inform the general public as well as decision makers about potential environmental impacts of a proposed action or alternatives and provides a framework for public involvement and participation in the planning process.

NEPA regulations are divided among Title I and II. While Title I provides suggestions on the implementation of NEPA, it includes no mandatory or enforceable language.  Nonetheless, Section 102(2)(C) includes narrow statutory language requiring agencies to prepare an Environmental Impact Statement (EIS) for major federal actions, and to consult with other agencies with jurisdiction or expertise on specific issues during the environmental review process.  Title II establishes the Council on Environmental Quality (CEQ), which provides general advice on environmental issues and prepares regulations for federal agencies to implement NEPA.

The environmental review process and related documentation are at the core of NEPA.  Federal agencies rely on the review process to comply with the mandate to consider the effects of a project prior to ruling on a proposed action.  The environmental review process involves many key players and steps.

NEPA Participants and the Review Process

The environmental review process is typically initiated by a lead agency - usually the one promoting or sponsoring a project.  For example, the Federal Energy Regulatory Commission (FERC) might start a NEPA review process for a proposed liquefied natural gas (LNG) terminal as part of the permitting and siting process for that project.  As stated in Section 102(2)(C) of NEPA, the lead agency is mandated to consult with other agencies which might have jurisdiction or expertise on issues being reviewed.  Under NEPA, these become “cooperating agencies.”

NEPA Environmental Review Process - Typical Lead Agencies and Types of Projects

  • Federal Energy Regulatory Commission (FERC
    •  LNG Terminals
    • Interstate pipelines
    • Electric transmission lines
  • U.S. Forest Service (USFS)
  • Bureau of Land Management (BLM)
  • Federal Highway Administration (FHWA)
    • Interstate/intrastate highways with FHWA funding
  • Federal Communications Commission (FCC)
    • Cell/TV/Radio towers
  • U.S. Fish and Wildlife Service (USFWS)
    • Rights-of-Way through wildlife refuges
  • Federal Aviation Administration (FAA)
    • Airports (new and expansions)
    • Aids to navigation (VORTACs, etc.)
  • Federal Emergency Management Agency (FEMA)
    • Hazard Mitigation Program funded projects
  • Others (HUD, USDA, BR)EQ_NEPA Chart
Typical Cooperating Agencies
  • U.S. Fish and Wildlife Service (USFWS)/National Marine Fisheries Service (NMFS)
    • Endangered/threatened species (ESA Section 7)
  • Federal Aviation Administration (FAA)
    • Obstructions to air navigation
  • Federal Emergency Management Agency (FEMA)
    • Special flood hazard areas
  • State Historic Preservation Office (SHPO)
    • NHPA Section 106
  • U.S. Army Corps of Engineers (USCoE)
    • Wetlands, waters of the US, and CWA Section 404 Permits
  • National Park Service

The lead agency will also determine the adequate level of NEPA review required for a specific project.  Under NEPA, there are three possible levels of review.  The simplest level of review is a Categorical Exclusion (CatEx).  This level is reserved for proposed actions which have been historically deemed not to cause significant impacts (actions which have been thoroughly evaluated previously and determined not to pose significant effects).

The second tier of review is the Environmental Assessment (EA). This represents a more thorough level of review than a CatEx, and may yield either a finding of no-significant impact (FONSI) or the need for an Environmental Impact Statement (EIS).

Finally, the Environmental Impact Statement (EIS) is the highest level of environmental review reserved for “major federal actions” which may have “significant effects” on the quality of the “human environment.”

Typically, large projects will trigger the preparation of an EA, at minimum.  In such case, the lead agency must assure that a FONSI provides the reasons why the proposed action will not have a significant effect on the human environment and adequate justification for not preparing an EIS.

EIS Criteria

As noted in the flowchart, the decision of whether an EIS is required relies on six specific criteria.  First, the agency must determine whether the proposal constitutes a “major” “federal” “action.”  The term “major” has been interpreted broadly and connotes more than simple project size.  Elements such as cost, amount of planning, and time needed for completion are considered.  Courts have clearly interpreted that “major” does not necessarily mean a project will also have “significant” effects (Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972)).

On the other hand, “federal” has a narrow meaning in this case consisting of actions directly undertaken by federal agencies, actions with a federal nexus (federal agency permits), and actions tied to federal funding.  Courts have also provided interpretation for this term, and have extended its meaning to non-federal actions in cases when a federal agency has authority over the outcome of the project (Sugarloaf Citizens Assoc. v. FERC, 959 F.2d 508 (4th Cir. 1992)).

Finally, an “action” may encompass the adoption of policies, formal plans, adoption of statutory programs, and approval of specific projects (actions approved by permit, which are ministerial and non-discretionary actions).

Determining Significant Effects

Once a project has been identified as a major federal action, attention shifts to determining whether an action represents “significant effects” to the “human environment.” The two terms are evaluated in the context of society as a whole, affected interests, intensity, effects, and regional and local impacts. The evaluation includes aspects such as socioeconomic benefits, direct and indirect environmental impacts at the local and regional level, as well as impacts on existing infrastructure at the local and regional level.

Once it has been determined that an EIS is required, the lead agency files a notice of intent (NOI) and conducts scoping meetings with interested stakeholders.  The initial steps in the process vary slightly depending on the procedures and guidelines established by the lead agency but in general, include the following:

  • Preparation of scoping document (FERC Resource Reports, etc.)
  • Assessment of alternatives to the proposed project
  • Preparation of Draft EIS (D-EIS)
  • Distribution of D-EIS to cooperating agencies, and incorporation of comments into D-EIS
  • Public comment period
  • Consideration of public comments and incorporation into Final EIS (F-EIS)
  • Publication of EIS  in Federal Register
  • Issuance of Record of Decision (ROD) EQ_NEPA pie chart

The ROD must include all relevant information and statements of fact used by the agency to reach the conclusion and meet any adequacy requirements under NEPA.  Most importantly, the ROD must include the reasons why any of the proposed and evaluated alternatives to the project were rejected.  The lead agency decision is afforded deference by the courts, as long as the methodology used to arrive at the conclusion is reasonable.

NEPA actions and agency decisions are subject to judicial review under the “arbitrary and capricious” standard.  Typical issues which trigger judicial review include questions on the need of an EIS (whether an EIS was needed and not prepared), adequacy (does the EIS meet the substantive requirements), and procedural (did the lead agency follow all the steps required by the regulation).  In the end, the EIS will be evaluated on its adequacy to meet the NEPA mandate to consider the effects of an action.

General EIS Content

Although the precise format of the EIS varies depending on the agency leading the review process, it should comply with the content requirements established under 40 CFR 1502.

One of the most important aspects of the EIS preparation process is to properly define what constitutes the proposed action or project.  This is a critical step in the overall planning process which should be carefully considered since it may affect the review timeline.  Inadequate or conceptual project definitions may require updates to EIS documents which could delay the process significantly.  The EIS must also adequately establish the need for the proposed project, as well as reasonably foreseeable impacts in the following areas, among others:

  • Air quality – the evaluation is geared at determining air quality impacts arising from the proposed action including potential violation of a NAAQS, potential impact on nonattainment areas, and impacts on climate due to emissions of greenhouse gases, among others
  • Noise – includes an assessment of potential impacts related to noise during construction activities as well as noise associated with typical operating conditions
  • Water and wastewater (discharges as well as loads on infrastructure) – the evaluation covers wastewater discharges, potential impacts on impaired waterways, drinking and process water requirements, potential impacts on groundwater, etc.
  • Storm water (including potential hydrologic effects) – includes an assessment of impacts to receiving waters from potential sources of storm water pollution, both during the construction as well as the operational phases of the proposed project
  • Soils and geology – the evaluation includes a discussion of potential impacts on soils, loss of agricultural value of soils, general geological setting, ground water occurrence, and geologic faults
  • Biological systems – typically addressed through the preparation of a biological assessment (BA), covers potential impacts upon biological systems, including endangered/threatened species, natural preserves, forests, riparian habitats, wetlands, critical habitats, etc.
  • Historic/cultural resources – the assessment is geared towards identifying potential impacts upon resources of archeological, cultural, or historic value
  • Socioeconomic – the evaluation will include sufficient information to satisfy the requirements of EPA’s environmental justice guidance, and will include a discussion of potential socioeconomic impacts (positive or negative) of the proposed project

The EIS must also include a comprehensive evaluation of alternatives to the proposed action, including the no-action alternative, as well as a discussion of direct and indirect impacts.  Finally, cumulative impacts must be addressed for all media and aspects outlined above.  Cumulative impacts represent the total of all direct and indirect impacts of the proposed project and all reasonably foreseeable future impacts within the area of analysis.

Final Thoughts

Successful navigation of the NEPA process requires careful planning during the conceptual stages of a project with the goal of achieving a proper definition and layout of a proposed action.  Proper identification of key stakeholders, as well as potential impacts early in the process can result in significant savings on the review timeline.  Also, timely engagement and onboarding of cooperating agencies and key stakeholders may provide a more robust evaluation that can withstand potential judicial scrutiny.