3 National Environmental Policy Act
The third and final chapter in the fundamental techniques group is on the National Environmental Policy Act of 1969 (NEPA). NEPA was the first major environmental law enacted in the United States and is considered the “Magna Carta” of environmental laws (United States Department of Energy 2021). In this chapter, we will provide some background on NEPA, review the process for implementing it, explore how it has performed, and end with a case study on a standoff between groups who wanted a highway vs. groups who wanted to save wetlands in West Eugene, Oregon.
BACKGROUND ON NEPA
NEPA was designed to create a national policy which encourages productive and enjoyable harmony between humans and their environment; to promote efforts to prevent or eliminate damage to the environment and biosphere, and thus stimulate the health and welfare of humans; to enrich the understanding of ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality (CEQ) to ensure that Federal agencies meet their obligations under NEPA (Council on Environmental Quality 2007; United States Department of Energy 2021). In short, NEPA was established to make agencies think about the environmental effects that their proposed actions will have prior to making decisions (Baldwin 2012).
Congress recognized the fundamental impact of human activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances. Congress further recognized the critical importance of restoring and maintaining environmental quality for the overall welfare and development of human populations. Thus, congress declared that it is the continuing policy of the Federal Government, in cooperation with State and local governments and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which humans and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans (United States Department of Energy 2021).
Federal agencies must comply with NEPA before undertaking any federal actions that could impact the environment. NEPA applies to a very wide range of federal actions, including federal construction projects, plans to manage and develop federally owned lands, and federal approvals of non-federal activities such as grants, licenses, and permits. The Federal Government takes hundreds of actions every day that are, in some way, covered by NEPA.
Private individuals or companies become involved in the NEPA process when they need a permit issued by a Federal agency. The agency that is being asked to issue the permit must evaluate the environmental effects of the permit decision, which triggers the NEPA process. The primary responsibility for NEPA is vested in the CEQ which sits within the Executive Office of the President.
NEPA has two main purposes: 1) To inform decisions and 2) To enable citizen involvement. The point of NEPA is to identify the environmental and social costs and impacts of a project, solicit public comments, and factor this information into a decision (called a Record of Decision (ROD)). NEPA also requires a discussion of alternatives and why an alternative was dismissed, not preferred, or not feasible. Sometimes there really is no alternative. At a minimum, a discussion of the “No Action Alternative” (doing nothing and keeping the status quo) is required.
THE NEPA PROCESS
The NEPA process can best be described in general terms by Figure 3.1 and in detail in the flowchart in Figure 3.2 (New Mexico State University 2021). There are sets of processes and yes/no questions that direct users from identification of a need for action to a decision.
Requirements of NEPA are generally met through the production of an environmental document that analyzes the proposed action (National Oceanic and Atmospheric Administration Program Planning and Integration 2005; Baldwin 2012). There are three levels of NEPA analysis and documentation: Categorical Exclusions (CATEX), Environmental Assessments (EA) for smaller projects, and Environ- mental Impact Statements (EIS) for larger projects.
A CATEX is a category of actions that the agency has determined does not individually or cumulatively significantly affect the quality of the human environment. These are proposed actions or projects that are too small or insignificant to warrant the preparation of an EA or EIS. Examples include issuing administrative personnel procedures, making minor facility renovations (e.g., installing energy efficient lighting), and reconstruction of hiking trails on public lands (Baldwin 2012). Agencies develop a list of CATEXs specific to their operations when they create or revise their NEPA implementation procedures in accordance with CEQ’s NEPA regulations (Baldwin 2012).
An EA is used to determine the significance of the environmental effects of an action or project, and to look at alternative means to achieve the agency’s objectives. An EA is intended to be a concise document that 1) Briefly provides sufficient evidence and analysis for determining whether to prepare an EIS; 2) Aids an agency’s compliance with NEPA when no environmental impact statement is necessary; and 3) Facilitates preparation of an Environmental Impact Statement when one is necessary.
An EIS must be prepared by a Federal agency if it is proposing a major federal action significantly affecting the quality of the human environment. The regulatory requirements for an EIS are more detailed than the requirements for an EA or a CATEX. An EIS must include (beyond the cover sheet, summary, table of contents, list of preparers, distribution list, index, and appendices if applicable) a statement of the purpose and need, description of the proposed action and alternatives, affected environment, environmental consequences, and mitigation measures (if applicable).
Typical EISs will include sections assessing impacts for the following, although in many cases a project will not impact all of these things:
- Air quality
Figure 3.2: Detailed view of the NEPA process. Source: New Mexico State University 2021 - Climate
- Soils
- Geology
- Surface water
- Wetlands/floodplains
- Groundwater
- Biological resources
- Cultural resources
- Land use
- Aesthetics
- Solid & hazardous waste
- Safety & health
- Transportation
- Noise
- Utilities
- Community services
- Socioeconomic
- Environmental justice (EJ)
NEPA IMPLEMENTATION ISSUES
NEPA has worked well in some instances but not in others. Poorly planned projects have been justifiably killed as a result of the NEPA process, when previously unforeseen impacts, costs, and inefficiencies were brought to light during the preparation of an EIS. Also, quite commonly, the NEPA process has resulted in mitigation measures being required to offset the impacts identified as a condition of the project moving forward. This requires diligence on the side of federal regulatory agencies to ensure that these measures were actually followed. NEPA has proven effective in the aforementioned instances. Conversely, empty promises are sometimes made in a NEPA document (e.g., the contractor states that they will use top-of-the-line Best Management Practices, but fail to do so) in order to sell a project to the public, but the public doesn’t always know what will actually happen in reality. In addition, once the NEPA process has been completed, a project may change in ways that the public might not be aware of and yet the process may or may not be revisited.
The EIS process requires an analysis of alternatives. The process of reviewing alternatives should be rigorous and objective but in reality selection is often subjective and arbitrary. Alternatives often reflect narrow project objectives, agency agendas and biases, and timing too early for public input (Steinemann 2001). More environmentally sound alternatives can be overlooked or eliminated before the formal analyses in EIA. Plus, earlier decisions that guided development of the project idea may not have been subject to EIA. Consequently, inadequate alternatives can undermine the goals of EIA which is to encourage more environmentally sound and publicly acceptable actions (Steinemann 2001).
The most fundamental issue facing those trying to comply with NEPA rests is their attempt to answer the question “What is a significant effect?” The CEQ -requires consideration of (a) Context – the action must be analyzed in several contexts such as society as a whole (e.g., human, national), the affected region, the affected interests, and the locality; and (b) Intensity – the severity of impact. Haug et al. (1984) stated that an environmental issue is significant if there is a high probability that one or more impacts connected with the issue will exceed a threshold of the top priorities which are viewed as:
1) Legal threshold: limits and effects regulated by law;
2) Functional thresholds: impacts that disrupt ecosystem function in an irreversible and irretrievable way;
3) Normative thresholds: impacts on resources at a level of concern relevant to social norms.
Each federal agency has their own idea of what NEPA should dictate, and it is not always consistent from one agency to another or even within the same agency. For example, some federal agencies prepare elaborate EAs for putting solar panels on top of a building, while another agency may CATEX the new construction of an entire building altogether. Most decision-makers at federal facilities are not very educated on NEPA and thus don’t always know when to use the process or how it works.
Sometimes agencies enter the NEPA process solely for the appearance of being “green,” or simply out of fear of how they may be perceived if they don’t use it, instead of carefully considering the costs and whether NEPA is truly warranted. To spend thousands of dollars on an EA to conduct a relatively insignificant project can be considered a waste of tax-payer money if the sole reason is just to maintain appearances.
Sometimes the NEPA process appears to be simply an act of “going through the motions,” where a project has basically been pre-determined to go through, regardless of the outcome of NEPA. While many small EAs may receive zero comments from the public, some of the larger more controversial projects requiring an EIS (such as a large coal-fired power plant) may literally receive 25,000 or more comments (mostly from environmental groups like The Sierra Club) and contain a whole host of impacts (acres of lost wetland, degraded threatened or endangered habitat, traffic issues, etc.) but will still end up as a Finding of No Significant Impact (FONSI) and receive approval. In many cases, these may be projects that are crucial for national security or energy. In cases where there may be significant environmental impact, the EIS may require mitigation measures to be included in the project such as wetland restoration, new roads, or sound barriers, which is what NEPA was designed to do. At the same time, many months and funds may be spent sorting through public comments which may ultimately have little to no bearing on the project. These comments will get summarized in a report, but will otherwise be dismissed and the project will move forward regardless.
PERFORMANCE OF NEPA
How much is NEPA used? Between 1973 and 2012, EISs dropped from 2,036 per year (in 1973) to 397 (in 2012) (United States Department of Energy 2018). A total of 2,656 EISs were submitted for the whole period from 2013-2020 (United States Environmental Protection Agency 2021).
Evaluating the effectiveness of NEPA is difficult since it depends on how much of a difference it is making (Jay et al. 2007). There are many challenges that affect the judgment of NEPA’s performance. First, NEPA is not an environment management tool since it includes no environmental standards or criteria and has no measurable endpoints. Second, it is not possible to compare environmental conditions with and without a NEPA assessment. That would involve a hypothetical comparison of outcomes that is virtually impossible to measure. Third, as alluded to earlier, it is difficult to ascertain the extent to which decision-makers act in accordance with the environmental information provided. It is very challenging to evaluate whether environmental considerations have been taken into account the decision-making process. There is no requirement that decision-makers give any specific weight to the environmental information provided. Finally, it is hard to quantify the contribution to project design and the fine tuning of developments that may result from stakeholder involvement.
Thus, the possible benefits of NEPA are not easily quantified. However, NEPA can enhance environmental awareness and learning among participants, can bring about change in the values and priorities in planning decisions, and can make a difference through design modifications, institutional learning, and stakeholder involvement.
Decisions can be improved through project modifications and mitigation measures, and environmentally damaging proposals that might previously have been approved can be denied.
CASE STUDY: A HIGHWAY, A WETLAND AND A DIVIDED COMMUNITY
For twenty years officials in West Eugene, Oregon were locked in a standoff. A transportation agency wanted to build a highway with federal funds through a substantial wetland area to relieve traffic on major surface streets in and out of West Eugene. Meanwhile, a land management agency wanted to establish, expand, and protect the West Eugene Wetlands (Figure 3.3). Each objective was pursued by a different agency with different sources of funding and with non-overlapping planning processes (Environmental Law Institute 2010). NEPA provided a way to resolve this mismatch of agendas.
The NEPA process started in 1985 when the Oregon Department of Transportation (ODOT) and Federal Highway Administration published a draft Environmental Impact Statement (EIS). In 1997, a supplemental draft EIS was published, recommending construction of the West Eugene Parkway (WEP), a four-lane bypass that would cross through a significant wetland area (Environmental Law Institute 2010). Despite the passage of time and intervening recognition of the value of wetlands, the statement of purpose in the EISs was narrowly drawn and did not consider a non-wetlands-crossing alternative to improve transportation in and out of West Eugene (Environmental Law Institute 2010).
In an attempt to respond to both highway and wetlands project advocates, the local county and city governments prepared a transportation plan in 2001 that included one of the four segments of the full WEP, a portion that did not cross wetlands, as a priority transportation project (Environmental Law Institute 2010). Later that year, WEP advocates on the West Eugene City Council initiated a ballot referendum on whether the full highway with all four segments, including the portion crossing the wetlands, should be built. It passed by a vote of 51% to 49% (Environmental Law Institute 2010). This empowered the ODOT to recommend that all four segments of the WEP be built, and the proposal was approved by votes in four local jurisdictions (Environmental Law Institute 2010).
In 2004, however, several events occurred that changed the tone of this ongoing debate. That year, both the United States Army Corps of Engineers and the Bureau of Land Management indicated they had not been given adequate information during the NEPA analysis. Before they would issue permits under the Clean Water Act to fill wetlands and construct a highway across the federally-protected West Eu- gene Wetlands, both agencies determined that they needed to analyze information on potential non- wetland-crossing alternatives (Environmental Law Institute 2010). That same year, the residents of West Eugene elected a mayor who had campaigned in part on opposition to the WEP citing that alternatives had not been considered during the NEPA analysis (Environmental Law Institute 2010).
By early 2007, pro-highway business people and pro-wetlands community members began jointly discussing options for transportation in and through West Eugene. These discussions led to the formation of the professionally-facilitated West Eugene Collaborative, which included equal numbers of business, neighborhood, environmental, and government representatives (Environmental Law Institute 2010). The Collaborative’s purpose during meetings (Figure 3.4) over the next two years explicitly involved consideration of alternatives to the WEP and encouraged development of an integrated transportation and land use solution that would be broadly supported by stakeholders (Environmental Law Institute 2010). The Collaborative strived for a solution that would receive broad community support; be economically feasible; facilitate both the movement of people and commerce through the region; minimize greenhouse gas emissions; avoid wetlands loss; support sustainable business; and enhance both the community and the environment (Environmental Law Institute 2010).
Later in 2007, the Federal Highway Administration issued a “no-build” final EIS decision which disallowed the WEP from being built through the wetlands. After two years of meetings and hundreds of hours of volunteer time, in March 2009, the West Eugene Collaborative published its final report titled “A New Vision for West Eugene” which included a set of recommendations for short, medium, and long-term actions that would simultaneously address environmental, transportation, and community concerns and needs (Environmental Law Institute 2010). The final report was welcomed by the community, and the West Eugene City Council voted unanimously to convene work sessions to discuss next steps for implementing The Collaborative’s recommendations (West Eugene Collaborative 2021). One West Eugene Collaborative participant stated: “This is a vision of a place which will not only be nicer to live in, healthier, safer, and more pedestrian friendly, but a place where compact urban development can occur” (West Eugene Collaborative 2021).
NEPA enabled the community of West Eugene, Oregon to organize and collaboratively pursue NEPA’s goals: a public process with clear needs and a positive purpose; consideration of the social and environmental impacts of a range of alternatives to address the stated needs and purpose; and an informed community and decision-makers (Environmental Law Institute 2010). Further NEPA analyses may be required in the process of implementing future recommendations of the West Eugene Collaborative (Environmental Law Institute 2010).
SUMMARY
NEPA was established to encourage agencies to think about the environmental effects that their proposed actions might have prior to making final decisions. Submissions to NEPA have declined in recent decades. The possible benefits of NEPA are not easily measured. However, NEPA can act to increase environmental awareness and learning among participants, can bring about change in the values and priorities in planning decisions, and can make a difference through design modifications and stakeholder involvement. Decisions can be improved through modifications and mitigation, and environmentally damaging proposals can be denied that might previously have been approved.
REFERENCES
Baldwin, C.F., 2012. The National Environmental Policy Act (NEPA) Process with Military Projects. Duke Environmental Leadership Program, Duke University.
Bureau of Land Management, 2021. West Eugene Wetlands. Available: https://www.blm.gov/visit/ west-eugene-wetlands (September 2021).
Council on Environmental Quality, 2007. A citizen’s guide to NEPA. Council on Environmental Quality, Executive Office of the President, Washington, DC.
Environmental Law Institute, 2010. EPA Success Stories: Celebrating 40 Years of Transparency and Open Government. Washington DC.
Haug, P.T., Burwell, R.W., Stein, A. and Bandurski, B.L., 1984. Determining the significance of environmental issues under the National Environmental Policy Act. J. Environ. Manage., 18(1).
Jay, S., Jones, C., Slinn, P. and Wood, C., 2007. Environmental impact assessment: Retrospect and prospect. Environmental impact assessment review, 27(4), pp.287-300.
New Mexico State University. 2021. An Introduction to NEPA: The National Environmental Policy Act of 1969. Available: http://aces.nmsu.edu/pubs/_ritf/RITF85/welcome.html (September 2021).
National Oceanic and Atmospheric Administration Program Planning and Integration, 2005. National Environmental Policy Act handbook. National Oceanic and Atmospheric Administration, Washington, DC.
Steinemann, A., 2001. Improving alternatives for environmental impact assessment. Environmental Impact Assessment Review, 21(1), pp.3-21.
United States Department of Energy, 2018. EISS. Available: https://ceq.doe.gov/docs/get-involved/combined-filed-eiss-1970-2012.pdf (September 2021).
United States Department of Energy, 2021. Office of Environment, Health, Safety and Security. Available: https://ceq.doe.gov/ (September 2021).
United States Department of the Interior, 2021. National Environmental Policy Act. Available: https:// www.doi.gov/nepa (September 2021).
United States Environmental Protection Agency, 2021. Environmental Impact Statement (EIS) Data- base. Available: https://cdxnodengn.epa.gov/cdx-enepa-II/public/action/eis/search/ search;jsessionid=2DF1AB2A51B2182F6A0D769C6747A7DC#results (September 2021).
West Eugene Collaborative, 2021. West Eugene Collaborative (WEC).
Available: https://oregonconsensus.org/projects/west-eugene-collaborative-wec/ (September 2021).
