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1 1 (December 28, 2023)

handle is hein.crs/govenvj0001 and id is 1 raw text is: Informing s/onaI Rese r h Service e eisIative liebaL sico 1914 December 28, 2023 National Environmental Policy Act: An Overview Introduction and Background Since 1970, the National Environmental Policy Act (NEPA, 42 U.S.C. §§ 4321 et seq.) has set forth a national policy with respect to environmental quality. For decades, NEPA has required agencies to integrate environmental considerations into planning and decisionmaking. Further, NEPA's continuing policy has been that the federal government use all practicable means and measures to support humans and nature coexisting and to fulfill the social, economic, and other requirements of present and future generations. NEPA envisions a continuing responsibility for the federal government to, inter alia, treat each generation as a trustee of the environment, preserve historical and cultural heritage, and allow for pleasing surroundings and high standards of living. NEPA is often described as a procedural law that mandates environmental review of many agency actions, including by requiring that agencies consider the environmental impacts of certain federal actions. NEPA also established the Council on Environmental Quality (CEQ), which issues regulations and guidance on NEPA implementation. To implement NEPA, CEQ issues broadly applicable rules that complement agency-specific statutes and regulations. CEQ regulations require that an agency assess how the NEPA process applies to an action early in its decisionmaking process. In most cases, the NEPA analysis becomes part of the administrative record for the agency's decision or action. Agencies are also encouraged to integrate NEPA reviews with other federal reviews and permitting decisions authorized under separate authorities. While NEPA prescribes the process for environmental reviews, it does not mandate that federal agencies alter their proposals based on those reviews. Rather, NEPA focuses on ensuring that the agency has the information and analyses it needs to make better informed decisions. In the words of the Supreme Court, NEPA merely prohibits uninformed- rather than unwise-agency action. Scope of Agency Review NEPA requires agencies, prior to finalizing certain decisions, to identify and evaluate the impacts of major Federal actions significantly affecting the quality of the human environment. For this requirement to apply, the major federal actions must occur within the United States, and the decisions underlying the actions must be subject to agency discretion and a degree of control over the outcome. The range of federal agencies and actions subject to NEPA is broad and commonly includes activities such as issuing permits and funding infrastructure. Major federal actions do not include nonfederal actions with no or minimal federal funding, federally funded actions where the agency lacks oversight or control over the subsequent use of the funds, or other circumstances where the federal agency does not exercise sufficient control over a project's outcome. An agency also does not need to document relevant impacts until a decision is final. While only domestic actions are subject to the environmental review process, NEPA also requires agencies to recognize the global nature of environmental problems and maximize international cooperation to prevent environmental decline. For some decisions under other laws, agencies have developed review and disclosure processes that are functionally equivalent to the NEPA process. Courts have held that if a statute provides for such a functional equivalence, both procedurally and substantively, then an agency is exempt from producing a separate NEPA statement. Consideration of impacts One step in the NEPA process is to determine whether the proposed action is likely to have significant effects that require an environmental impact statement (EIS). The effects an agency must consider and analyze include social, ecological, and health impacts as well as environmental justice concerns. The depth of analysis and type of documentation required by NEPA depends in large part on the extent to which anticipated impacts are expected to be significant. Categorical Exclusion Many agency activities may be subject to a categorical exclusion, which refers to a type of activity undertaken by an agency that normally does not significantly affect the quality of the human environment. If the agency determines that a categorical exclusion applies, NEPA does not require an environmental assessment or EIS. Agencies maintain their own categorical exclusions and in some cases may adopt another agency's exclusion. When an agency considers applying one of these categorical exclusions to a proposal, it also decides whether site- specific extraordinary circumstances exist that could result in more significant impacts than would typically be anticipated and thus warrant further analysis and documentation. Congress can also mandate a categorical exclusion by statute and specify whether the agency should consider any extraordinary circumstances. Categorical exclusions apply to the vast majority of agency actions that require NEPA compliance.

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