The National Environmental Policy Act A Useless Law?

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Craig Collins, Ph.D. © The National Environmental Policy Act A Useless Law?

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NEPA’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.

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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)

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What Does the CEQ Do? Oversees the Implementation of NEPA. Resolves EIS Disputes Between EPA & Other Federal Agencies. Advises the President on Environmental Matters.

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NEPA’s Legal Premise NEPA 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.

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NEPA REQUIREMENTS NEPA requires all federal agencies to take environmental consequences into account when they plan or fund environmentally sensitive projects & programs. Prior to NEPA, they could not do this because consideration of such effects was rarely listed in agencies enabling acts as a factor to be taken into account in agency decision-making. To accomplish this, NEPA requires that an Environmental Impact Statement (EIS) be prepared for every major legislative proposal or other federal agency action having significant impact on the quality of the human environment.

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The Environmental Impact Statement 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… 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.

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JUDICIAL 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.

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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.

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Major 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

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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.

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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: 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.

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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.