National Environmental Policy Act

The National Environmental Policy Act of 1969 (Public Law 91-190) is legislation that seeks to balance man's impact on nature. The preamble reads "The purposes of this Act are: To declare a 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.".

The act has three parts: the first states the purpose and goals of the legislation, the second sets up the review process for projects with Federal involvement, and the third creates the Council on Environmental Quality (CEQ). .

Among the goals outline in the first section of the law, the fourth is "preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice." . This goal extends NEPA to historic preservation and requires Federal Agencies to include historic and cultural resources in the Environmental Assessments (EA) and Environmental Impact Statements (EIS).

Events Leading to NEPA

• 1962 release of Rachel Carson's Silent Springwhich discussed the affects of DDT on birds, animals, and potentially on humans
• 1969 Santa Barbara Oil Spill
• 1969 Burning of the heavily polluted Cuyahoga River in Ohio
• 1969 UNESCO conference on Man and the Environment in San Francisco

Review Process

To trigger the review process, the action being taken must involve Federal fund or Federal oversight in some form. Preservation case law addresses what constitutes a Federal involvement. "Major Federal action significantly affecting the quality of the human environment" (MFASAQHE)is the threshold requiring an EIS. Projects that do not meet this threshold still need to assess their impact to the environment and historic and cultural resources..

CEQ defines Major Federal Actions as follows

"(a) Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals (Secs. 1506.8, 1508.17). Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no Federal agency control over the subsequent use of such funds. Actions do not include bringing judicial or administrative civil or criminal enforcement actions.

(b) Federal actions tend to fall within one of the following categories:

• Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in or substantially alter agency programs.

• Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based.

• Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

• Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.".

There are exclusions to NEPA, however. Categorical exclusions relate to actions that clearly will not have an impact on the environment and are largely put in place to reduce the expenditure of time and the amount of paperwork required of a Federal Agency. Other exclusions related to duplication of reviews that are covered under another law. For instance, if the Clean Water Act requires a more stringent review of environmental affects of a project, an additional review for NEPA that will duplicated information is unnecessary

Environmental Assessments

EAs can be utilized to determine if an action triggers NEPA if this is not clear. The assessment is generally undertaken to determine MFASAQHE. These documents are the first study of the affect that an action will have on environmental, historic, and cultural resources.

The context of affect is considered, e.g. a National impact, or impact on a National Forest, or both. The impact to a list of considerations is then rated. The most important consideration for preservation is number 3, Unique Characters...such as proximity to historic or cultural resources, park lands, prime farmlands.. There is a "socioeconomic exclusion" which only allows the consideration of economic or social factors when these factors are intertwined with natural or physical impacts.. This does not however extend exclusions to cultural resources.

The EA will draw one of two conclusions. Either it will determine there is an MFASAQHE and an environmental impact statement will be required or it will determine that this is no impact and a Finding of No Significant Impact (FONSI) will be issued. If a FONSI is issued that is the end of review and the project will continue.

Environmental Impact Statement

The EIS is a more detail document which discusses the following elements

• Cover Sheet
• Summary
• Statement of Purpose
• Description of alternatives (including no action)
• Description of environmental impact of each alternative
• Discussion of environmental impacts-direct, indirect and cumulative
• List of preparers
• Appendices as needed

The draft document is then circulated to Agencies with jurisdiction over the area of potential affect or who have an interest in the action. The document must also be made available for public review. All of the comments gather must be addressed in the Final EIS. After considering the final EIS, a decision is made on the project. A Record of Decision (ROD) should be created for the action announcing the selected decision and a description mitigation of impact.

NEPA and Section 106 of the National Historic Preservation Act (NHPA)

NEPA is seen as an umbrella law, meaning it encompasses the requirements of several other laws, geared toward the environmental, historic, and cultural resources. It allows for the most discretion and authority and goes beyond the specifics of other laws to regulate man's impact on the environment and historic and cultural resources. Other more specific laws and executive orders do not allow this level of discretion..

NEPA and NHPA are two separate and distinct laws. Categorical exclusion under NEPA do not apply to NHPA and do not negated Section 106 Review.. Section 106 Review can, however, be coordinated with NEPA. This usually takings place during the scoping. . Scoping is a process of determine what is doing to be affected and the impact the project has on these elements.

Case law on Triggering NEPA

• Ad Hoc Committee to Save the Old Carnegie Library Building v. City of Atlanta
• Bennett v. Taylor
• Boston Waterfront Residents Association v. Romney
• City of Grapevine v. Department of Transportation
• El Rancho La Comunidad v. United States
• Fill the Pool Committee v. Village of Johnson City
• Gettysburg Battlefield Preservation Association v. Gettysburg College
• Historic Preservation Guild of Bay View v. Burnley
• Miltenberger v. Chesapeake & Ohio Railway
• National Trust for Historic Preservation v. Department of State
• People for Responsible Omaha Urban Development v. Interstate Commerce Commission
• Ringsred v. City of Duluth
• River v. Richmond Metropolitan Authority
• Sugarloaf Citizens Association v. Federal Energy Regulatory Commission
• Thompson v. Fugate
• Vieux Carré Property Owners, Residents, & Associates, Inc. v. Brown
• Village of Los Ranchos v. Barnhart

External Links

Read the Full Text of the Law at The Council for Environmental Quality's Website