U.S.Code: 42 U.S.C. 4321 et seq.; 40 C.F.R. 1500 et seq.
NEPA is our national charter for protecting the environment, establishes policy, provides an interdisciplinary framework for federal agencies, and contains "action-forcing" procedures to ensure that federal agency decision-makers take environmental factors into account. 42 U.S.C. 4321; 40 C.F.R. 1500.1. (Bass, p. 1).
Comments from George C. Coggins, and material found in his casebook Public Land and Resources Law (see references, below)
NEPA is the precursor and model for more specific planning systems, and the land management agencies must observe NEPA procedures while promulgating LUP's. As such it is seen as another level of bureaucratic red tape by developers -- causing increased and substantial "transaction costs" -- and yet it is seen as inadequate to protect important resources by environmentalists because it lacks substantive content.
Although it is short and imprecise, NEPA is the most important procedural public land management statutes, because its application is not limited to formal planning. Under NEPA, an EIS is required for any contemplated "major federal action significantly affecting the quality of the human environment". The terms "major", "federal action", "significantly" and "human environment" have all been litigated. NEPA forces agencies to put decisions and reasoning into writing, and through required public participation at draft and final stages, allows citizens who disagree with the conclusions to seek judicial review of the agency action. The EIS often activates the "triggers" other laws such as the Endangered Species Act.
The Supreme Court has resisted its underlying policy and implications, but Congress has resisted repealing or significantly amending it.
42 U.S.C. 4332: Section 102, the second main part, states that "to the fullest extent possible ... the policies, regulations and public laws of the U.S. shall be interpreted and administered in accordance with the policies of this Act." It also contains the "action-forcing" mechanism of the EIS requirement of agency officials which must accompany "every recommendation or report on proposals for legislation and other major federal actions significantly affecting the human evironment."
The EIS must include an evaluation of the adverse environmental impacts and a discussion of reasonable alternative means to achieve the agency's ends, including the "no-action" alternative. Possible mitigation measures that address harms caused by the proposed action must be included. This requires that agency heads consider the consequences of their actions before acting. The EIS must be made available for public comment, and be submitted to other agencies involved with the same resources -- this is the obligation to consult. See diagram from Bass, 1993, p 15.
Title II: NEPA's third main part creates the President's Council on Environmental Quality -- which issues guidelines and regulations for implementing NEPA requirements; among other things the review of EISs.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835 (1989).
FACTS: A regional forester OK'ed a special use permit which would allow the development of a
major ski resort in Okanogan National Forest despite projected detrimental effects to the mule
deer herd; the chief forester confirmed the OK; a Magistrate judge affirmed the OK; the Court of
Appeals (9th Cir) rev'd (In this case the appeals court in Cal. was pushing the boundary of NEPA
requirements to include a "worst case analysis" and "mitigation plans".); United States Supreme
Court rev'd.
Issues:
1) Whether NEPA requires mitigation plans (for known environmental harms resulting from
development), and worst case analyses (when information is unavailable or inadequate for sound
decisionmaking) as a components in EIS's; and
2) Whether the Forest Service may issue a special use permit for recreational use of national
forest land without a fully developed plan to mitigate environmental harms.
Held (re the mitgation plans): The Ninth Circuit gave inadequate deference to the agency's
interpretation of its own regulations and should have allowed the decision to stand. That lower
court erred in:
1) assuming that NEPA requires that action be taken to mitigate the adverse effects of major
federal actions, and
2) in finding that this substantive requirement of NEPA entails the furthur duty to include in every
EIS a detailed explanation of specific measures which will be employed to mitigate the adverse
effects of a proposed action.
Held (re the worst case analysis); The Ninth Circuit erred in finding such a requirement in NEPA; the CEQ implementing regulations no longer require it.
Held (generally) The Forest Service has adopted a permissible interpretation of its own regulations and is entitled to deference. (The Court takes a narrow view of NEPA requirements; deferring to the agency interpretation of its own regulations.)
Note: The Supreme Court has taken the narrow view of every NEPA question it has chosen to decide -- stressing that NEPA is merely procedural. "Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed -- rather than unwise -- agency action."
Another important case:
Kleppe v. Sierra Club, 427 U.S. 390 (1976).
Issue: Whether NEPA requires an EIS on the entire Northern Great Plains region for federal actions involving leases for coal mining on BLM lands. Is a "major federal action" contemplated? Held: No proposal contemplating regionwide action; so no EIS for the region is required under NEPA. Court read the statute literally.
Important dicta: the moment at which an agency must have an EIS ready "is the time at which it makes a recommendation or report on a proposal for federal action."
Ripeness in this context is addressed in note 15 -- "court enters the process ... when the report or recommendation on the proposal is made, and someone protests either the absence or adequacy of the final impact statement. This is the point at which an agency's action has reached sufficient maturity ..."
Dissent: after the fact remedies are inadequate -- post hoc rationalizations are invited by remands for preparation of EIS after the decision to act -- wasteful.
Note that the Supreme Court has made explicit a point implicit in Kleppe; judicial review of NEPA decisions is limited to issues of procedural compliance because the substantive choice to proceed with the contested project is vested in the agency, not the courts. Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 (1980).
Note that in spite of Kleppe, if an agency contemplates major action it must start the the EIS process in time to complete it by the time the proposal is submitted.
Source: Coggins, et al,1993, pp. 332-362.