APPLYING THE NATIONAL ENVIRONMENTAL POLICY ACT'S (NEPA) FUNCTIONAL EQUIVALENCE DOCTRINE TO THE NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN (NCP)

Abstract

ABSTRACT NEPA is a policy and procedural statute that makes environmental protection a part of the mandate of every federal agency and department. NEPA was enacted to establish a framework for public review of the environmental impacts of actions carried out by the federal government. NEPA anticipates that most federal actions are planned in detail and are implemented over the course of months or years. This planning and implementation cycle, allows detailed analysis of specific project impacts. Environmental response actions taken by the United States Environmental Protection Agency (EPA) or the United States Coast Guard (CG) under the regulatory authorities established by the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) are also considered specific federal actions. However, the nature of these specific actions varies greatly depending on the exact nature of each incident; therefore traditional NEPA planning is neither possible nor appropriate. The NCP establishes a mechanism of continuous environmental assessment and review through the network of Regional Response Teams (RRT), local emergency area planning committees, Area Contingency Planning (ACP) Committees, and the availability of local area contingency plans to the public on a contingency basis for review or comment. Federal courts have allowed functional equivalence doctrine to apply exclusively to EPA because of their adherence to “substantive and procedural standards ensuring full and adequate consideration of environmental issues.” These decisions have held up the interpretation that NEPA compliance is unnecessary where the agency is independently required to consider environmental issues. The EPA and the CG share the responsibility of protecting public health, welfare, and environment from discharges or threats of discharges of oil and/or releases or threats of a releases of hazardous substances, pollutants and/or contaminants under the planning, preparedness, and response scheme established by the NCP and carried out by those working within the National Response System (NRS). For this reason any planning, preparedness, and response activities undertaken by EPA and CG personnel to mitigate accidental or intentional discharges of oil or releases of hazardous substances, pollutants, and/or contaminants within the purview of the NCP should be interpreted as functionally equivalent to the requirements found within NEPA.