National Environmental Policy Act Compliance Research Articles

Environmental impact assessments not the main barrier to timely forest management in the United States

Environmental impact assessment (EIA) processes are commonly used by government agencies to evaluate the merits and environmental risks of natural resource management decisions. Citing EIA as red tape, decision makers from across the political spectrum are increasingly circumventing EIA to expedite implementation of necessary actions for climate resilience and clean energy. Few studies have quantified the extent that EIA is the main barrier to efficient implementation. We combine administrative data from the US Forest Service with survival analysis to show that, for most actions, the Forest Service takes as long or longer to award first contracts and roll out initial activities than to comply with the 1970 National Environmental Policy Act (NEPA), and that NEPA compliance accounts for approximately one-fifth of planned implementation time.

Debunking the Myths Behind the NEPA Review Process

The National Environmental Policy Act (NEPA) requires major federal actions that significantly affect the quality of the human environment to undergo an environmental review prior to federal authorization or funding. The decision to license or permit a project on federal lands is generally considered a major federal action subject to NEPA review. NEPA’s critics allege that the review process delays federal decision making, unduly impedes development, and results in excessive litigation. These claims, however, are not supported by empirical evidence. Using quantitative analyses we challenge four pervasive myths about NEPA compliance and litigation, and we argue that efforts to “streamline” NEPA are likely to have significant unintended consequences.

Dealing With Climate Change Under the National Environmental Policy Act

The National Environmental Policy Act (NEPA) was an important environmental law for several decades before climate change became an issue of concern. Beginning in the 1990s efforts began to include in NEPA’s environmental assessments and environmental impact statements both the impact of federal government actions on climate change and the impact of climate change on proposed federal actions. These efforts were encouraged by the Council on Environmental Quality. However, implementation at the agency level has been uneven. Some Federal agencies have resisted making serious efforts to incorporate climate change impacts into their decision-making process. Moreover, the courts have not been consistent in their reviews of agency compliance with NEPA, and the judiciary often give substantial deference to an agency’s minimal NEPA compliance. Since 2017, determining NEPA’s requirements for climate change analysis has become more challenging because the Trump Administration is changing federal environmental policies and regulations in order to encourage fossil fuel energy development and use, which will increase the emissions of greenhouse gases.

Environmental Review of Western Water Project Operations: Where NEPA Has Not Applied, Will It Now Protect Farmers from Fish

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states; storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, Bureau has largely been excused from complying with environmental review requirements of National Environmental Policy Act (NEPA). This article analyzes relevant NEPA cases involving these Bureau projects, and argues that Bureau should conduct NEPA reviews for long-term project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger's recent decisions applying NEPA to Bureau's efforts to comply with Endangered Species Act (ESA) in operating Central Valley Project. The article concludes that Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species. I. INTRODUCTION II. LEGAL BASICS A. Reclamation Project Operations B. NEPA Requirements for Environmental Impact Review III. NEPA AND THE BUREAU'S PROJECT OPERATIONS A. The Bureau's NEPA Rules, Procedures, and Policy B. USBR's Practice in Implementing NEPA C. Cases Addressing NEPA Requirements and Reclamation Project Operations D. Are Cases Correct in Exempting Routine Project Operations from NEPA? E. If NEPA Review is Not Required for Operations, Should Bureau do it Anyway? IV. NEPA AND ESA COMPLIANCE AT BUREAU PROJECTS A. Endangered Species Act Section 7 Requirements for Federal Agency Actions B. The Bureau's Section 7 Duties C. The CVP Controversy: Judge Wanger's Decisions Regarding NEPA and ESA D. Criticism of Judge Wanger's Conclusions Regarding NEPA V. CONCLUSION I. INTRODUCTION Few federal agencies are as well known for their environmental impacts as U.S. Bureau of The Bureau spent much of 20th century building hundreds of dams across seventeen western states, (1) resulting in what Marc Reisner called the most fateful transformation that has ever been visited on any landscape, anywhere[.] (2) The construction and closing of these dams wiped out many magnificent places across western United States. (3) Opposition to proposed Bureau darns has been credited With galvanizing modern conservation movement, (4) and there is little doubt that environmental opposition helped bring an end to era of major federal dam construction. (5) Today, Bureau operates hundreds of existing dams, storing and releasing water for irrigation, hydropower, drinking water, and other human uses. (6) Operation of these dams, however, creates a variety of serious and ongoing environmental impacts throughout West. Most notably, reservoir operations change quantity, quality, and timing of downstream river flows, often damaging aquatic ecosystems and harming native species. (7) Indeed, a 1996 study of counties in western United States found that number of ESA-listed fish species in a county correlated positively with level of irrigated agriculture reliant on surface water in county. In particular, number of species depended positively on water-supply levels of Bureau of Reclamation. (8) Where project operations have harmed species protected by Endangered Species Act, (9) ESA has sometimes forced Bureau to modify its operations, generating major legal and political controversy. (10) Another of nation's monumental environmental laws, however, has had virtually no impact on Bureau's project operations. The National Environmental Policy Act (11) (NEPA) recently marked its 40th anniversary, and President Obama issued a proclamation calling it the cornerstone of our nation's modern environmental protections. …

From the office to the field: Areas of tension and consensus in the implementation of the National Environmental Policy Act within the US Forest Service

We conducted an online survey ( n = 3321) followed by five focus groups with Forest Service employees involved in compliance with the National Environmental Policy Act (NEPA) to explore agency views of how NEPA should be implemented within the agency. We filter these perceptions through the lenses of different functional groups within the agency, each with its own role in agency compliance with NEPA and its own suite of perceived accountabilities. In doing so, we uncover areas of consensus regarding valued practices as well as tensions between employees with different roles in NEPA compliance. General consensus exists regarding the importance of the effective functioning of interdisciplinary teams, but opinions about what constitutes an effective team vary. Findings suggest that NEPA serves as a playing field for competing accountabilities felt by line officers, disciplinary specialists, and advisory personnel within the agency, as each attempts to exert influence over NEPA processes and their outcomes.

Chertoff's monster

What do gila monsters and Secretary of Homeland Security Michael Chertoff have in common? Other than persistence, very little. US immigration policy – once described as “squeezing a balloon” (ie shifting emphasis from one sector to another) – and environmental policy seem to have become disparate as well. The fence now under construction along the US–Mexico border is the most recent intra-governmental standoff between the National Environmental Policy Act (NEPA) and another governmental function, immigration control by the Department of Homeland Security (DHS). NEPA has, as its basis, the mission “to declare a national policy which will encourage…harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere...[and] to enrich the understanding of the ecological systems and natural resources important to the Nation”. Immigration policy in the Sonoran Desert is designed to stop criminal activity, and NEPA's harmonious nature is being tested again. In what most see as an aggressive action to comply with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 and the Secure Fence Act of 2006, installation of fencing, barriers, roads, lighting, cameras, and sensors was mandated. The DHS announced in early April decisive moves to finish 370 of almost 700 miles of barriers on the approximately 1969 miles of the border with Mexico by the end of 2008, and that it would exercise waivers built into the fence statute to suspend federal and state environmental laws to meet that goal. Chertoff argued that Congressional authority under IIRIRA justified the waiver: “Congress and the American public have been adamant that they want and expect border security”, and, in addition to security risks and the flow of illegal immigrants, “Illegal border traffic has also caused severe and profound impacts to the environment”. Passed in 1969, NEPA was designed to ensure that federal projects would be reviewed to assess their potential environmental harm. The law requires federal agencies to integrate environmental awareness and values into decision-making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet this requirement, federal agencies are required to prepare a detailed EIS for each such project. The US Environmental Protection Agency (EPA) reviews and comments on EISs prepared by other federal agencies. Congress can, in unusual and emergency situations, waive NEPA compliance to counterbalance unnecessary delays in an essential project, but such waivers must be fully vetted. Earlier this year, a federal court struck down a waiver issued by the White House that would have exempted the US Navy from complying with the Coastal Zone Management Act during sonar training exercises off of southern California. With the waivers in place, one might ask, what does the fence have to do with the environment? The answer is, plenty. At issue now is that the fence, designed to keep out criminals, illegal immigrants, terrorists, and so forth, also disturbs the natural ecological immigration of fauna. Some commentators believe that the fence is a waste of money, and will do nothing to stem the flow of cross-border migrants. On the other hand, the border spans the Sonoran Desert, wilderness areas such as Cabeza Prieta National Wildlife Refuge, the Organ Pipe Cactus National Monument, and the San Pedro Riparian National Conservation Area, and the effects on those areas are already clearly visible. Ecosystems, of course, know no borders, and a number of endangered and threatened species live in this environment shared by Mexico and the US, including jaguars, ocelots, jaguarundis, gila monsters, and Sonoran pronghorns, among others; one ecologist has described the fence as “a Great Wall of Arizona”. The fence, argue environmental groups, and even some Members of Congress, will cut off migration routes for many of these species and will bisect a series of dry washes. During monsoon season, water will pool behind the fence foundations, causing erosion that could eventually alter existing willow forests and other habitat. So, given the outcry, we may soon see who has the most tenacious bite – Chertoff, or our old friend, the gila monster.

Regulatory considerations for marker vaccines and diagnostic tests in the U.S.

Marker vaccines and diagnostic tests can prove to be invaluable in disease eradication and control programs, as was found in the pseudorabies (Aujeszky's Disease) virus eradication program in the U.S. During that campaign, numerous gene-deleted vaccines and companion diagnostic test kits were used to differentiate infected animals from vaccinated animals, in a strategy that ultimately led to eradication of the disease in commercial swine herds. The United States Department of Agriculture played a key role in delivery of that success by developing biologics policy, evaluating each product, and ensuring that the conditions of licensure were met. What was most critical in the overall eradication effort, however, was the detailed and dedicated interaction among key players: the biologics regulators, manufacturers, Federal, State, and local regulatory partners, veterinary researchers, industry associations, and animal owners. A good disease control program has to include all of these. The regulatory requirements for licensure of marker vaccines and diagnostic test kits are not different from that for other products. There are several mechanisms for vaccine approval, some more rapid than others, but only a few that could apply to these products. Generally, the platforms that might support marker vaccines and companion diagnostic kits are those based on genetic engineering or protein manipulation. If the product is derived from the application of biotechnology, then additional regulatory considerations are applicable. Most important of these are the considerations found in the National Environmental Policy Act (NEPA), wherein deliberate release of any organism containing recombinant DNA into the environment is subject to review and approval by appropriate federal agencies. Environmental release and NEPA compliance are discussed.

Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance

The National Environmental Policy Act (NEPA) seeks to improve environmental outcomes by forcing agencies to identify and confront the environmental consequences of their actions, and by opening governmental decisions to public scrutiny. Although NEPA brought important changes to the way government does business, agencies have subsequently adopted a strategy of avoiding NEPA's burdensome information production requirements whenever possible. Because NEPA demands comprehensive, synoptic rationality in the form of an exhaustive, one-time-only set of ex ante predictions of expected environmental impacts (the environmental impact statement, or EIS), it places extreme demands on agency resources, generates encyclopedic compilations more notable for their bulk than for their quality, and typically produces a work product too late to influence the agency's course of action. Agencies therefore have strong incentives to avoid producing environmental impact statements by making Findings of No Significant Impact (FONSIs), often accompanied by mitigation measures designed to reduce environmental impacts below reportable thresholds (mitigated FONSIs). FONSIs and mitigated FONSIs now represent the lion's share of the NEPA compliance effort, with EISs confined to a small and declining share of federal agency actions - the exception and not the norm in NEPA practice. Some critics see this avoidance strategy as violating NEPA's spirit if not its letter. In contrast, this Article argues that mitigated FONSIs may produce environmentally beneficial outcomes - albeit through an unintended and largely invisible backdoor mechanism that indirectly accomplishes NEPA's objective of forcing agency managers to consider environmental impacts at the early stages of project design. In this de facto scheme, the EIS functions not as the principal generator of information, but as a penalty default requirement - the costly price an agency must pay if it fails to keep expected environmental impacts below the threshold requiring EIS production. Yet because NEPA does not require follow-up monitoring or verification of predicted impacts, we can have little assurance that the predictions upon which EISs, FONSIs or mitigated FONSIs are predicated are accurate. The Article proposes to retool NEPA to require follow-up monitoring, adaptive mitigation, and an environmental management systems-oriented approach. By shifting the focus of information production from the uncertain and speculative realm of comprehensive ex ante prediction to the pragmatic empiricism of monitoring, measurement, and verification, these tools would enable systematic error detection and correction, early identification of unforeseen circumstances, and better-informed environmental management over the life of the program or project. These proposals are consistent with broader trends in private and public sector environmental management, where systematic monitoring, continuous information feedback, and adaptive decision-making are emerging as the core tools in integrated, dynamic, and responsive environmental management systems.

Commentary: NEPA Reform: Effects on Citizen Participation in Environmental Decision Making

The National Environmental Policy Act (NEPA) has been hailed as one of the most successful environmental statutes ever written, and has been used as a model for environmental stewardship throughout the world. One of the primary objectives of this act is to provide citizens with a voice in governmental decisions. However, recent efforts to make the NEPA process more efficient, less costly, and less time-consuming threaten to undermine achievements in public participation and participatory policy making gained during the last 30 years. This article examines public participation under NEPA and demonstrates that the recent rise in the use of the Environmental Assessment (EA) as the primary document for NEPA compliance, and the corresponding decrease in the use of the Environmental Impact Statement (EIS), is due to efforts to streamline NEPA as part of the overall movement to reinvent government. The article examines recent trends in NEPA implementation and public involvement requirements for EISs and EAs, and concludes that the increased use of Environmental Assessments significantly limits the public's ability to respond to environmental impacts caused by federal actions, thereby damaging one of the most effective vehicles for citizen participation in government. Finally recommendations are provided to increase opportunities for public involvement in the EA process without sacrificing improvements in efficiency.

From proposal to decision: Suggestions for tightening up the “NEPA process”

Although the process of documenting compliance with NEPA (the National Environmental Policy Act) requires no drastic revisions, it can be managed more rigorously. Suggestions for revision can be grouped under five major steps: 1) getting a complete proposal from the applicant; 2) getting the decision-making process onto the right decision-making path; 3) modifying the applicant's proposal 4) going down a shorter path through the EA/FONSI (environmental assessment and finding of no significant impact) or through categorical exclusion review; and 5) going down the longer path through the EIS. Step 2 is perhaps the most critical, because there a decision must be made whether to write an EA/FONSI or an EIS, on the basis of whether the proposal would “significantly affect … the … environment.” In the past, this decision has not always been made promptly or rigorously. Accordingly, we suggest that the agency responsible for NEPA compliance should develop a system (a “black box”), consisting of a core group of specialists working with an interdisciplinary team, using sophisticated techniques for modeling impacts and directing both their research and their writing according to the concept of significance. By determining more efficiently and reliably whether the impacts of a proposal would be significant, such an approach would improve management of the total process.