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NEPA 101: Introduction to the National Environmental Policy ActBy Linda M. Bullen In late 1969, while environmental activists throughout the United States were organizing for the first Earth Day celebration, Congress completed and sent to President Nixon a concise bill designed to restructure how federal agencies deal with environmental issues. Th e bill was entitled the National Environmental Policy Act of 1969 and is commonly referred to as "NEPA." Congress enacted NEPA on January 1, 1970 and codified it at 42 U.S.C. § 4321 et seq. NEPA is not a typical federal statute in that it accomplishes its objectives by providing a set of general environmental policies for federal agencies, but does not impose substantive requirements. For example, NEPA does not explain how to control pollution, protect species, or manage land and natural resources to meet the needs of the public; instead, NEPA fills in the gaps between environmental laws and other requirements that apply to a proposed federal action. The following is an overview of the key provisions of NEPA and its implementing regulations. NEPA is divided into two parts. Title I is the declaration of national environmental policy and Title II establishes the Council on Environmental Policy, the governing body of NEPA. Title ITitle I establishes the policy behind NEPA. "[R]ecognizing the profound impact of man's activity on . . .the natural environment," Congress declared that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. § 4331(a). There are seven aspects of NEPA's overarching policy. The NEPA statute articulates the following six goals: 1) to fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; 2) to assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; 3) to attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; 4) to 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; 5) to achieve a balance between population and resource use that will permit high standards of living and a wide sharing of life's amenities; and 6) to enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. See 42 U.S.C. § 4331(b)(1)–(b)(6). The seventh aspect of NEPA recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. See 40 U.S.C. § 4331(6)(c). In conformance with this overarching policy, NEPA requires that "the policies, regulations, and public laws of the United States . . . be interpreted and administered in accordance with the policies set forth in this Act." 42 U.S.C. § 4332. Environmental Impact StatementThe most publicly well known aspect of NEPA is the environmental impact statement or "EIS," which Title I requires must be included whenever there are "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(c). Each EIS must contain a detailed statement on the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided, the relationship between short term uses and long term productivity, and any irreversible and irretrievable commitment of resources resulting from implementation of the proposed action. 42 U.S.C. § 4332 (C)(i)–(v). The EIS must discuss the impacts to the environment of all Federal "actions." This term has been broadly defined to include, not only actions carried out by federal agencies and federal agency rule making, but also state and local programs if they receive federal assistance and private development authorized by federal permits. Title IITitle II of NEPA creates the Council on Environmental Quality (CEQ) within the executive branch of the Federal government. The CEQ is composed of three members, appointed by the President to serve at his pleasure, by and with the advice and consent of the Senate. The President designates one of the members of the Council to serve as Chairman. The CEQ is integral to NEPA, because it oversees the activities of federal agencies in matters impacting the environment and natural resources and assists the President in forming policy. Specifically, the duty and function of the CEQ is to: 1) assist and advise the President in the preparation of the annual Environmental Quality Report required by Section 201 of NEPA; 2) gather timely and authoritative information concerning conditions and trends in the quality of the environment; 3) review and appraise the various programs and activities of the Federal Government in light of the policies set forth in Title I of NEPA; 4) develop and recommend to the President national policies to foster and promote the improvement of environmental quality; 5) conduct investigations, studies, surveys, research and analyses relating to environmental quality and ecological systems; 6) document and define changes in the natural environment; 7) report at least once each year to the President on the state and condition of the environment; and 8) make and furnish such studies and reports as the President may request. 42 U.S.C. § 4344. In 1977, President Carter directed the CEQ to implement NEPA by converting the CEQ guidelines into formal regulations. These regulations were finalized in November 1978, and are codified at 40 C.F.R., Part 1500. The stated purpose of the regulations is to reduce excessive NEPA paperwork, to better integrate NEPA with other planning and environmental review procedures, to encourage more effective public involvement, and to reduce delay in completing the NEPA process. NEPA regulations place a renewed focus on NEPA's dual purpose of improving environmental quality and acting on what Congress and the public learn. 40 C.F.R. § 1501.1. Environmental AssesmentThe regulations establish the ground rules for key NEPA documents, the Environmental Assessment (EA) and EIS. An EA is a concise public document prepared by a federal agency when a proposed action is neither covered by a categorical exclusion nor otherwise exempt from NEPA. Federal agencies use the EA to determine whether the proposed action has the potential to cause significant environmental effects, and it is therefore the primary tool for determining whether an EIS is necessary. The NEPA regulations do not contain a detailed discussion regarding the format and content of an EA. However, the regulations require that an EA briefly discuss the following: 1) the need for the proposed action; 2) the proposed action and alternatives; 3) the probable environmental impacts of the proposed action and alternatives; and 4) the agencies and persons consulted during the preparation NEPA continued from page 15 of the EA. 40 C.F.R. § 1508.9 (b). The CEQ advise federal agencies to limit the length of the EA to between ten and fifteen pages. Federal agencies must prepare an EIS if the lead agency determines that the proposed action has the potential to significantly affect the quality of the human environment and that the action cannot be modified such that these impacts can be avoided. See 42 U.S.C. § 4332 (c). NEPA requires that an EIS disclose: 1) the environmental impact of the proposed action; 2) any unavoidable adverse environmental impacts if the proposed action is implemented; 3) alternatives to the proposal; 4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and 5) any irreversible and irretrievable commitment of resources resulting from implementation of the proposed action. The requirements for the contents of an EIS are set forth in 40 C.F.R. § 1502.10. In addition, the regulations include requirements for a reduction in excessive paperwork; mechanisms for reduction in delays; a requirement that federal agencies issue or revise their own procedures in a manner consistent with CEQ regulations so that the NEPA purposes are effectuated; and a requirement for the establishment of a "scoping process" for making an early determination of the scope of significant issues to be addressed in EISs. NEPA imposes considerable obligations to any project involving federal agencies, federal lands or federal money. Recognition of the NEPA requirements and early involvement in the NEPA process help facilitate the time-consuming and often costly procedures which are required to achieve compliance with NEPA. Linda Bullen is a trial attorney in Lionel Sawyer & Collins' Litigation Department. Her practice includes environmental law as a emphasis having developed an environmental law practice with the U.S. Environmental Protection Agency as Assistant Regional Counsel, Region V, Chicago 1986-1988 and a litigation partner in the Chicago-based international law firm of McDermott, Will & Emery from 1988-1994. Ms. Bullen was the Assistant Attorney General in Minnesota from 1994-1997, where she prosecuted environmental crimes and counseled the Minnesota Department of Natural Resources and the Minnesota Department of Transportation. Ms. Bullen advises the firm's clients on complex state and federal environmental matters, specializing in hazardous waste, water and air issues. Habitat Conservation Planning under the Endangered Species Act: What it means for Southern NevadaBy Bret Birdsong The Endangered Species Act or ESA—love it, hate it, wield it, or fear it—is the T. Rex of federal environmental law, the statute with the biggest and sharpest teeth. When the jaws of the law clamp down on the use of private and public land and water rights, it has the power to bring development to a halt in order to protect species on the brink of extinction by preserving essential habitat. But habitat conservation plans, or HCPs, offer a potentially helpful way to mitigate the harshest effects of the law. If they bear out the hopes of their proponents, they just might help save the Endangered Species Act itself from extinction. The ESA frameworkTwo provisions of the ESA are its sharpest fangs and its most important tools for species protection. First, section 9 of the ESA, 16 U.S.C. § 1538(a)(1), prohibits activities that would result in the "take" of an endangered species. The ESA defines take as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(16). Federal regulations have interpreted the so-called "no-take" provisions to prohibit "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering . . ." Sweet Home v. Babbitt, 515 U.S. 687 (1995) (upholding and quoting 50 C.F.R. § 173). In addition to applying to species listed as "endangered," the "no-take" edict applies to most species listed as "threatened." See 16 U.S.C. § 1538(a)(1)(G). Importantly, the prohibition on taking is enforceable by civil penalties of up to $25,000 per violation, and criminal penalties, including imprisonment for up to a year, for "knowing" violations. 16 U.S.C. § 1540 (a) and (b). The second fang is Section 7 of the ESA. Section 7 prohibits federal agencies from authorizing, funding or carrying out any action that would "jeopardize the continued existence" of a threatened or endangered species or result in the "adverse modification" of designated "critical habitat" of such species. 16 U.S.C. § 1536(a)(2). It requires federal agencies to consult with the Fish and Wildlife Service (FWS) (for terrestrial and freshwater species) or the National Marine Fisheries Service (NMFS) (for saltwater and anadromous species) to ensure compliance with the "no jeopardy" rule. It further empowers the wildlife agencies to impose "reasonable and prudent alternatives" to avoid jeopardy and adverse habitat modification. 16 U.S.C. § 1536(a) and (b). These twin fangs are emblematic of the ESA's "roadblock" approach to environmental regulation. They set firm standards which, if applied without the possibility of waiver or exception, could effectively bar some economically valuable and legitimate activities that have even small impacts on endangered species. Even where the impacts on endangered species are large, however, the "roadblock" interposed by the ESA can result in intense pressure on the public will to protect species. Indeed, the ESA faces continual threats of "reform" that would weaken its effectiveness to protect ecosystems and critical habitat for imperiled species. The promise of Habitat Conservation PlansThe ESA has so far escaped attempts at gutting its strong protections. One reason is that the law already contains some "pressure release" valves. These are legal mechanisms that can suspend the law's most stern prohibitions in rare cases. One such release valve is the so-called "God Squad" exemption process for Section 7. 16 U.S.C. § 1536(g). Under this process, a special, cabinet-level committee can—in narrow circumstances after rigorous inquiry—exempt a federal agency from Section 7's "no jeopardy" rule. In essence, this rarely invoked process allows the God Squad to allow activities to proceed that likely will drive a species over the brink into extinction. More recently, another pressure release valve has gained visibility and scope—the Habitat Conservation Plan (HCP). Section 10 of the ESA provides for the issuance of permits to allow the "take" of listed species where the take is incident to otherwise lawful activities. 16 U.S.C. § 1539(a)(1). In order to obtain a permit, the applicant—whether a private party or a governmental agency—must submit to the FWS (or NMFS) an HCP describing the impact of the taking, measures to minimize and mitigate the impact, alternatives to the proposed action and why they were not adopted and measures that might be imposed as conditions to ensure the success of the plan. 16 U.S.C. § 1539(a)(2). Upon certain findings, including that the taking will not appreciably impact the survival of the species, the FWS (or NMFS) may grant the "incidental take" permit, subject to terms and conditions it deems necessary and subject to revocation if the permit holder does not comply with the terms of the permit. Id. In essence, the approval of an HCP and the issuance of an incidental take permit create a safe harbor from Section 9's harsh penalties for taking an endangered species. Although HCPs initially grew out of the recognition that some lawful activities might lead to the taking of individual members of a protected species without appreciably harming the species' chance for survival, the idea has grown to encompass much more. First, HCPs are increasingly being used as ecosystem management tools that focus on many species that rely on habitat in an area affected by proposed human activities. Today there is a trend away from looking at one species at a time toward complex, multi-species HCPs that sometimes address dozens of species. The result of this trend is that HCPs represent a unique kind of place-based environmental planning and management. Second, HCPs are not just about "incidental takes" anymore. They are increasingly being used as omnibus vehicles to address a wide variety of ESA compliance issues. Where government agencies and private parties both have interests in a proposed or ongoing action—say, the operation of a dam for power and irrigation purposes—multispecies HCPs often address Section 7 compliance issues in addition to Section 9 concerns. Indeed, it is increasingly common for HCPs to address not only species which are already listed, but also species which are predicted possibly to become listed in future years. By including them in an HCP process, the hope is to prevent their ever becoming listed—in other words, to stave off indefinitely the imposition of the ESA's sharp teeth. Third, and perhaps most important, HCPs present an opportunity for collaborative management of species protection programs. As the recent experience in Nevada shows, multi-species HCPs are increasingly developed through a collaborative, consensus based process involving all stakeholders in the decisions on the table, including environmentalists, state agencies, Indian tribes, federal agencies, and natural resource users. At least in theory, because they are applicant-driven and encompass the views of all stakeholders, they are something of an alternative to traditional "command and control" environmental regulation. Former Secretary of the Interior Bruce Babbitt had a grand vision for HCPs. He believed that, used properly, they could help to avoid the "train wrecks" the ESA has unfortunately become known to cause. In this hope, he promulgated a "No Surprises" policy, which essentially promised a permit holder who developed an approved HCP that more stringent conservation obligations would not later be imposed, even if unforeseen circumstances arose. Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. 8859, 8860 (Feb. 23, 1998). In short, Babbitt envisioned HCPs not just the kind of regulatory instrument that could save species, but one that could save the Endangered Species Act itself. HCPs in Southern NevadaNevada has been near the leading edge of the application of the HCP idea on a scale large enough to encompass landscapes and ecosystems. Among the major HCPs being implemented in Nevada are the following: The Clark County Multi-species Habitat Conservation Program. This HCP was approved by Secretary of the Interior Gail Norton in 2000. It allowed the issuance of an incidental take permit for the development of nearly half a million acres of non-federal land in Clark County for commercial, residential and transportation uses. Superseding the 1995 HCP for the threatened desert tortoise, the MSHCP encompasses two listed species, some 77 species of concern, and more than 150 other species. It is slated to be in place for 30 years. For more information see www.accessclarkcounty.com/Air_Quality/Environmental/MultipleSpecies/MultipleSpeciesHabitatConservationPlan.htm. The Lower Colorado Multi-species Conservation Program.This HCP encompasses broad ESA compliance, including incidental take permits and Section 7 consultation for six federal agencies, six Indian tribes, six state agencies, including the Nevada Division of Wildlife, and 36 cities, water districts and power authorities. It covers 27 species and public and private activities along 400 miles of riparian habitat along the lower Colorado River from Lake Mead to the Mexican border. It will be in place for 50 years. For more information see www.usbr.gov/lc/lcrmscp/. ConclusionIt is still too soon to tell whether HCPs live up to their promise. Still in their infancy, the broad scoped multi-species habitat conservation plans in Southern Nevada have drawn some criticisms, especially from environmental groups. Major environmental organizations dropped out of the Lower Colorado River HCP process, for example, because it did not address habitat in Mexico which accounted for the vast majority of habitat for the covered species. And the Clark County Multi-species HCP contains a number of aspects that have yet to be implemented. Only time will tell whether HCPs help to save the ESA and the species it means to protect. Professor Birdsong earned his J.D. from University of California, Hastings College of Law in 1993. After clerking for Judge Robert P. Patterson, Jr., of the United States District Court for the Southern District of New York, Professor Birdsong served with the United States Department of Justice, Environment and Natural Resources Division, as a trial attorney focusing on public land and natural resources litigation from 1994-2000. Professor Birdsong teaches Environmental Quality Law, Public Lands and Natural Resources Law, and Administrative Law at UNLV's William S. Boyd School of Law. |
© Originally published in COMMUNIQUÉ (September, Vol. 27, No. 9), the official journal of the Clark County Bar Association. All rights reserved.