Order Code RL33104
CRS Report for Congress
Received through the CRS Web
NEPA and Hurricane Response,
Recovery, and Rebuilding Efforts
September 28, 2005
Linda Luther
Environmental Policy Analyst
Resources, Science, and Industry
Congressional Research Service ˜ The Library of Congress

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NEPA and Hurricane Response,
Recovery, and Rebuilding Efforts
Summary
As local, state, and federal agencies respond to Hurricanes Katrina and Rita,
agency officials must determine the extent to which certain environmental laws and
regulatory requirements will apply to their response, recovery, and rebuilding efforts.
The requirements of the National Environmental Policy Act of 1969 (NEPA, 42
U.S.C. § 4321 et seq.) has drawn particular attention in the wake of the disaster.
Signed into law by President Nixon on January 1, 1970, NEPA was the first of
several major environmental laws passed in the 1970s. It declared a national policy
to protect the environment and created a Council on Environmental Quality (CEQ)
in the Executive Office of the President. To implement the national policy, NEPA
required that a detailed statement of environmental impacts be prepared for all major
federal actions significantly affecting the environment. The “detailed statement”
would ultimately be referred to as an environmental impact statement or EIS.
For many federal actions undertaken in response to an emergency or major
disaster, NEPA’s environmental review requirements are exempted under provisions
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford
Act); the CEQ regulations also allow for “emergency alternative arrangements” of
NEPA requirements. In the wake of the Katrina and Rita, congressional interest in
the NEPA process has focused primarily on projects for which no exemptions or the
potential for alternative arrangements exist.
Some Members of Congress have discussed the need for legislation that would
provide waivers to or streamline methods of compliance with NEPA’s environmental
review requirements. The need for those provisions, some Members of Congress
assert, originates from two areas of concern: the role that NEPA-related litigation
may have played in delaying past flood-control projects (two projects, in particular,
have been widely reported in the press); and NEPA’s role in high energy prices
caused by delays in energy development projects such as oil exploration projects and
refinery permitting. Others argue that NEPA is being used as a scapegoat after the
New Orleans flooding. Further, they charge that delays in energy-related projects are
often unfairly attributed to NEPA, when a “delay” may represent the time it takes for
multiple agencies to coordinate a response to complicated project proposals that may
require compliance with multiple local, state, and federal environmental laws.
This report provides an overview of NEPA requirements relevant to the
hurricanes response and recovery efforts, its application to emergency and
non-emergency actions related to the disaster, NEPA’s role in two past flood and
hurricane control projects that have been discussed in the press, and legislative
proposals that relate to the NEPA process. It will be updated as developments
warrant.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NEPA Provisions Relevant to the Hurricanes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NEPA’s Application to Emergency Response Activities . . . . . . . . . . . . . . . . . . . 3
NEPA’s Role in Past Flood Control Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Lake Pontchartrain and Vicinity Barrier Project . . . . . . . . . . . . . . . . . . . . . . 4
Mississippi River Flood Control Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
NEPA’s Role in Long-Term Response Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislative Proposal Regarding Hurricane Recovery Projects . . . . . . . . . . . 7
Legislative Proposal Regarding Energy Development Projects . . . . . . . . . . . 8

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NEPA Hurricane Response,
Recovery, and Rebuilding Efforts
Introduction
In the wake of Hurricanes Katrina and Rita, the federal government has engaged
in a variety of actions in response to the disaster and will continue to be involved in
actions to help the Gulf Coast states recover and rebuild. Many of the actions
proposed in relation to the disaster would require compliance with local, state, and
federal environmental laws and regulations.
The requirements of the National Environmental Policy Act of 1969 (NEPA, 42
U.S.C. § 4321 et seq.) have drawn particular attention from some Members of
Congress and other interested stakeholders (e.g., professional associations,
community organizations, and environmental groups). Among other provisions,
NEPA generally requires federal agencies to assess the environmental impacts of an
action before proceeding with it.
Emergency response actions, such as providing essential relief to victims,
managing disaster debris, and repairing or restoring public facilities damaged by the
disaster, are exempted from NEPA’s requirements under provisions of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). NEPA’s
environmental review requirements may, however, be applicable to long-term
recovery projects, such as the construction of new flood control mechanisms.
NEPA Provisions Relevant to the Hurricanes
NEPA requires all federal agencies to consider the environmental impacts of a
proposed action before proceeding with it. To document such consideration, NEPA
requires the preparation of an environmental impact statement (EIS) for federal
actions that will significantly impact the environment.1 The “significance” of an
action’s environmental impacts must be determined case-by-case, based on an
analysis of the context and intensity of the impacts.2 If it is not clear whether a
project would have significant impacts, an Environmental Assessment (EA) must be
prepared in order to make that determination.
1 For information about NEPA’s requirements, see CRS Report RS20621, Overview of
NEPA Requirements, by Pamela Baldwin.
2 40 C.F.R. § 1508.27.

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Regulations that specify how agencies must implement NEPA’s EIS
requirements were promulgated in 1978 by the Council on Environmental Quality
(CEQ) in the Executive Office of the President.3 In addition, CEQ regulations
directed federal agencies to adopt and enforce their own regulations or procedures
implementing NEPA’s environmental review requirements that are specific to typical
classes of actions undertaken by that agency.4 The CEQ regulations also directed
agencies to develop categories of actions that are determined through agency
experience to typically have no significant environmental impact, and thus may
generally be categorically excluded from the requirement to prepare an EA or EIS.
Such actions are referred to as categorical exclusions.
NEPA has been interpreted to be a procedural statute that does not require
agencies to elevate environmental concerns above others. Instead, NEPA requires
only that the agency assess the environmental consequences of an action and its
alternatives before proceeding. If the adverse environmental effects of the proposed
action are adequately identified and evaluated, the agency is not constrained by
NEPA from deciding that other benefits outweigh the environmental costs and
moving forward with the action.
Most agencies use NEPA as an umbrella statute, meaning it is a framework to
coordinate or demonstrate compliance with any studies, reviews, or consultations
required by any other environmental laws. The use of NEPA in this capacity can lead
to confusion. The need to comply with another environmental law, such as the Clean
Water Act or Endangered Species Act, may be identified within the framework of the
NEPA process, but NEPA itself is not the source of the obligation.
Unlike other environment-related statutes, no individual agency has enforcement
authority with regard to NEPA’s environmental review requirements.5 This lack of
enforcement authority is sometimes cited as the reason that litigation is chosen as an
avenue by individuals and/or groups that disagree with how an agency meets NEPA’s
mandate or EIS requirements for a given project (e.g., they may charge that an EIS
is inadequate or that the environmental impacts of an action will in fact be significant
when an agency claims that they are not). Critics of the NEPA process charge that
individuals and/or groups who disapprove of a federal project will use litigation to
delay or halt it. Others argue that litigation only results when agencies do not comply
with NEPA’s procedural requirements.
3 40 C.F.R. §§ 1500 et seq.
4 Two agencies that will play a significant role in response and recovery actions are the
Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers
(the Corps). Each agency has its own regulations to guide its implementation of NEPA.
Those environmental regulations can be found at 44 CFR § 10 (FEMA) and 33 CFR § 230
(the Corps) .
5 CEQ is charged with providing oversight and guidance to agencies with regard to EIS
preparation. EPA is required to review and comment publicly on the environmental impacts
of proposed federal activities, including those for which an EIS is prepared. EPA is also the
official recipient of all EISs prepared by federal agencies. However, neither agency has
enforcement authority with regard to an agency’s environmental review requirements.

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NEPA’s Application to
Emergency Response Activities
In responding to emergencies and major disasters, existing provisions of the
Stafford Act or CEQ’s regulations either statutorily exempt certain activities from
NEPA or allow for alternative means of complying with CEQ’s regulatory
provisions. Certain response actions specifically excluded from NEPA by the
Stafford Act (at 42 U.S.C. § 5159) include
! The provision of certain federal resources or assistance essential to
meeting immediate threats to life and property resulting from a
major disaster. (See actions specified under 42 U.S.C. §§ 5170a and
5170b.)
! The repair, restoration, and replacement of public facilities or certain
private non-profit facilities, damaged or destroyed by a major
disaster. (See 42 U.S.C. § 5172.)
! Debris removal from public or private land after a major disaster.
(See 42 U.S.C. § 5173.)
It is important to understand that, as with actions that are categorically excluded,
an action statutorily excluded from NEPA is not exempt from the requirements of the
other environmental statutes. An agency would still be responsible for complying
with all other applicable local, state, and federal laws and regulations relating to
health, safety, and the environment.6 This would encompass federal environmental
statutes including, among others: the Clean Air Act, the Clean Water Act, the
Resource Conservation and Recovery Act (RCRA), the Coastal Zone Management
Act, the Coastal Barrier Resources Act, the Endangered Species Act, and the
National Historic Preservation Act.
In addition to statutory exclusions to NEPA, CEQ regulations allow for
“alternative arrangements” in the event of an emergency.7 In such circumstances,
the federal agency taking an action should consult with CEQ about what those
arrangements may be and the time frame within which they must be completed.
These alternative arrangements do not waive the requirement to comply with NEPA
regulations, but establish an alternative means of compliance. Agencies and CEQ are
to limit such arrangements to actions necessary to control the immediate impacts of
the emergency. For example, in 1998, the U.S. Forest Service worked with CEQ to
establish alternative regulatory compliance arrangements to implement emergency
actions to restore portions of approximately 103,000 acres of forested lands on the
National Forests and Grasslands in Texas that were damaged by a windstorm. The
agency believed it would have taken up to six months using normal NEPA
6 Local, state, and federal environmental laws and regulations may still provide some
exemption or regulatory allowance in the event of an emergency.
7 40 CFR § 1506.11. The Corps has regulatory provisions similar to CEQ’s that address
emergency actions. FEMA’s regulations reference statutory exemptions provided under the
Stafford Act.

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procedures before it could start restoring the damaged ecosystem, which included
critical habitat for the red-cockaded woodpecker and bald eagle.8
On September 8, 2005, CEQ released a memorandum that provides “emergency
alternative arrangements” under NEPA that are specific to Hurricane Katrina.9
According to CEQ, activities that may be completed in accordance with these
arrangements include the disposal of unsorted disaster debris (waste that includes
both hazardous and non-hazardous constituents) at a specific site or the permanent
replacement of certain major facilities.
NEPA’s Role in Past Flood Control Projects
NEPA’s role in two past flood control projects has received attention in the
press in the wake of Katrina, 10 which, in turn, has draw the attention of some
Members of Congress.11 At issue in those press accounts is whether or not NEPA-
related litigation played a role in delaying New Orleans hurricane and flood
protection projects.12
Lake Pontchartrain and Vicinity Barrier Project
The Lake Pontchartrain and Vicinity Barrier Project was approved by Congress
in the Flood Control Act of 1965. The original design would have involved the
construction of a barrier system at the entrances to Lake Pontchartrain to protect New
Orleans from storm surges. In 1974, the Corps issued a final EIS for the project. In
response, a group of community and environmental organizations, including a group
called “Save our Wetlands,” filed suit asserting that the Corps’ EIS did not comply
with NEPA.13 The group argued that the Corps had not considered the impact that
the barrier system would have on local fisheries and that, they argued, alternative
8 See the March 23, 1999 statement of Sandra Key, Associate Deputy Chief, Programs and
Legislation, U.S. Department of Agriculture’s Forest Service, before the Subcommittee on
Forests and Forest Health, U.S. House of Representatives Committee on Resources, Hearing
Concerning Chairman’s Draft Legislation on Alternative NEPA Arrangements.
9 See “Emergency Actions and NEPA” available online at [http://ceq.eh.doe.gov/nepa/
nepanet.htm].
10 The two original articles, that have since been cited in other press accounts, are Ralph
Vartabedian and Peter Pae’s “A Barrier That Could Have Been,” Los Angeles Times,
September 9, 2005; and John Berlau’s, “Greens vs. Levees: Destructive river-management
philosophy,” The National Review Online, September 8, 2005.
11 See House Committee on Resources’ NEPA Task Force, press release “U.S. Reps to
Review Environmental Reg’s Role In Affordable Energy, Post-Katrina Development,”
September 9, 2005, available at [http://resourcescommittee.house.gov/nepataskforce/].
12 For legal analysis of the case law related to these projects, please contact the CRS
American Law Division.
13 Save Our Wetlands v. Rush; the Judge’s Order, as well as background information
regarding the case, posted by Save Our Wetlands, is available online at
[http://www.saveourwetlands.org/].

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hurricane protection measures, such as building up existing levees, had not been
considered.
In 1977, Judge Charles Schwartz, Jr. ruled that the Corps’ final EIS did not
comply with the requirements of NEPA. However, in his ruling, the judge stated:
[This] opinion should in no way be construed as precluding the Lake
Pontchartrain project as proposed or reflecting on its advisability in any manner.
The Court’s opinion is limited strictly to the finding that the environmental
impact statement of August, 1974 for this project was legally inadequate. Upon
proper compliance with the law with regard to the impact statement this
injunction will be dissolved and any hurricane plan thus properly presented will
be allowed to proceed.
In response to the court injunction, the Corps conducted a re-evaluation study
of the project. The study concluded that the barrier plan should be abandoned in
favor of a “high-level plan.” The high-level plan included a variety of elements
including raising and strengthening existing hurricane protection levee systems;
completing certain hurricane protection levee systems; repairing and rehabilitating
seawalls; and building new hurricane levees.14 According to a 1982 GAO report,
upon reevaluating the project alternatives, the Corps found that making more
protective levees and flood walls would be more cost effective than inlet barriers.15
The outcome, then, was that the Corps pursued alternative flood protection
systems; it is difficult to know whether the Corps would have ultimately proceeded
with the original barrier plan absent the requirement to improve its EIS and the
opposition to the project by some members of the public. Nor is it possible to know
whether the original plan would have been more successful in protecting New
Orleans.
Mississippi River Flood Control Project
The second project discussed in the press relates to a Mississippi River flood
control project involving over 1,610 miles of flood control protection. Completion
of the entire project will require construction of 128 separate components across
seven states, including Louisiana. The primary purpose of the project is improved
flood protection from the Mississippi River, not hurricane protection (e.g., storm
surge from the Gulf of Mexico).
14 The Corps’ Water Resources Development in Louisiana 1998, see “Lake Pontchartrain
and Breton Sound Basins,” with discussion of the Lake Pontchartrain and Vicinity
Hurricane Protection, pp. 106-107, available online at [http://www.mvn.usace.army.mil/
pao/bro/wat%5Fres98/]. For information regarding the status of the Project before Hurricane
Katrina, see the Corps’ Current Project List, online at [http://www.mvn.usace.army.mil/
pd/projsasp/mainlist.asp].
15 General Accounting Office, Report to the Secretary of the Army: “Improved Planning
Needed By The Corps Of Engineers To Resolve Environmental, Technical, And Financial
Issues On The Lake Pontchartrain Hurricane Protection Project,” GAO/MASAD-82-39,
August 17,1982, available online at [http://archive.gao.gov/d42t14/119206.pdf].

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The final EIS for the project was completed in 1976. In 1996, the Mississippi
River Basin Alliance, with other conservation groups, filed suit on the basis that a
supplemental EIS was needed to account for new information and new circumstances
that had arisen over the previous 20 years; and changes to the project since the final
EIS was issued. Settlement negotiations in the case resulted in a Consent Decree that
obligated the Corps to prepare a supplemental EIS. The Consent Decree included a
provision that allowed the Corps to proceed with project components scheduled for
construction, while a supplemental EIS was being prepared for the segment of the
levee at issue.16 According to the parties in this case, the levee segment at issue is
located primarily between Vicksburg, Mississippi and Baton Rouge, Louisiana, 100
miles north of New Orleans.
After distributing the supplemental EIS, and receiving public comment on it, the
Corps issued its final EIS in July of 1998. Subsequently, the Mississippi River Basin
Alliance and others filed suit again, this time charging that the 1998 final EIS was
deficient.17 One of their claims was that the alternatives analysis (a required element
of an EIS) failed to adequately evaluate an appropriate range of alternatives.
However, a U.S. District Court ruled, and a Circuit Court affirmed, that the Corps
had satisfied NEPA’s requirement. In delineating its standard of review in the case,
the Circuit Court stated that “NEPA exists to ensure a process, not a result.”18 The
Corps was free to continue with this project and it is now in the construction stage.
There is no information available to suggest that the Corps’ work on the
segment of the project in southern Louisiana (that could affect river flooding in New
Orleans) was delayed by this litigation.
NEPA’s Role in Long-Term Response Actions
NEPA’s role in two broad categories of federal actions has drawn the attention
of some Members of Congress. The first category includes projects intended to
facilitate the long-term recovery of the impacted region. These actions include those
taken in direct response to Katrina and Rita. Examples of such projects may include
flood-control or hurricane protection projects (e.g., new wetlands restoration projects
or new levee construction projects); and federally-funded construction of new
housing (as opposed to federal funding of the repair or reconstruction of previously
existing housing or projects that were covered under an existing NEPA analysis).
The second category of actions may include those undertaken as an indirect result of
the two hurricanes. Primarily, these include energy development projects undertaken
in response to increased oil and natural gas prices (e.g., oil exploration projects and
expedited refinery permitting and construction).
16 Terms of the Consent Decree in this case were provided in a September 22, 2005
telephone interview with Melissa Samet, an attorney with American Rivers, a party to the
case.
17 Mississippi River Basin Alliance v. Westphal, 230 F.3d 170 (5th Cir. 2000).
18 Ibid, 175.

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Both classes of projects would not likely qualify for the Stafford Act exemptions
or alternative arrangements that apply under emergency conditions. However, it is
not unprecedented for Congress to provide statutory exemptions to NEPA or to
specify changes in environmental review requirements for specific projects.19 Such
exemptions and changes to the NEPA process are found in a variety of current
legislative proposals that would either waive NEPA or streamline its provisions for
certain hurricane recovery projects or energy development projects, two of which are
discussed below.20
Legislative Proposal Regarding Hurricane Recovery Projects
Current legislative proposals go beyond the existing provisions of the Stafford
Act that exempt from NEPA activities that repair, restore, and replace public
facilities or private non-profit facilities, damaged or destroyed by a major disaster.
Introduced on September 22, 2005, “The Louisiana Katrina Reconstruction Act” (S.
1765), would exempt certain projects from NEPA. Under § 501 of the bill, a
commission known as the “Protecting Essential Louisiana Infrastructure, Citizens
and Nature Commission,” referred to as the Pelican Commission, would be
established. One duty of the Pelican Commission would be to enter into a contract
with the Corps to develop a work plan for the design and implementation of
programs intended to:
! Protect the Louisiana coastal area from future flooding and
devastation caused by hurricanes;
! Restore and reconstruct critical wetlands; and
! Provide for navigational interests.21
In developing the work plan, projects within the “major disaster area” declared
by the President on August 29, 2005 would be considered “priority projects.” Also
included as priority projects are, at a minimum, certain hurricane protection projects
(including the Lake Pontchartrain and Vicinity Barrier Project, discussed above);
Louisiana Coastal Area ecosystem restoration and storm surge protection projects;
flood control projects; and navigation projects.
Projects implemented by the Pelican Commission in accordance with the work
plan would be deemed to comply with all applicable requirements of NEPA.22 In
addition to waivers of NEPA’s requirements, § 502 of S. 1765 would allow the
19 See CRS Report 98-417, Statutory Modifications to the Application of NEPA, by Pamela
Baldwin.
20 Not discussed in this report is S. 1711, introduced on September 15, 2005, by Senator
Inhofe. That bill would allow the EPA Administrator to waive or modify the application of
any law or regulation under the administrative jurisdiction of EPA, if necessary to respond,
in a timely and effective way, to a situation or damage relating to Hurricane Katrina. Since
NEPA is not administered by EPA, it is viewed as unlikely that these provisions would
apply to an agency’s NEPA requirements.
21 S. 1765, § 501(d)(1).
22 S. 1765, § 501(d)(8).

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President, for the two-year period after enactment of the bill, to issue an emergency
permit for:
[A]ny project carried out in response to, or as a part of the reconstruction effort
relating to, Hurricane Katrina or a related condition, as the President determines
to be in the best interests of the United States.
The types of projects that would qualify for an emergency Presidential permit
are broader than the types of projects that may qualify for a NEPA waiver under the
Pelican Commission’s work plan. These projects would also be exempted from
NEPA under §§ 652 — Authority to facilitate reconstruction.23 Under that section,
it is specified that the President’s emergency permitting authority applies to the
authority of: the Administrator of the Environmental Protection Agency and the
Secretary of Agriculture with regard to the application of pesticides to control the
mosquito population (under the Federal Water Pollution Control Act and the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et. seq.)); and the
Secretaries of Agriculture and the Interior with regard to laws to expedite salvaging
timber in the area and securing timber supply for the pulp and paper industry.
Further, with regard to the Presidential emergency permitting process, any project or
activity relating to the recovery, reconstruction, or repair in any area deemed a major
disaster area would not be required to complete a statement or analysis (i.e., an EIS
or EA) under any law or regulation administered by the CEQ.
Legislative Proposal Regarding
Energy Development Projects
During the passage of the Energy Policy Act of 2005 (P.L. 109-58, H.R. 6),
NEPA’s potential role in delaying certain energy development projects was debated.
It was charged by some Members of Congress that changes to the NEPA
implementation process were needed to reduce delays and more efficiently facilitate
delivery of needed projects. Other Members of Congress argued that delays attributed
to the NEPA process may be the result of a variety of factors such as poor
implementation of already-existing regulations (either individual agency or CEQ
regulations).
The Energy Policy Act of 2005 includes a variety of provisions that are intended
to expedite the process for completing or complying with NEPA’s environmental
review requirements (for more information about these provisions, see CRS Report
RL32873, Key Environmental Issues in the Energy Policy Act of 2005 (P.L. 109-58,
H.R. 6)). In the wake of Hurricanes Katrina and Rita, some Members of Congress
have begun to look at additional legislative proposals to expedite NEPA. The
projects drawing the most attention are those that involve expanding refinery
capacity. This may include waiving environmental requirements, including NEPA,
for siting and permitting new and expanded refineries. The first such bill, the “Fuel
Supply Improvement Act of 2005” (H.R. 3836), was introduced by Congressman
23 Under Title VI — Hurricane Protection and Environmental Restoration, Chapter 4 —
Environmental Regulations.

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Shadegg on September 20, 2005. The stated intention of the bill is to expedite the
construction of new refining capacity.
Section 3 of H.R. 3836 specifies expedited refinery permitting requirements that
would be applicable to refinery repair or reconstruction at an “existing refinery
undertaken in the area affected by Hurricane Katrina and undertaken as a result of
Hurricane Katrina.” The bill would require the approval of any application for a
permit to construct or expand a petroleum refining facility within 90 days after
receiving the application. The bill specifies that the law would apply to permits
required under the Clean Air Act, the Federal Water Pollution Control Act, the Safe
Drinking Water Act, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, the Solid Waste Disposal Act, the Toxic Substances
Control Act, the National Historic Preservation Act, and NEPA. (NEPA does not,
however, include permitting requirements. Since environmental review requirements
under NEPA are not addressed in this bill, it is considered questionable whether
those requirements would similarly be subject to the 90-day approval requirement.)
Section 4 of this bill includes provisions regarding litigation brought against an
applicant with regard to the permit approval process. At the request of the applicant,
the Secretary of Energy would be required to provide legal representation for the
applicant if the Secretary believed that the case lacked merit, was brought solely to
delay the completion of the facility, or would have the effect of delaying the
completion of the facility in a period when United States domestic refining capacity
is insufficient.

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