The Legal Framework of the National Environmental Policy Act

The Legal Framework of the National Environmental Policy Act

Updated September 22, 2021
The Legal Framework of the National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA),
other financial assistance where the federal agency does not
42 U.S.C. §§ 4321 et seq., requires federal agencies to
exercise sufficient control or responsibility. Id. An agency
identify and evaluate impacts of “major Federal actions
may consider whether other actions qualify as “major
significantly affecting the quality of the human
Federal actions.”
environment.” Although an agency must consider these
impacts, it need not elevate these environmental concerns
NEPA Thresholds
above others. Instead, NEPA requires agencies to “take a
The 2020 Rules include “thresholds” to codify
hard look at environmental consequences” of their
circumstances where courts have held that NEPA does not
proposed actions, consider alternatives, and publicly
apply. These thresholds require agencies to determine
disseminate such information before taking final action.
(1) whether the action is exempt by statute; (2) whether
Robertson v. Methow Valley Citizens Council, 490 U.S.
NEPA compliance would “clearly and fundamentally
332, 350 (1989) (emphasis added).
conflict” with another statute; (3) whether NEPA
compliance “would be inconsistent with Congressional
NEPA also established the Council on Environmental
intent” of another statute; (4) whether the action is
Quality (CEQ), which issues regulations and guidance
nondiscretionary such that the agency lacks authority to
detailing how federal agencies must implement NEPA. 40
consider the environmental effects; and (5) whether review
C.F.R. pts. 1500–1518. Through these actions, CEQ has
under a different statute is functionally equivalent to NEPA.
defined and interpreted some of NEPA’s broad procedural
Id. § 1501.1(a).
mandate. In 2020, CEQ finalized revisions to its 1978
NEPA regulations, which apply to all proposals subject to
Assessing Significant Impacts
NEPA reviews after September 14, 2020, although agencies
Before undertaking NEPA review for “major Federal
may choose to apply them to ongoing reviews. 85 Fed. Reg.
actions,” the 2020 Rules require an agency to assess
43,304 (July 16, 2020) (2020 Rules). These regulations are
whether the proposed action (1) normally has no significant
being challenged by a number of states and other
impacts and is categorically excluded, (2) is likely to have
stakeholders, and are currently stayed by the courts pending
CEQ’s review and revision of them.
insignificant impacts or unknown impacts, or (3) is likely to

have significant impacts. Id. § 1501.3.
This In Focus describes the legal obligations that NEPA
CEQ directs agencies to determine whether the impacts
and the 2020 Rules impose on federal agencies. It also
from a proposed action are “significant” by assessing the
highlights some changes that these rules made to the 1978
“potentially affected environment and degree of the effects”
regulations and CEQ’s plans for revising them.
the action may have. Id. § 1501.3(b). These effects must
Federal Actions Subject to NEPA
include “short- and long-term effects”; “beneficial and
adverse effects”; “effects on public health and safety”; and
Generally, NEPA’s procedural mandates apply to all
effects that would violate laws protecting the environment.
proposed “major Federal actions significantly affecting the
Id. “Effects” are defined in the 2020 Rules as “changes to
quality of the human environment.” 42 U.S.C. § 4332.
the human environment from the proposed action or
Accordingly, to determine if NEPA applies to a proposed
alternatives that are reasonably foreseeable and have a
activity, agencies must assess whether the action is “major,”
reasonably close causal relationship to” those actions. This
if the effects from the major action are “significant,” and
includes effects “that occur in the same time and place” as
whether the action is otherwise exempt from NEPA.
the proposed and alternative actions, as well as effects that
are “later in time or farther removed.” However, a “‘but for’
Definition of “Major Federal Action”
NEPA does not define “
causal relationship is insufficient to make an agency
major Federal action.” CEQ,
responsible for a particular effect under NEPA.” Id.
limited the scope of “major Federal actions” to those
“subject to Federal control and responsibility.” 40 C.F.R. §
The current definition of “effects” builds on but also
1508.1(q). The 2020 Rules further refine the scope by
departs from the 1978 regulations in several ways. First,
listing actions that do not qualify and other actions that may
CEQ revised the definition of “effects” by eliminating
or “tend to” qualify. Actions that do not qualify as major
references to “direct” and “indirect” effects, which are not
federal actions include (1) nondiscretionary or
terms used in NEPA. Second, the definition seeks to clarify
extraterritorial activities or decisions; (2) actions that do not
that agencies need not analyze effects of their proposed
result in final agency actions as set forth in statute; (3)
actions that are beyond their control. Third, CEQ eliminated
judicial or administrative enforcement; (4) certain funding
the requirement that agencies consider the cumulative
assistance where a federal agency does not control the
impacts from the proposed activity and related actions.
funds’ use; (5) nonfederal projects with minimal federal
Finally, the 2020 Rules require an “agency’s analysis of
funding or involvement; and (6) loans, loan guarantees, and
effects to be consistent” with the regulations’ revised
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The Legal Framework of the National Environmental Policy Act
definition of “effects,” which appears to limit the effects
process. Id. A certified EIS is “entitled to a presumption
that an agency may consider. Id. § 1508.1(g)(3).
that the agency considered the submitted alternatives,
information, and analysis . . . in its decision.” Id.
By eliminating references to “direct,” “indirect,” and
“cumulative” impacts, CEQ’s revised definition of “effects”
Environmental Assessments: Unknown Impacts
could alter how agencies consider the climate change
For actions that may have some impacts—but potentially
effects of their proposed actions. Various courts have held
that an agency’s NEPA review should consider the
not significant impacts—agencies must prepare an
“reasonably foreseeable” direct, indirect, and cumulative
environmental assessment (EA). An EA is an initial
analysis of an action’s potential to have significant
effects from the proposed action’s greenhouse gas
environmental effects. While preparing an EA, an agency
emissions. In the 2020 rulemaking, however, CEQ stated
that agencies may characterize “[t]rends determined to be a
must consult with other federal and state agencies with
jurisdiction over a proposal’s impacts. Agencies also
consequence of climate change . . . in the baseline analysis
involve the public in preparing EAs “to the extent
of the affected environment rather than as an effect of the
practicable.”
action.” 85 Fed. Reg. at 43
Id. § 1501.5(e). An EA may lead to a decision
,331.
to complete an EIS or to a finding of no significant impact
Environmental Impact Statements:
(FONSI). The 2020 Rules set presumptive page and time
Significant Impacts
limits for EAs: 75 pages, excluding appendixes, within one
year. Id. §§ 1501.5, 1501.10.
For actions with significant impacts, NEPA requires federal
agencies to prepare, “to the fullest extent possible,” a
Categorical Exclusions: No Significant Impacts
“detailed statement” known as an environmental impact
Under the 1978 regulations, CEQ allowed an agency to
statement (EIS). 42 U.S.C. § 4332. In its EIS, an agency
issue regulations identifying “categorical exclusions”
must assess (1) the environmental impacts of the proposal;
(CEs)—actions that do not individually or cumulatively
(2) unavoidable adverse environmental effects;
have significant effects on the human environment. These
(3) alternatives to the proposed action; (4) the relationship
CEs may be excluded from further NEPA analysis unless
between the short-term uses of the environment and
an agency identifies extraordinary circumstances for a
maintenance of long-term productivity; and (5) any
specific project that would trigger further review. Id.
irretrievable resource commitments involved if the proposal
§ 1501.4. The 2020 Rules extend agencies’ ability to
is implemented. Id. To determine the EIS’s scope, an
address projects without significant impacts. Specifically,
agency must consider (1) connected or similar actions;
these regulations permit an agency to adopt another
(2) “a reasonable number” of alternatives to the proposed
agency’s CE determination if the proposed action is
action (no action, other “reasonable” actions, and mitigation
“substantially the same” as the action that the other agency
measures); and (3) effects. 40 C.F.R. §§ 1501.9(e), 1502.14.
already determined was categorically excluded from NEPA.
An agency must release its draft EIS for comment from
Id. § 1506.3(d).
other agencies and the public. 42 U.S.C. § 4332(2)(C).
Under the 2020 Rules, public comments not submitted
Judicial Review of NEPA Compliance
during the comment period are deemed forfeited and
NEPA does not expressly provide for judicial review. Legal
unexhausted and cannot be raised later in court. 40 C.F.R.
challenges to an agency’s NEPA compliance are subject to
§ 1503.3(b).
federal judicial review under the Administrative Procedure
A final EIS must respond to comments from agencies and
Act. 5 U.S.C. §§ 551 et seq. For more information, see CRS
the public by modifying the proposal, developing
In Focus, National Environmental Policy Act: Judicial
alternatives, or explaining why comments do not merit
Review and Remedies.
substantive replies or changes. Id. §§ 1503.4. The 2020
Rules also stipulate that a final EIS should be “proportional
CEQ Revisions to 2020 Rules
to potential environmental effects and project size,” but no
CEQ has outlined three regulatory actions related to the
more than 150 pages, or 300 pages if unusually complex.
2020 Rules. First, CEQ issued an interim rule that extended
Id. §§ 1502.2(c), 1502.7. Further, an EIS should be
the deadline for agencies to develop or revise procedures
completed within two years unless the lead agency
implementing the 2020 Rules to September 14, 2023. 86
approves a longer time. Id. § 1502.10(b)(2). In some
Fed. Reg. 34,154 (June 29, 2021). CEQ asserted that
circumstances, an agency may also need to create a
extending the deadline will allow federal agencies to avoid
supplemental EIS after preparing (and issuing for public
developing procedures based on the 2020 Rules that may be
comment) a draft or final EIS if the agency makes
repealed or substantially amended. Second, CEQ plans to
“substantial changes” to its initial proposal or learns of
propose a narrow set of changes to, among other things,
“significant new circumstances or information” related to
meet the environmental, climate change, and environmental
environmental concerns. Id. § 1502.9(d).
justice objectives of President Biden’s executive orders
(Phase 1 Rule). Lastly, after finalizing the Phase 1 Rule,
Once an agency reaches a final decision on the action it
CEQ plans to propose broader changes to the 2020 Rules in
wishes to take (i.e., the proposed action or an alternative), it
a Phase 2 rulemaking.
creates a Record of Decision (ROD). Id. § 1505.2. The
ROD is a written statement issued at least 90 days after
Nina M. Hart, Legislative Attorney
publishing a draft EIS or 30 days after issuing a final EIS.
Linda Tsang, Legislative Attorney
The 2020 Rules require the ROD to contain a statement
certifying that the agency considered all alternatives,
IF11549
information, and analyses submitted during the NEPA
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The Legal Framework of the National Environmental Policy Act

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https://crsreports.congress.gov | IF11549 · VERSION 5 · UPDATED