Environmental impact statements (EISs) are powerful regulatory tools that force proponents of projects that have significant impacts on the environment to assess those impacts. Although advisory only, they are used in many environmental controversies.
II. NEPA Requirements
III. Federal Agency Roles
IV. EPA’s Role
V. The Public’s Role
As knowledge about the environment has grown, so too has concern for the impacts of major projects and processes. Technology and project scale can greatly increase the impact of large-scale development on the environment. Environmental impact statements are advisory in practice but nonetheless required. It is a process fraught with controversies at most of the major stages. The environmental impact process under the National Environmental Policy Act (NEPA) is one that every major project or process with a significant impact on the environment must undergo. Generally, anyone contesting the process must go through the internal agency process first. Some states and tribes have their own environmental impact statement rules and laws.
Flash points for controversies under the EIS requirements are lack of notice, lack of inclusion, and inadequate stakeholder representation. The actual area of impact, called the study area, can shift during the process. Many of the processes of the EIS are time driven, and there is often inadequate time to assess ecosystem or cumulative impacts. The underlying environmental decision, as in the spotted owl controversy, can lend fuel to the EIS process. In the case of the spotted owl, the fact that logging the habitat of this endangered species was a significant environmental impact triggered the requirement for a full EIS. Environmental impact assessment also brings in controversies of risk assessment generally. However, an increase in environmental impact assessment at all levels is inevitable. Assessment is necessary to measure impacts of new projects and to establish baselines with which to measure changes in the environment. Citizen monitoring is also prodding more environmental assessment. Another common frustration with the federal EIS process is that it is advisory only. The decision maker is free to choose more environmentally harmful alternatives. All these controversies are likely to continue as the range of environmental assessments continue to expand into ecosystem and cumulative approaches.
NEPA was signed into law on January 1, 1970. The act establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment, and it provides a process for implementing these goals within the federal agencies. The act also establishes the Council on Environmental Quality (CEQ). This act is a foundational environmental law. The complete text of the law is available for review at NEPAnet.
Title I of NEPA contains a Declaration of National Environmental Policy that requires the federal government to use all practicable means to create and maintain conditions under which humans and nature can exist in productive harmony. Section 102 requires federal agencies to incorporate environmental considerations in their planning and decision making through a systematic interdisciplinary approach. Specifically, all federal agencies are to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment. These statements are commonly referred to as environmental impact statements (EISs). Section 102 also requires federal agencies to lend appropriate support to initiatives and programs designed to anticipate and prevent a decline in the quality of humans’ world environment. In 1978, the CEQ promulgated regulations under NEPA that are binding on all federal agencies. The regulations address the procedural provisions of NEPA and the administration of the NEPA processes, including preparation of EISs.
The NEPA process is an evaluation of the environmental effects of a federal undertaking including its alternatives. Any type of federal involvement, such as funding or permitting, can trigger NEPA regulations. There are three levels of analysis depending on whether or not an undertaking could significantly affect the environment. These three levels include categorical exclusion determination; preparation of an environmental assessment/finding of no significant impact (EA/FONSI); and preparation of an EIS.
At the first level, an undertaking may be categorically excluded from a detailed environmental analysis if it meets certain criteria that a federal agency has previously determined as indicating no significant environmental impact. A number of agencies have developed lists of actions that are normally categorically excluded from environmental evaluation under their NEPA regulations. The U.S. Army Corp of Engineers, the U.S. Environmental Protection Agency, and the Department of the Interior have lists of categorical exclusions. This is an area of policy controversy. One aspect of these lists is that the cumulative effects of their exclusion are not considered. Another is that some of the categories that were once thought to be insignificant may not be now. Projects having insignificant environmental impacts are not required to perform an EIS.
At the second level of analysis, a federal agency prepares a written environmental assessment (EA) to determine whether or not a federal undertaking would significantly affect the environment. Generally, an EA includes brief discussions of the following: the need for the proposal; alternatives (when there is an unresolved conflict concerning alternative uses of available resources); the environmental impacts of the proposed action and alternatives; and a listing of agencies and persons consulted. It may or may not describe the actual study area. There is no actual requirement for notice to the community. Some communities are environmentally assessed without their knowledge. If the agency finds no significant impact on the environment, then it issues a finding of no significant impact (FONSI). The FONSI may address measures that an agency will take to reduce (mitigate) potentially significant impacts. This is the first notice many communities receive about any evaluation of the impacts. Many communities feel that there are significant environmental issues and, had they known about the EA process, could have directed the agency to them.
If the EA determines that the environmental consequences of a proposed federal undertaking may be significant, an EIS is prepared. Significant environmental impacts can be threats to an endangered species, historic sites, or culturally significant areas. An EIS is a more detailed evaluation of the proposed action and alternatives. The public, other federal agencies, and outside parties may provide input into the preparation of an EIS and then comment on the draft EIS when it is completed.
Interested parties are allowed to submit draft alternatives. The agency calls this scoping. Scoping is when the agency selects the interested parties who can submit an alternative proposal. This is a controversial stage of the process. There may be groups who wanted to participate but were not selected. Often there are communities who did not know about the internal agency scoping decisions. Once interested parties are selected, the alternative selection begins. A controversy can occur about which alternatives are examined. One alternative that is always examined is the no action alternative. The alternatives are compared and contrasted. There may be public hearings and some scientific studies. The agency then produces a draft EIS. This document can be a trove of information because it includes all the alternatives considered. The agency administrator then selects one alternative, and it is published in the final environmental impact statement of the EIS, along with its justification. The final EIS can only be 150 pages in length. The decision maker does not have to prioritize environmental protection over economic considerations. The EIS process seldom stops the decision or project, but it can slow it down and focus the public’s attention on the environmental controversy.
If a federal agency anticipates that an undertaking may significantly impact the environment or if a project is environmentally controversial, a federal agency may choose to prepare an EIS without having to first prepare an EA. After a final EIS is prepared and at the time of its decision, a federal agency will prepare a public record of its decision addressing how the findings of the EIS, including consideration of alternatives, were incorporated into the agency’s decision-making process. An EIS should include discussions of the purpose of and need for the action; alternatives; the affected environment; the environmental consequences of the proposed action; lists of preparers, agencies, organizations, and persons to whom the statement is sent; an index; and an appendix (if any).
Federal Agency Roles
The role of a federal agency in the NEPA process depends on the agency’s expertise and relationship to the proposed undertaking. The agency carrying out the federal action is responsible for complying with the requirements of NEPA. In some cases, more than one federal agency may be involved in an undertaking. In this situation, a lead agency is designated to supervise preparation of the environmental analysis. Federal agencies, together with state, tribal, or local agencies, may act as joint lead agencies. A federal, state, tribal, or local agency having special expertise with respect to an environmental issue or jurisdiction by law may be a cooperating agency in the NEPA process. A cooperating agency has the responsibility to assist the lead agency by participating in the NEPA process at the earliest possible time; by participating in the scoping process; in developing information and preparing environmental analyses including portions of the EIS concerning which the cooperating agency has special expertise; and in making available staff support at the lead agency’s request to enhance the lead agency’s interdisciplinary capabilities. While there are cooperating federal agencies, there is some controversy about intergovernmental relationships with states and municipalities. Where there is a large federal government land presence, as in the western United States, some communities are excluded from important EIS processes.
The Environmental Protection Agency, like other federal agencies, prepares and reviews NEPA documents. However, the EPA has a unique responsibility in the NEPA review process. Under section 309 of the Clean Air Act, EPA is required to review and publicly comment on the environmental impacts of major federal actions including actions that are the subject of EISs. If the EPA determines that the action is environmentally unsatisfactory, it is required by section 309 to refer the matter to the CEQ. Also the EPA carries out the operational duties associated with the administrative aspects of the EIS filing process. The Office of Federal Activities in the EPA has been designated the official recipient of all EISs prepared by federal agencies.
The Public’s Role
The public has an important role in the NEPA process, particularly during scoping, in providing input on what issues should be addressed in an EIS and in commenting on the findings in an agency’s NEPA documents. The public can participate in the NEPA process by attending NEPA-related hearings or public meetings and by submitting comments directly to the lead agency. The lead agency must take into consideration all comments received from the public and other parties on NEPA documents during the comment period.
Public participation can be time-consuming and costly for many stakeholders but especially community members. Receiving actual notice of when they can get involved in a particular EIS is generally a point of contention. Some communities consider the EIS decision already made and their participation a formality. Some EISs use complicated scientific analyses to measure different impacts, and these can be difficult to explain to some citizens. If a particular project is controversial, the agency can find that a significant impact itself, thus triggering the EIS requirement. Demand for community involvement can be part of a particular controversy. There is no public participation in the list of actions categorically excluded from the EIS requirements.
Environmental impact assessment is now an integral part of many environmental decisions. The process forces an assessment and includes the public and interested parties. It can also include human health risk assessments and ecological risk assessments, which can create controversies of their own.
EIS processes are necessary for the development and refinement of environmental policy at all levels. For sustainability purposes these assessments allow us to understand the environment around us. More communities and environmentalists demand them with the expectation of involvement and the hope that they are environmentally meaningful. To the extent these groups become more dissatisfied with both process and product, more controversy will develop.
Robert William Collin
- Dietz, Thomas, and Paul C. Stern, eds., Public Participation in Environmental Assessment and Decision Making. Washington, DC: National Academies Press, 2008.
- Glasson, John, et al., Introduction to Environmental Impact Assessment, 3rd ed. New York: Routledge, 2005.
- Hanna, Kevin, Environmental Impact Assessment: Practice and Participation, 2d ed. New York: Oxford University Press, 2009.