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NEPA Effectiveness After 25 Years
" NEPA is a success - it has made
agencies take a hard look at the
potential environmental consequences
of their actions, and it has brought
the public into the agency
decision-making process like no
other statute. In a piece of
legislation barely three pages long,
NEPA gave both a voice to the new
national consensus to protect and
improve the environment, and
substance to the determination
articulated by many to work together
to achieve that goal. To that end,
NEPA charges CEQ and all federal
agencies with achieving "productive
harmony" among our environmental,
economic, and social objectives. NEPA directs federal agencies to
open their doors, bring the public
in, and offer genuine opportunities
for participation and collaboration
in decision-making.
Despite these successes, however,
NEPA's implementation at times has
fallen short of its goals. For
example, this NEPA Effectiveness
Study finds that agencies may
sometimes confuse the purpose of
NEPA. Some act as if the detailed
statement called for in the statute
is an end in itself, rather than a
tool to enhance and improve
decision-making. As a consequence,
the exercise can be one of producing
a document to no specific end. But
NEPA is supposed to be about good
decision-making - not endless
documentation.
The Study finds that agencies
sometimes engage in consultation
only after a decision has - for all
practical purposes - been made. In
such instances, other agencies and
the public at large believe that
their concerns have not been heard.
As a result, they may find
themselves opposing even worthy
proposed actions. This may in turn
lead to agencies seeking
"litigation-proof" documents,
increasing costs and time but not
necessarily quality. In such cases,
potential cost savings are also lost
because a full range of alternatives
has not adequately been examined.
Other matters of concern to
participants in the Study were the
length of NEPA processes, the
extensive detail of NEPA analyses,
and the sometimes confusing overlay
of other laws and regulations."
Modernizing NEPA Implementation
More recently (2003) the Council on
Environmental Quality (CEQ) issued
another report entitled "The
NEPA Task Force Report to the Council on
Environmental Quality: Modernizing NEPA
Implementation" that gives yet
another perspective on the effectiveness
of this act. A number of key
concepts came out of this report, many
of which were reflected in the earlier
1997 NEPA effectiveness report, to
include the following:
Technology and Information
Management and Security
Effective and efficient NEPA
implementation requires
information-rich communication
among Federal, State, and local
governments, tribes, private
industry, citizens, and
academia. Agency environmental
planners must identify
significant environmental
issues, obtain and analyze
relevant data, and convey
quality, timely information to
the decisionmakers and the
public. Involving the public and
other stakeholders in the NEPA
analyses and the development of
NEPA documents increases the
value of citizens’ experience
and produces better results.
Publishing and distributing NEPA
documents is one aspect of
effectively and efficiently
conveying needed information.
To use information technology to
address information management
and technology concerns related
to the NEPA process, and to
enhance the effectiveness and
efficiency of the NEPA process,
CEQ should:
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Promote the development and
use, and coordinate sharing
of NEPA information systems
by sponsoring meetings,
conferences, and workshops.
Ensure that NEPAnet
accommodates and responds to
developing information
technologies.
Develop guidance to clarify
the appropriate role of
communication and
information dissemination
technologies during the NEPA
process to enhance public
involvement techniques.
Establish a NEPA technical
working group to coordinate
with interagency groups to:
Ensure that NEPA-process
information requirements
are addressed when
protocols and standards
about data, information
management, modeling
tools, and information
security are developed;
Increase awareness of
NEPA-process information
technology developments
throughout the NEPA
community; and
Facilitate
identification and use
of information resources
developed according to
established standards.
Lead a review by the
agencies of their quality
control and assurance
standards for NEPA analyses
and documentation to ensure
conformance with CEQ
regulatory requirements and
Federal requirements such as
Section 515 of the
Information Quality Act.
Contact agencies and
organizations that have
experience working with
sensitive information to
establish a work group to
develop and promote
consistent policies for
sensitive information in the
NEPA process.
Federal and Intergovernmental
Collaboration
Collaboration with stakeholders
in the NEPA process is important
to help ensure that
decisionmakers have the
environmental information they
need to efficiently make
informed and timely decisions.
The task force focused on
whether efforts to collaborate
on projects subject to NEPA were
successful and, if so, what
contributed to their success.
Our goal was to recommend
practical steps for CEQ either
to enhance collaborative
processes in support of better
NEPA analyses or remove barriers
hindering such collaboration. We
focused our inquiry on the
characteristics of successful
collaboration, collaboration
barriers, and how training might
improve collaborative efforts.
To continue to build better
collaborative relationships
among agencies and between
agencies and the public, CEQ
should form a Federal Advisory
Committee of diverse
individuals, with a variety of
experiences in the NEPA process,
which can contribute to the
development of collaborative
guidance and training. The
committee should advise CEQ on:
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Focusing
on better collaboration
among agencies by
identifying, developing, and
sharing methods of engaging
tribal, State, and local
partners in training
designed to educate them
about the principles of NEPA,
partner agencies’ missions,
communication skills, and
public involvement skills.
Developing guidance
addressing the components of
successful collaborative
agreements and providing
templates for memoranda of
understanding applicable to
various situations and
stages in the NEPA process.
The guidance should provide
the foundation for
successful agreements and
provide the templates as
examples, but it would not
dictate the exact
construction of the
agreements. The templates
should include sample
language for dispute
resolution and termination
clauses.
Examining lessons learned by
others through CEQ-sponsored
meetings, workshops, and
training.
Developing training that
uses traditional and
nonclassroom methods, such
as videos or Web-based
training to enhance
agencies’ work with the
public. Some topics include:
The
requirements of NEPA and
explanations of the
different NEPA
processes, including
categorical exclusions,
environmental
assessments (EAs),
environmental impact
statements (EISs), and
programmatic NEPA
analyses;
How to become involved
early and effectively
contribute to the NEPA
process;
Individual and generic
agency needs and
requirements, including
what agencies look for
when soliciting
comments, and effective
ways to provide comment;
and
How to identify and
determine if and how
barriers to
collaboration can be
eliminated.
Developing a "Citizen’s
Guide to NEPA" to explain
basic NEPA requirements,
dispel common
misinterpretations, and
provide helpful tips about
how to participate in the
NEPA process. The
publication should be posted
to the Web and traditionally
published.
CEQ should also periodically
sponsor forums designed to
address topics such as creating
documents that satisfy both
Federal and State NEPA
requirements and how agencies
can better integrate the needs
of regulatory agencies into
their NEPA processes.
Programmatic Analyses and
Tiering
Programmatic NEPA analyses and
documents are valuable
decisionmaking tools. Some
agencies use programmatic
analyses to evaluate cumulative
effects effectively and to
formulate mitigation efforts
comprehensively, while others
struggle with how best to use
this analytical tool. Still
other agencies use programmatic
analyses to address mitigation
parameters at the broad
landscape, ecosystem or regional
level, thereby reducing the need
to readdress these measures at
the site-specific level.
In discussions with the task
force, many issues were raised
by the public and Federal
agencies concerning programmatic
analyses and tiering. The task
force focused on five areas of
interest: types of programmatic
documents, scope of programmatic
analyses, content of
programmatic documents,
longevity of programmatic
documents, and links to adaptive
management and environmental
management systems (EMS).
To promote consistent, clear,
cost-effective programmatic NEPA
analyses, documents, and tiering
that meet agency and stakeholder
needs, the task force recommends
that CEQ provide guidance to:
Include a section in the
first tier document that
explains the relationship
between the programmatic and
future tiered analyses and
documents, and describes how
stakeholders will be
involved.
Emphasize that programmatic
documents should explain
where and when deferred
issues that were raised by
the public or regulatory
agencies will be addressed,
and describe the proposed
temporal and spatial scales
that will be used when
analyzing those issues.
Develop criteria for
agencies to use when
evaluating whether a
programmatic document has
become outdated, and
articulate a general life
expectancy for programmatic
documents.
To assist it in developing this
guidance, CEQ could form a
Federal Advisory Committee to
provide advice or form a CEQ
chartered work group.
The task force also recommends
that CEQ convene a Federal
Advisory Committee to aid in
evaluating and improving
understanding of the uses and
purposes of programmatic NEPA
analyses and documents by
providing advice on:
Examining whether
programmatic NEPA analyses
and documents for the
different uses have similar
scope, range of
alternatives, and
specificity of environmental
analysis.
Evaluating the depth and
breadth of the analyses and
documentation associated
with the different uses of
programmatic documents.
Proposing guidance or
regulatory changes to
clearly define the uses and
appropriate scope, range of
issues, depth of analyses,
and the level of description
required in NEPA analyses
and documents.
Adaptive Management and
Monitoring
The term "adaptive management"
has been used since the late
1970s to describe certain
ecosystem management approaches.
Adaptive management includes
post-decision responses to
conditions, circumstances, or
acquired information related to
the observed impacts of the
implemented activity. Although
not all Federal actions lend
themselves to incorporating
adaptive management into the
NEPA process, nor do they
require the monitoring and
evaluation necessary for such an
approach, the task force focused
on integrating the adaptive
management model into the NEPA
process to provide agencies with
another tool to improve their
NEPA implementation.
The task force anticipated that
CEQ’s 1997 NEPA effectiveness
study, "The National
Environmental Policy Act: A
Study of its Effectiveness After
Twenty-five Years," had fostered
an understanding of the value of
integrating adaptive management
into the NEPA process. However,
we discovered that fully
incorporating adaptive
management, to include
monitoring and taking adaptive
measures, into the NEPA process
was still a relatively new
concept for many NEPA
practitioners.
The task force recommends that
CEQ convene an adaptive
management work group to
consider revising existing
regulations or establishing new
guidance to facilitate agencies’
ability to exercise the option
of incorporating adaptive
management into their NEPA
process. The working group
should consider whether it is
appropriate and necessary to:
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Describe how adaptive
management measures, or the
range of such measures, can
be included in alternatives,
and how to use adaptive
management when the
alternatives involve
uncertainty or variability
affecting the ability to
predict the significance of
impacts.
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Determine when adaptive
management actions are
reasonably foreseeable and
how they are to be
considered in cumulative
effects analyses, including
when the impacts should be
addressed incrementally or
collectively and how to
establish the boundaries of
the analysis when a series
of adaptive management
responses is likely.
If the work group determines
that new guidance or regulatory
revisions are needed, the work
group should assist CEQ in
preparing and issuing such
guidance or revisions. The work
group should also gather all
NEPA guidance on adaptive
management for inclusion in a
CEQ reference handbook.
We further recommend that the
work group initiate a pilot
study to identify the types of
actions best suited for
integrating adaptive management
into the NEPA process. The pilot
program should include several
diverse actions, including those
that could be integrated into an
existing EMS, involve a high
degree of uncertainty, or
contain highly variable
potential impacts. Actions
associated with enforceable
mitigation (e.g., conditions of
a grant, permit, license, or
approval) or when there might be
duplicate Federal, State, or
local environmental reviews
should also be included in the
pilot program. The study should
identify the appropriate
assessment strategies and
documentation for incorporating
adaptive management into the
NEPA process and identify issues
requiring CEQ guidance.
Categorical Exclusions
The task force focused its
efforts on documenting the basis
and process for establishing
categorical exclusions, the
categorical exclusion approval
process, and documenting the use
of categorical exclusions.
To promote consistent
categorical exclusion
development and use, the task
force recommends CEQ should
expeditiously issue clarifying
guidance to:
Suggest methods and
information, such as
post-implementation
monitoring and effects
analyses and studies,
categorical exclusion
benchmarking studies, and
statements of agency
professionals, which
agencies can use to
determine whether a category
of activity does not
individually or cumulatively
have a significant effect on
the human environment.
Encourage agencies to
develop categorical
exclusions, where
appropriate, based on
broadly defined criteria
that will provide the agency
with sufficient flexibility,
and encourage the agency to
offer examples of frequently
conducted activities that
would usually fall within
the categories.
Emphasize that agencies
should periodically review
and update their categorical
exclusions, and their
procedures for adding,
revising, or deleting
categorical exclusions. The
guidance should also
encourage agencies to
establish a mechanism to
track suggestions from their
field offices for developing
or revising their
categorical exclusions. The
guidance should emphasize
the benefits of such
information when
establishing categorical
exclusions.
Clarify the CEQ review
process and provide a
renewed commitment to
meeting the CEQ 30-day
period for reviewing
proposed categorical
exclusions.
Encourage agencies to expand
public outreach beyond the
Federal Register notice and
comment period to facilitate
more public involvement in
changing their categorical
exclusions and to scale that
outreach to the extent of
the proposed changes to the
categorical exclusions.
Environmental Assessments
The task force considered the
appropriate use and structure of
EAs, and identified four areas
of interest: EA and FONSI use,
mitigated EAs and FONSIs, EA
alternatives analysis, and EA
public involvement.
To consider the appropriate use
and structure of EA documents
that meet agency and stakeholder
needs, new CEQ guidance is
needed to:
Appropriate analysis of
alternatives, including
the no action
alternative;
When mitigation measures
must be considered;
Appropriate public
involvement; and
Suitable use of an EA
standardized analysis
form.
Address what should be
included in an EA and FONSI
to demonstrate that agencies
have comprehensively
considered the potential
environmental consequences
of the proposed action
before taking the action
(i.e., taken a "hard look").
Emphasize that EAs and
FONSIs should focus on
issues or resources that
might be significantly
affected or are a public
concern. Specifically, the
guidance should:
Emphasize that agencies
should address proposed
alternative effects and
provide sufficient
evidence and analysis
about whether to prepare
an EIS;
Emphasize that agencies
should provide and
explain effects
determinations for each
issue of interest to the
public and of potential
significance;
State that following the
CEQ EIS format to
prepare an EA is
unnecessary even though
the issues might be
similar to those
addressed in an EIS;
Clarify that the impact
discussion requirements
within an EA and FONSI
should be proportional
to their significance
and level of public
concern;
Support and identify the
methods to incorporate
documents by reference;
Recommend that an EA
should be attached to a
FONSI or incorporated by
reference; and
Emphasize that agencies
must ensure the
professional integrity
and high quality of the
environmental
information within EAs.
Provide an easily understood
and applied definition of
mitigated FONSI, and clarify
that a mitigated FONSI is
approved based on the
mitigation measures and
therefore an EIS is not
required (i.e., the FONSI
would not be appropriate
without the mitigation
measures). Specifically, the
guidance should:
Address mitigated FONSI
requirements, including
whether post-project
monitoring and
enforcement are
required;
Describe when a
monitoring and
enforcement program
should be adopted and
the factors that should
be considered in this
determination; and
Discuss how mitigation
will be conducted and
enforced including the
length of the mitigation
period, how success will
be measured, and when
alternative monitoring
and adaptive management
approaches are
acceptable.
Address the ability of a
FONSI to serve as a legally
binding mechanism to enforce
mitigation particularly when
mitigation measures must be
considered and adopted
(e.g., for any project
impacts, only when
significant adverse impacts
exist, for an entire
project, only where
feasible).
Discuss how to adequately
incorporate the EA analysis
into FONSIs.
Address unresolved conflicts
concerning alternative uses
of available resources and
call upon agencies to
clarify their rationale for
presenting alternatives
within an EA. Specifically,
the guidance should:
Define the meaning of
"unresolved conflict
concerning the
alternative uses of
available resources";
Identify the core
elements of an EA when
unresolved conflicts
concerning alternative
uses of available
resources are either
present or not;
Clarify that
alternatives must be
evaluated and documented
within the EA when
unresolved conflicts
concerning alternative
uses of available
resources exist; and
Specify that each EA
should contain a
discussion of unresolved
conflicts concerning
alternative uses of
available resources when
alternatives beyond the
preferred and no-action
alternatives are being
considered.
Support documenting
eliminated alternatives in a
separate section at the
beginning of EAs, and
identify criteria that
agencies can apply to
eliminate alternatives
including cost, logistics,
technology, and greater
adverse environmental
effects.
Clarify that all agencies
can address the no action
alternative by contrasting
the current condition and
future condition in the
absence of the proposed
action, and clarify whether
this approach can be used
when there are unresolved
conflicts concerning
alternative uses of
available resources.
Clarify and highlight the
definition of the no action
alternative to foster
consistent application.
Explain that public
involvement requirements in
an EA should be commensurate
with project scale and
complexity, required
mitigation, and public
interest. Specifically, the
guidance should:
Reemphasize that public
availability of EAs and
FONSIs is required;
Emphasize and clarify
special cases where a
FONSI must be available
for public review for 30
days;
Specify the public
involvement requirements
for EAs that either do
or do not have a
remaining unresolved
conflict in alternative
uses of available
resources and/or that
have been mitigated
below the threshold of
significance that would
usually require an EIS;
and
Facilitate public
involvement in EAs by
encouraging agencies to
electronically establish
and maintain NEPA
information and
documents, provide
information via agency
Websites, and develop
and maintain links to
other agencies’ NEPA
Websites where ongoing
and proposed NEPA work
would be advertised. CEQ
should provide links to
these sites on its
NEPAnet Website."
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