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Monday, January 24, 2011

Implementing the National Environmental Policy Act (NEPA) for Disaster Response, Recovery, and Mitigation Projects

Linda Luther
Analyst in Environmental Policy

In the aftermath of a major disaster, communities may need to rebuild, replace, or possibly even relocate a multitude of structures. When recovery activities take place on such a potentially large scale, compliance with any of a number of local, state, and federal laws or regulations may apply. For example, when older buildings must be repaired or demolished, provisions of the National Historic Preservation Act (NHPA) may need to be considered. If rebuilding will take place in a floodplain, provisions of Executive Order 11988 on Floodplain Management may apply.

When federal agencies make decisions, such as funding applicant-proposed actions, the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. § 4321 et seq.) applies. For example, when federal funding is provided for disaster-related activities, applicants for those funds may be required to assess the environmental impacts of their proposed action. As commonly implemented, NEPA’s environmental review requirements are used as a vehicle to identify any other environmental requirements that may apply to a project as well. This use of NEPA as an “umbrella” statute can lead to confusion. For example, before an applicant can commit or expend funds under the Department of Housing and Urban Development’s (HUD’s) Community Development Block Grant (CDBG) program, the applicant must complete an environmental review of the project. A required element of that review is the applicant’s certification that compliance criteria applicable to historic preservation, floodplain management, endangered species, air quality, and farmland protection have been considered. This review is required not only to meet NEPA obligations, but also to ensure that the project being funded does not violate applicable environmental law. From the applicant’s perspective, this may blur the distinction between what is required under NEPA and what is required under separate compliance requirements identified within the context of the NEPA process.

For many federal actions undertaken in response to emergencies or major disasters, NEPA’s environmental review requirements are exempted under provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act). (The Stafford Act does not, however, exempt such projects from other applicable environmental requirements.) In the past, some Members of Congress have been interested in the NEPA process as it applies to disasterrelated projects. This interest has been driven, in part, by federal grant applicants who have been confused about both their role in the NEPA process and what the law requires.

To address issues associated with the NEPA process, this report discusses NEPA as it applies to projects for which federal funding to recover from or prepare for a disaster has been requested by local, tribal, or state grant applicants. Specifically, the report provides an overview of the NEPA process as it applies to such projects, identifies the types of projects (categorized by federal funding source) likely to require environmental review, and delineates the types of projects for which no or minimal environmental review is required (i.e., those for which statutory or regulatory exemptions apply) and those likely to require more in-depth review.

Date of Report: January 13, 2011
Number of Pages: 15
Order Number: RL34650
Price: $29.95

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