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Tuesday, February 1, 2011

The National Environmental Policy Act (NEPA): Background and Implementation

Linda Luther
Analyst in Environmental Policy

Beginning in the late 1950s and through the 1960s, Congress reacted to increasing public concern about the impact that human activity could have on the environment. A key legislative option to address this concern was the declaration of a national environmental policy. Advocates of this approach argued that without a specific policy, federal agencies were neither able nor inclined to consider the environmental impacts of their actions in fulfilling the agency’s mission. The statute that ultimately addressed this issue was the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. §§ 4321-4347).

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 (EIS).

With an initial absence of regulations specifying implementation procedures and no agency authorized to enforce the law, federal agencies reacted in different ways to NEPA’s requirements. Some had difficulty complying with the law’s EIS requirements. As a result, litigation that served to interpret NEPA’s requirements and enforce agency compliance began almost immediately. In addition to questions of procedure (e.g., how, when, or why an EIS must be prepared), another question was how the environmental policy goals of the act should be implemented or enforced. The courts ultimately decided that NEPA is a procedural statute with twin aims requiring agencies to (1) consider the environmental impacts of their proposed actions and (2) inform the public that they (the agencies) considered environmental concerns in their decision-making process. In that capacity, NEPA has become a primary mechanism for public participation in the federal decisionmaking process.

As it has been implemented, most agencies use NEPA as an “umbrella” statute. As such, NEPA forms a framework to coordinate or demonstrate compliance with any study, review, or consultation required by 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, may be identified within the framework of the NEPA process, but NEPA itself is not the source of the obligation. Theoretically, if the requirement to comply with NEPA were removed, compliance with each applicable law would still be required.

Date of Report: January 10, 2011
Number of Pages: 36
Order Number: RL33152
Price: $29.95

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