Five Little-Known Facts About the National Environmental Policy Act
Thomas Mullen
December 31, 2015
The National Environmental Policy Act (NEPA) is the granddaddy of America’s environmental policy. Signed into law in 1970, it took on and tamed a “build first” culture where huge federal projects were developed with little coordination or public involvement, and with few considerations aside from the resulting economic benefit.
Like many grandpas cut from the cloth of the Vietnam Era, NEPA is still jutting out its cast-iron chin today. It’s far from perfect, but it has good intentions and carries a simple demand that you know how to handle yourself when you cross paths with it. If you’re a lawyer, consultant or government specialist who deals with NEPA on a regular basis, you may think you know every wrinkle in its craggy face and starched-white legal precedent in its closet. But NEPA’s got a few surprises hidden under the surface. So please join us as SmartComment cracks open the old man’s attic trunk and shares some surprises about this enigmatic figure, who almost single-handedly transformed our country’s environmental culture — and is pretty much the reason we were able to start a company that makes public comment software in the first place.
NEPA Is Really, Really Short
For a document that’s been called the “Magna Carta” of environmental legislation, the actual NEPA document runs a mere five-and-a-half pages – or roughly the length of that essay you wrote in high school citing the philosophical relevance of Journey lyrics. It basically did three things: declared itself as the new national environmental policy, created a Council on Environmental Quality (CEQ), and required that an environmental impact statement (EIS) be prepared for any federal action having a significant impact on the environment. Compared to other complicated legislation, that may not sound like much. But don’t be fooled. When it comes to big ideas, shorter is always better. Just think about other dynamic, game-changing forces that just happened to come wrapped in small packages. The Ten Commandments. That freaky little amulet they dug up at the beginning of The Exorcist. Spud Webb. A five-page bill is the government version of yelling. Like when your dad catches you and your brother playing lightsabers with a Butane torch and your mom’s longest bread knife. He’ll sort out the details later. But right now, he just needs to let you know he’s in charge and that this situation is gonna STOP NOW. Of course, unlike my dad in the preceding scenario…
NEPA Was Considered Toothless – At First
Created with little media fanfare or participation from the public, many thought NEPA was mostly symbolic when it was passed. After all, the law only said that federal agencies should consider the environmental impacts of their actions. It didn’t say they actually had to burn any calories doing so. And if you think that sounds a little soft for groundbreaking environmental legislation, don’t worry. An early court case cleared things up for everyone. In 1970, an environmental group called the Calvert Cliffs Coordinating Committee sued the U.S. Atomic Energy Commission (predecessor of the Department of Energy) over the construction of a nuclear plant in rural Maryland. The CCCC claimed the energy commission was violating NEPA by not having the environmental impacts of the plant assessed by an independent third party. The U.S. Court of Appeals agreed, mandating that all federal agencies must consider NEPA “to the fullest extent possible” at every important stage in the decision-making process. In other words, NEPA wasn’t just more paperwork for a federal agency to tackle internally. It now carried actual duties and obligations such as independent monitoring, scoping, public engagement, and all those other steps we take for granted in a modern-day EIS.
NEPA Created Public Comment As We Know It
It’s not an exaggeration to say that NEPA is the origin story of the modern-day public comment period. Sure, citizens have been making public comments in front of governing bodies since the “I Am Spartacus” days. But NEPA created an entirely new class of public comment — one that is solicited by the proposing agency, recorded, responded to, and prioritized as a primary consideration in rendering a final decision. Even for projects that don’t require an environmental impact statement, agencies, companies and localities alike have recognized the value of open citizen participation in the planning process and routinely use NEPA-style public comment periods to maximize community benefits and become aware of potential pitfalls. In this way, NEPA has had an impact far beyond simply mitigating negative impacts on the environment. It has literally changed the nature of the relationship between citizens and government, creating a culture where public input is not just a legal requirement, but widely acknowledged as an unquestioned best practice. So, you know, not bad for a five-pager.
Fewer EIS Documents, But Closer Scrutiny
The number of environmental impact statements filed by federal agencies has fallen drastically since NEPA’s inception — from 5,834 in 1970-72 to 557 in 2007. This drop is most likely due to the shrinking number of infrastructure projects (a significant portion of NEPA cases) and to the impact of a 1978 executive order from President Jimmy Carter clarifying that only projects with significant potential impacts had to undergo a full EIS. Less impactful projects could be designated for a Categorical Exclusion from a full EIS, while others could undergo a less rigorous Environmental Assessment (EA). But while the number of EIS documents is down, their scope — and the specialized knowledge it takes to navigate them – has ballooned. When NEPA was conceived, EIS documents were expected to be around 75 pages long. They now routinely run into the hundreds, and even thousands, of pages, requiring layers of scoping, teams of staff specialists and outside consultants, as well as intensive public comment management. With a smaller pool of EIS documents and unprecedented public demands for transparency, it’s more crucial than ever that agencies undergoing an EIS rely on innovation to meet the exhaustive demands of the process and ensure compliance with its ever-increasing standards.
NEPA: An American Environmental Franchise
Like any blockbuster that moves the cultural needle, NEPA was bound to spawn a spin-off or two. Sure enough, it wasn’t long before dozens of states began creating their own environmental laws – known as SEPAs – that mirrored NEPA and ensured states had a say in the process as well. It’s a pretty understandable reaction. After all, if the federal government was gonna play environmental referee in their backyard — so the thinking at the state level went — they were darn well going to join the officiating crew too. These SEPAs either added an additional layer to the NEPA process or took over when a project didn’t rise to the conditions needed to trigger NEPA. Thirty-two states now have laws that more or less replicate NEPA — from the California Environmental Quality Act (CEQA) to the Massachusetts Environmental Policy Act (MEPA) to New York’s State Environmental Quality Review Act (SEQRA). In addition, more than 160 countries have enacted their own NEPA programs, making NEPA the greatest environmental export in our country’s history. Take that, Star Wars!