The National Environmental Policy Act (NEPA): Summary, Impact, Current Status

The National Environmental Policy Act (NEPA) is widely considered to be the cornerstone of federal environmental law in the United States. Passed into law under the Nixon administration in January of 1970 after achieving a large bipartisan majority in Congress a month earlier, NEPA guarantees that the public will be notified when the government plans to undertake any infrastructure project that can affect their communities and environments. It protects the health, livelihoods, and ecosystems surrounding American citizens by giving locals the opportunity to learn about and give their opinions on the project before it is approved.

Also known as “the people’s environmental law,” NEPA stops a government agency from acting on its own or on behalf of an industry without considering the viewpoints of citizens. At its core, it forces those federal agencies to slow down and consider the environmental and social impacts of their decisions. 

Once a government agency proposes a project (a new highway, for example) they are required to allow the public to weigh in, study those opinions, and then give options or alternatives that will benefit everyone equally. Under NEPA, the government agency must disclose what impacts that the project will have on the environment (air, water quality, wildlife species, etc.) but also on factors like the local economy, cultural resources.

The “Freeway Revolts,” a movement that spanned multiple decades in an effort to compel federal agencies to consider the impacts that their development projects have on local communities and the environment, helped encourage NEPA. For example, in the summer of 1969 right before NEPA was passed by Congress, a neighborhood in Washington, D.C., was condemned to make room for a proposed freeway. The community’s persistent protests actually forced the government to cancel construction plans and helped inspire the law’s formation.

Riding on the heels of the modern green movement, NEPA also helped pave the way for even more historic progress towards environmental awareness in government, including the Environmental Protection Agency (EPA), the Clean Air Act of 1970, and the first Earth Day on April 22, 1970. Just a few years later, Congress also passed the Clean Water Act of 1972 and the Endangered Species Act of 1973.

Since the passage of NEPA, countries worldwide have adopted similar laws to allow their public to weigh issues and have a voice on federal projects. Organizations like the Partnership Project’s Protect NEPA campaign are specifically dedicated to advancing, defending, and educating the public about the law by working with a coalition of the country’s largest environmental and civil rights advocacy groups.

Summary of the Law

When President Nixon signed NEPA in 1970, it meant that federal agencies were required, by law, to assess the environmental and social effects of actions and projects prior to making decisions. Proposed federal activities could include anything from new airports and military complexes to highways and parkland purchases, as well as any other large infrastructure project.

More specifically, the act created a national policy to:

"use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. 4331(a).

The law goes on to require federal agencies to prepare detailed statements on:

"(1) the environmental impact of the proposed action; (2) any adverse effects that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action.” 42 U.S.C. 4332(2)(C).

Categorical Exclusion Environmental Assessment

In cases when a federal agency wants to implement an action or project that doesn’t usually have a significant effect on the human environment, it may become “categorically excluded.” This could include a project like the reconstruction of a network of hiking trails in a national park, for example. The exclusion parameters are based on the past experiences of an agency, typically when the proposal is similar to another project they’ve provided an environmental assessment for in the past and found no significant threats to the public environment. Agencies develop specific NEPA implementing procedures just for this reason, which they can revise as needed.

Environmental Impact Statement

NEPA was the first environmental policy in United States history to require the government to conduct a dedicated study on the impact an action or project will have on the natural environment. These come in the form of an Environmental Impact Statement (EIS), used to tell the public what exactly the agency wants to develop and establish a period of time when locals can comment and offer alternatives. The agency is then required by law to consider these comments.

First, the agency publishes a Notice of Intent to the Federal Register, informing the public of an upcoming environmental analysis and giving them ways to become involved in the preparation. The notice is also important because it begins the scoping process when the agency and the public can collaborate. Second, an EIS draft is published for public review and made available for comments for a minimum of 45 days. After the agency has considered all comments and conducted any further analysis resulting from comments, a final EIS is published to provide responses to the most substantive concerns.

A minimum wait period of 30 days is also required before an agency makes a final decision on the project. If there are any substantial changes to the proposed action relevant to environmental concerns present in the final decision, or if there are any new circumstances or newly discovered information relevant to environmental concerns, NEPA requires the agency to publish a supplemental EIS in the form of a draft or final EIS.

Council on Environmental Quality (CEQ) 

Part of NEPA establishes a Council on Environmental Quality (CEQ) within the office of the president to make sure that federal agencies are meeting their obligations under the law. The council oversees all NEPA implementation, offering guidance and interpreting regulations to federal agencies, while reviewing and approving procedures. The CEQ is also there to resolve any disputes between agencies and members of the public or other government entities.

Aside from overseeing and implementing NEPA, the CEQ also advises the president on sustainability, environmental justice, public lands, wildlife conservation, and more. The idea is to take the expertise of the CEQ and use it to develop and recommend policies so that the president can meet the country’s goals for environmental quality.

Impact and Current Status

The Trump Administration, which openly criticized NEPA’s environmental review process for delaying large infrastructure projects, made significant changes to NEPA in July 2020. The changes marked the first rewrites to the law in over 40 years. The newly implemented regulations, which became effective on September 14, 2020, reduce the types of projects required to submit evaluations under NEPA, shorten the amount of time for the environmental review process itself, and shorten the physical length of reviews.

The new regulations faced immediate backlash from environmental groups, who argued that the changes to the historic law put limitations on the ability of local communities to have a say in infrastructure projects that would affect them directly. What’s more, the decision would disproportionately affect low income and minority communities, many of whom live in areas with the highest rates of air pollution.

Under Trump’s revisions, there would now be a 75-page limit to federal environmental assessments, a 150-300-page limit to environmental impact statements, and a two-year required completion date to any EIS regardless of the project’s complexity. Perhaps most importantly, these regulations also limit opportunities for public input by limiting the scope of comments. For example, the regulations suggest that comments cite specific text in the first drafts of an EIS and put a 45-day limit on commenting periods rather than a 45 day minimum. Essentially, the new rules would decrease the number of infrastructure projects that will be legally required to be subject to NEPA review.

When President Biden took office in 2021, he almost immediately directed the CEQ to review, revise, and update actions taken during the Trump presidency. He also revoked Executive Order 13807, which imposed the two-year limit to environmental impact statements, and revoked Executive Order 13783, which rolled back many environmental protections in order to streamline fossil fuel development. Additionally, on January 27, 2021, President Biden signed Executive Order 14008, instructing the CEQ and the Office of Management and Budget to take steps “to ensure that Federal infrastructure investment reduces climate pollution, and to require that Federal permitting decisions consider the effects of greenhouse gas emissions and climate change.”