Origins and development27developments.The reader is referred to Anderson et al. (1984),Bear (1990), Orloff(1980)andtheannual reportsoftheCEQforfurtherinformation.LegislativehistoryNEPA is in many ways a fluke, strengthened by what should have been amendmentsweakening it, and interpreted by the courts to have powers that were not originallyintended. The legislative history of NEPA is interesting not only in itself but also becauseit explains many of the anomalies of its operation and touches on some of the majorissues involved in designing an EIA system. Several proposals to establish a nationalenvironmentalpolicywerediscussedintheusSenateandHouse of Representativesinthe early 1960s.These proposals all included some form of unified environmental policyand theestablishment ofahigh-levelcommitteetofoster it.InFebruary1969,BillS1075was introduced inthe Senate;it proposeda programmeof federally funded ecologicalresearchandtheestablishment ofaCouncilonEnvironmental Quality.AsimilarBillHR6750,introduced intheHouseof Representatives,proposed theformationofaCEQand a brief statement on national environmental policy.Subsequent discussions in bothchambersofCongressfocusedonseveral points:.the need for a declaration of national environmental policy (nowTitleIof NEPA);.aproposed statementthat"eachperson has afundamentaland inalienablerighttoahealthfulenvironment"(which would putenvironmental health onaparwith,say,freespeech).This was later weakened to the statement in S101(c) that"each person shouldenjoy a healthful environment";·action-forcing provisions similar to those then being proposed for the WaterQualityImprovementAct,whichwouldrequirefederalofficialstoprepareadetailed statement concerning theprobable environmental impacts of anymajoraction;this wasto evolve intoNEPA'SS102(2)(C)which requiresEIA.Theinitial wording of the Bill had required a"finding",which would have beensubject to review by those responsible for environmental protection, rather than a"detailed statement" subject to inter-agency review. The Senate had intended toweaken theBill by requiring only a detailed statement.Instead,the"detailedassessment"becamethesubjectofexternal reviewandchallenge;thepublicavailabilityofthedetailed statements becameamajorforce shapingthelaw'simplementation in its early years.NEPA became operational on1January1970.Table 2.1 summariszes its main points.AninterpretationofNEPANEPA is a generally worded law that required substantial early interpretation. The CEQ,which was set upbyNEPA,prepared guidelinesto assistin the Act's interpretation.However, much of the strength of NEPA came from early court rulings.NEPAwasimmediately seen by environmental activists as a significant vehicle for preventingenvironmental harm,and theearly1970ssawa series of influential lawsuitsand courtdecisions based on it. These lawsuits were of three broad types, as described by Orloff(1980):
developments. The reader is referred to Anderson et al. (1984), Bear (1990), Orloff (1980) and the annual reports of the CEQ for further information. Legislative history NEPA is in many ways a fluke, strengthened by what should have been amendments weakening it, and interpreted by the courts to have powers that were not originally intended. The legislative history of NEPA is interesting not only in itself but also because it explains many of the anomalies of its operation and touches on some of the major issues involved in designing an EIA system. Several proposals to establish a national environmental policy were discussed in the us Senate and House of Representatives in the early 1960s. These proposals all included some form of unified environmental policy and the establishment of a high-level committee to foster it. In February 1969, Bill S1075 was introduced in the Senate; it proposed a programme of federally funded ecological research and the establishment of a Council on Environmental Quality. A similar Bill, HR6750, introduced in the House of Representatives, proposed the formation of a CEQ and a brief statement on national environmental policy. Subsequent discussions in both chambers of Congress focused on several points: ● the need for a declaration of national environmental policy (now Title I of NEPA); ● a proposed statement that “each person has a fundamental and inalienable right to a healthful environment” (which would put environmental health on a par with, say, free speech). This was later weakened to the statement in §101(c) that “each person should enjoy a healthful environment”; ● action-forcing provisions similar to those then being proposed for the Water Quality Improvement Act, which would require federal officials to prepare a detailed statement concerning the probable environmental impacts of any major action; this was to evolve into NEPA’S §102 (2)(C) which requires EIA. The initial wording of the Bill had required a “finding”, which would have been subject to review by those responsible for environmental protection, rather than a “detailed statement” subject to inter-agency review. The Senate had intended to weaken the Bill by requiring only a detailed statement. Instead, the “detailed assessment” became the subject of external review and challenge; the public availability of the detailed statements became a major force shaping the law’s implementation in its early years. NEPA became operational on 1 January 1970. Table 2.1 summariszes its main points. An interpretation of NEPA NEPA is a generally worded law that required substantial early interpretation. The CEQ, which was set up by NEPA, prepared guidelines to assist in the Act’s interpretation. However, much of the strength of NEPA came from early court rulings. NEPA was immediately seen by environmental activists as a significant vehicle for preventing environmental harm, and the early 1970s saw a series of influential lawsuits and court decisions based on it. These lawsuits were of three broad types, as described by Orloff (1980): Origins and development 27
28Introductiontoenvironmental impactassessmentTable2.1Mainpoints of NEPA.NEPA consists of two titles.Title Iestablishes a national policy on the protection and restoration ofenvironmental quality. Title II sets up a three-member Council on Environmental Quality (CEQ) toreview environmental programmes and progress, and to advise the President on these matters. Italso requires the President to submit an annual "Environmental Quality Report" to Congress. Theprovisions of Title I are the main determinants of EIA in the USA, and they are summarized here.Section 10l contains requirements of a substantive nature. It states that the Federal Government hasa continuing responsibility to"create and maintain conditions under which man and nature canexist in productive harmony,and fulfil the social, economic and other requirements of present andfuture generations of Americans". As such the government is to use all practicable means,"consistentwith otheressential considerationsofnational policy",tominimizeadverseenvironmental impact and to preserve and enhance the environment through federal plans andprogrammes. Finally,"each person should enjoy a healthful environment",and citizens have aresponsibility to preserve the environment.Section 102 requirements are of a procedural nature. Federal agencies are required to make fullanalyses of all the environmental effects of implementing their programmes or actions. Section 102(1)directs agenciesto interpretand administerpolicies,regulations and laws in accordancewith thepolicies of NEPA. Section 102 (2) requires federal agenciesto use"a systematic and interdisciplinary approach"to ensure that social, natural andenvironmental sciences are used in planning and decision-making:to identify and develop procedures and methods so that “presently unquantified environmentalamenities and values may be given appropriate consideration in decision-making along withtraditional economic and technical considerations";to"include in every recommendation or report on proposals for legislation and other majorFederalactionssignificantlyaffectingthequalityofthehumanenvironment,adetailedstatement by the responsible official on:the environmental impact of the proposed action;any adverse environmental effects which cannot be avoided should the proposal beimplemented;alternatives to the proposed action;the relationship between local short-term uses of man's environment and the maintenanceand enhancement of long-term productivity:any irreversible and irretrievable commitments of resources which would be involved inthe proposed action should it be implemented (authors'emphases).Section 103 requires federal agencies to review their regulations and procedures for adherence withNEPA, and to suggest any necessary remedial measures.. Challenging an agency's decision not to prepare an EIA. This generally raised issuessuch as whether a project was major, federal, an "action", or had significantenvironmental impacts (see NEPA S102 (2) (C).For instance, the issue of whether anaction isfederal cameinto question in somelawsuits concerningthefederalfundingoflocalgovernmentprojects
Table 2.1 Main points of NEPA. NEPA consists of two titles. Title I establishes a national policy on the protection and restoration of environmental quality. Title II sets up a three-member Council on Environmental Quality (CEQ) to review environmental programmes and progress, and to advise the President on these matters. It also requires the President to submit an annual “Environmental Quality Report” to Congress. The provisions of Title I are the main determinants of EIA in the USA, and they are summarized here. Section 101 contains requirements of a substantive nature. It states that the Federal Government has a continuing responsibility to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfil the social, economic and other requirements of present and future generations of Americans”. As such the government is to use all practicable means, “consistent with other essential considerations of national policy”, to minimize adverse environmental impact and to preserve and enhance the environment through federal plans and programmes. Finally, “each person should enjoy a healthful environment”, and citizens have a responsibility to preserve the environment. Section 102 requirements are of a procedural nature. Federal agencies are required to make full analyses of all the environmental effects of implementing their programmes or actions. Section 102 (1) directs agencies to interpret and administer policies, regulations and laws in accordance with the policies of NEPA. Section 102 (2) requires federal agencies ● to use “a systematic and interdisciplinary approach” to ensure that social, natural and environmental sciences are used in planning and decision-making; ● to identify and develop procedures and methods so that “presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with traditional economic and technical considerations”; ● to “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on: ● the environmental impact of the proposed action; ● any adverse environmental effects which cannot be avoided should the proposal be implemented; ● alternatives to the proposed action; ● the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; ● any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented (authors’ emphases). Section 103 requires federal agencies to review their regulations and procedures for adherence with NEPA, and to suggest any necessary remedial measures. ● Challenging an agency’s decision not to prepare an EIA. This generally raised issues such as whether a project was major, federal, an “action”, or had significant environmental impacts (see NEPA §102 (2) (C)). For instance, the issue of whether an action is federal came into question in some lawsuits concerning the federal funding of local government projects.1 Introduction to environmental impact assessment 28
29Originsanddevelopment.Challenging the adequacy of an agency's EIS. This raised issues such as whether anEIS adequately addressed alternatives, and whether it covered the full range ofsignificant environmental impacts. A famous early court case concerned theChesapeakeEnvironmentalProtectionAssociation'sclaimthattheAtomicEnergyCommission did not adequately consider the water quality impacts of its proposednuclear power plants,particularly in the EIA for the Calvert Cliffs power plant.2TheCommission argued that NEPAmerely required the consideration of water qualitystandards; opponents argued that it required an assessmentbeyondmerecompliancewith standards. The courts sided with the opponents· Challenging an agency's substantive decision, namely its decision to allow or not toallow a project to proceed in light of the contents of its EIS. Another influential earlycourt ruling laid down guidelines for the judicial review of agency decisions, notingthat the court's onlyfunction was to ensure that theagency had taken a"hard look"atenvironmental consequences,nottosubstituteits judgementforthatof the agencyThe early proactive role of the courts greatly strengthened the power of environmentalmovements and causedmanyprojectstobestoppedor substantiallyamended.Inmanycases the lawsuits delayed construction for long enough to make them economicallyinfeasible or to allow the areas where projects would have been sited to be designated asnational parks or wildlife areas (Turner 1988).More recent decisions have been lessclearly pro-environment than the earliest decisions.The flood of earlylawsuits, with thedelays and costs involved, was alesson to other countries in how not to set up an EIAsystem.As will be shownlater, many countries carefullydistanced their EIA systemsfromthepossibilityof lawsuits.The CEQ was also instrumental in establishing guidelines to interpret NEPA,producing interim guidelines in 1970, and guidelines in 1971 and 1973. Generally thecourts adhered closely to these guidelines when making their rulings. However, theguidelines were problematic: they were not detailed enough, and were interpreted by thefederal agencies as being discretionary rather than binding.To combat these limitationsPresident Carter issued Executive Order 11992 in 1977,giving the CEQ authority to setenforceableregulationsforimplementingNEPA.Thesewereissuedin1978(CEQ1978)and sought tomake the NEPAprocess more useful fordecision-makers and the public, toreduce paperwork and delay and to emphasize real environmental issues and alternatives.AsummaryofNEPAproceduresThe process of EIA established by NEPA, and developed further in the CEQ regulationsis summarized inFigure2.1.Thefollowingcitations arefrom theCEQregulations (CEQ1978)
● Challenging the adequacy of an agency’s EIS. This raised issues such as whether an EIS adequately addressed alternatives, and whether it covered the full range of significant environmental impacts. A famous early court case concerned the Chesapeake Environmental Protection Association’s claim that the Atomic Energy Commission did not adequately consider the water quality impacts of its proposed nuclear power plants, particularly in the EIA for the Calvert Cliffs power plant.2 The Commission argued that NEPA merely required the consideration of water quality standards; opponents argued that it required an assessment beyond mere compliance with standards. The courts sided with the opponents. ● Challenging an agency’s substantive decision, namely its decision to allow or not to allow a project to proceed in light of the contents of its EIS. Another influential early court ruling3 laid down guidelines for the judicial review of agency decisions, noting that the court’s only function was to ensure that the agency had taken a “hard look” at environmental consequences, not to substitute its judgement for that of the agency. The early proactive role of the courts greatly strengthened the power of environmental movements and caused many projects to be stopped or substantially amended. In many cases the lawsuits delayed construction for long enough to make them economically infeasible or to allow the areas where projects would have been sited to be designated as national parks or wildlife areas (Turner 1988). More recent decisions have been less clearly pro-environment than the earliest decisions. The flood of early lawsuits, with the delays and costs involved, was a lesson to other countries in how not to set up an EIA system. As will be shown later, many countries carefully distanced their EIA systems from the possibility of lawsuits. The CEQ was also instrumental in establishing guidelines to interpret NEPA, producing interim guidelines in 1970, and guidelines in 1971 and 1973. Generally the courts adhered closely to these guidelines when making their rulings. However, the guidelines were problematic: they were not detailed enough, and were interpreted by the federal agencies as being discretionary rather than binding. To combat these limitations, President Carter issued Executive Order 11992 in 1977, giving the CEQ authority to set enforceable regulations for implementing NEPA. These were issued in 1978 (CEQ 1978) and sought to make the NEPA process more useful for decision-makers and the public, to reduce paperwork and delay and to emphasize real environmental issues and alternatives. A summary of NEPA procedures The process of EIA established by NEPA, and developed further in the CEQ regulations, is summarized in Figure 2.1. The following citations are from the CEQ regulations (CEQ 1978). Origins and development 29
30IntroductiontoenvironmentalimpactassessmentAgency planning:wilacsionhaveasignificantnouncertaineflectonthequalityof thehuman ervironment?Finding of noPreparePublicnotice of intentsignificantimpacttopreparets立PublicinputPublic inputScopingActionOtherinputpermitted(State and local.organizations,otc.)Draftes★Agency reviewPubliccommentvFinalesAgenciesdecide00whetheractiorshouidbepermittodAgendlesWdisagro+ActionrefusedActionpermitted,possiblywithCEQarbitrationconditionsJudicialrosolutionRecordofdecisionpossibleFigure2.1ProcessofEIAunderNEPA. (Adaptedfrom Legore1984)[The EIA process begins] as close as possible to the time the agency isdeveloping or is presented with a proposal...The statement shall beprepared early enough so that it can serve practically as an importantcontribution to the decision-making process and will not be used torationalizeor justifydecisions alreadymade.(S1502.5)A"lead agency"is designated that co-ordinates the EIA process. The lead agency firstdetermines whether the proposal requires the preparation of a full EIS, no EIS at all, or a"finding of no significant impact"(FONSI).This is done through a series of tests. A firstest is whether a federal action is likely to individually or cumulatively have a significant
Figure 2.1 Process of EIA under NEPA. (Adapted from Legore 1984) [The EIA process begins] as close as possible to the time the agency is developing or is presented with a proposal. The statement shall be prepared early enough so that it can serve practically as an important contribution to the decision-making process and will not be used to rationalize or justify decisions already made. (§1502.5) A “lead agency” is designated that co-ordinates the EIA process. The lead agency first determines whether the proposal requires the preparation of a full EIS, no EIS at all, or a “finding of no significant impact” (FONSI). This is done through a series of tests. A first test is whether a federal action is likely to individually or cumulatively have a significant Introduction to environmental impact assessment 30
Origins anddevelopment31environmental impact.All federal agencies have compiled lists of"categoricalexclusions"which are felt not to have such impacts. If an action is on such a list, then nofurther EA action is generally needed. If an action is not categoricallyexcluded, an"environmental assessment"is carried outtodeterminewhether afull EIS oraFONSI isneeded. A FONSI is a public document which explains why the action is not expected tohaveasignificantenvironmental impact.If a FONSI is prepared, then a permit would usually be granted following publicdiscussion. If a full EIS is found to be needed, the lead agency publishes a "Notice ofIntent",and the process of scoping begins.The aim of the scoping exercise is todetermine the issues to be addressed in the EIA:to eliminate insignificant issues, focuson those that are significant and identify alternatives to be addressed.The lead agencyinvites the participation of the proponent of the action,affected parties and otherinterestedpersons.[The alternatives] section is the heart of the environmental impactstatement... [It] should present the environmental impacts of the proposaland the alternatives in comparative form, thus sharply defining the issuesand providing a clear basis for choice...(S1502.14)Adraft EIS is then prepared,and is reviewed and commented on bytherelevantagenciesand thepublic.These comments aretaken into account in thesubsequent preparation ofafinal EIS.An EIS is normally presented in the format shown in Table 2.2. In an attempttobe comprehensive,earlyEiSStended to be so bulky as tobevirtually unreadable.TheCEQ guidelines consequently emphasize the need to concentrate only on important issuesand to prepare readable documents:The text of final environmental impact statements shall normally be lessthan 150 pages... Environmental impact statements shall be written inplainlanguage...(S1502.7-8)The public is involved in this process, both at the scoping stage and after publication ofthedraftandfinalEiSS:Agencies shall: (a) Make diligent efforts to involve the public in preparingand implementing NEPA procedures..(b)Provide public notice ofNEPA-related hearings,public meetings and the availability ofenvironmental documents
environmental impact. All federal agencies have compiled lists of “categorical exclusions” which are felt not to have such impacts. If an action is on such a list, then no further EIA action is generally needed. If an action is not categorically excluded, an “environmental assessment” is carried out to determine whether a full EIS or a FONSI is needed. A FONSI is a public document which explains why the action is not expected to have a significant environmental impact. If a FONSI is prepared, then a permit would usually be granted following public discussion. If a full EIS is found to be needed, the lead agency publishes a “Notice of Intent”, and the process of scoping begins. The aim of the scoping exercise is to determine the issues to be addressed in the EIA: to eliminate insignificant issues, focus on those that are significant and identify alternatives to be addressed. The lead agency invites the participation of the proponent of the action, affected parties and other interested persons. [The alternatives] section is the heart of the environmental impact statement. [It] should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice.(§1502.14) A draft EIS is then prepared, and is reviewed and commented on by the relevant agencies and the public. These comments are taken into account in the subsequent preparation of a final EIS. An EIS is normally presented in the format shown in Table 2.2. In an attempt to be comprehensive, early EISS tended to be so bulky as to be virtually unreadable. The CEQ guidelines consequently emphasize the need to concentrate only on important issues and to prepare readable documents: The text of final environmental impact statements shall normally be less than 150 pages. Environmental impact statements shall be written in plain language.(§ 1502.7–8) The public is involved in this process, both at the scoping stage and after publication of the draft and final EISS: Agencies shall: (a) Make diligent efforts to involve the public in preparing and implementing NEPA procedures.(b) Provide public notice of NEPA-related hearings, public meetings and the availability of environmental documents. Origins and development 31