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The NEPA Review Process

As the National Environmental Policy (not Protection) Act, NEPA is not designed to protect all aspects of the environment, but to make sure that the decisions made by Federal agencies are environmentally sound. It is not supposed simply to generate environmental documents.

Contrary to what some historic preservation and cultural resource management specialists tend to think, NEPA does not apply only to a narrow range of Federal projects; its scope is really quite broad.

NEPA encourages early consideration of environmental impacts, in an open manner, with meaningful public participation. Of course, what one group thinks is meaningful may not seem so to another group.

NEPA requires review of the effects of all Federal, federally assisted, and federally licensed actions, not just of those defined as "major" or as having "significant" impacts. The level of review given different kinds of projects varies with the likelihood of serious impact.

The courts have consistently found that while NEPA does not elevate environmental protection over all other aspects of public policy, it does require a "hard look" at environmental impacts and at alternatives. NEPA does not require a particular result; it does not require that the best alternative from an environmental perspective be selected. It does mandate a process for taking that "hard look" at what an action may do to the environment, and what can be done about it.

In general, and as expressed in different ways for different kinds of actions, the NEPA process entails:

  • determining what need must be addressed,
     
  • identifying alternative ways of meeting the need,
     
  • analyzing the environmental impacts of each alternative, and
     
  • armed with the results of this analysis, deciding which alternative to pursue
    and how to pursue it.

The NEPA regulations, at 40 CFR 1500-1508, are issued by the Council on Environmental Quality (CEQ), in the Executive Office of the President. They are binding on all Executive Branch and independent Federal agencies. They outline the NEPA review process.

The statutory basis for the process is in Section 102 of the Act:

(A)ll agencies of the Federal Government shall . . .

  • (C) include in (all) proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement . . . NEPA Sec. 102

Under the regulations, the "detailed statement" called for by NEPA is called an Environmental Impact Statement (EIS). It must be prepared on all "major Federal actions significantly affecting the quality of the human environment."

Under the NEPA regulations, agencies may "exclude" certain classes of action from detailed review. These are referred to as "Categorical Exclusions" (CX, CE, CatEx). Even categorically excluded projects should receive some review; however, the regulations require finding out whether or not "extraordinary circumstances" require such a project to be analyzed in more detail.

If a project is not categorically excluded, but also is not obviously a major Federal action significantly affecting the quality of the human environment, it must be subjected to an "Environmental Assessment" (EA). This assessment leads either to the decision to prepare an EIS, or to issuance of a "Finding of No Significant Impact" (FONSI, FoNSI, or FNSI).

The MFASAQHE Myth

A common belief among historic preservationists is that "NEPA applies just to major actions, while Section 106 applies to everything." Based on this perception, preservationists often do not bother to consider NEPA as a tool to use in examining impacts on historic properties.

This perception arises from the following language in NEPA:

(A)ll agencies of the Federal Government shall . . .

(C) include in (all) proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement . . . NEPA Sec. 102 [emphasis added]

But this language doesn't say that NEPA applies only to MFASAQHEs (major federal actions significantly affecting the quality of the human environment). It says that a "detailed statement" of environmental impacts will be prepared for each MFASAQHE. This "detailed statement" is what the NEPA regulations call an Environmental Impact Statement (EIS). In other words, deciding that something is a MFASAQHE is the threshold for preparing an EIS, not for the application of NEPA.

In fact, NEPA applies to all actions carried out, assisted, or licensed by the Federal government. There are levels of NEPA analysis below the level of an EIS, that provide opportunities for – and indeed require – consideration not only of historic properties but of all kinds of cultural resources. These levels are represented by the Environmental Assessment (EA) and the Categorical Exclusion.

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