Brief History
The National Environmental Policy Act (NEPA) was signed into law in 1970 to promote efforts that prevent or eliminate damage to the environment [42 U.S. Code § 4321- 4347]. NEPA applies to all major federal actions, including awarding funds to applicants for federal assistance. NEPA requires that prior to funding, authorizing, or implementing an action, federal agencies consider the effects that their proposed action may have on the environment[1] and the related social and economic effects. NEPA must be completed as early as possible in any given decision-making process.
NEPA is typically referred to as an “umbrella” statute because it encourages agencies to incorporate other environmental and historic preservation requirements into one analysis for a streamlined decision-making process.
What are the Types of NEPA Analysis?
Categorical Exclusions (CATEXs)
CATEXs are a category of actions which do not individually or cumulatively have a significant effect on the human environment. CATEX determinations are a type of NEPA compliance, not an exemption from NEPA. CATEX lists are developed by each federal agency through their NEPA implementing procedures and must be formally approved by the White House Council on Environmental Quality (CEQ). BJA has its own list of approved CATEXs.
If extraordinary circumstances exist and cannot be mitigated, a CATEX will not be issued. The following factors are considered when determining whether extraordinary circumstances exist, such that an activity may not be categorically excluded from further NEPA review:
- Potential for noise impacts to exceed allowable noise standards as established by federal, state, and local regulations;
- Potential for hazardous or solid waste generation to exceed management capabilities on site or otherwise threaten violation of requirements to control hazardous or toxic substances;
- Potential for air emissions that could contribute to nonattainment status under the Clean Air Act or otherwise fail to conform to an applicable State Implementation Plan;
- Whether the action is expected to have permanent or long-term impacts, such as placement of a structure that will be kept on site for long-term use;
- Whether the action is of a much greater scope or size than normally experienced for this particular action;
- Proximity to environmentally sensitive areas or resources, such as federally listed threatened or endangered species or designated critical habitat, floodplains, wetlands, religious or cultural sites, or historic properties;
- Public controversy surrounding the activity;
- Potential cumulative impacts created by the activity;
- Potential to violate statutory, regulatory, or permit requirements for environmental, safety, and health at the federal, state, tribal, or local level;
- Involves the development or use of new technologies with unproven impacts;
- Involves uncertain risks or impacts;
- Establishes a precedent for future actions that are likely to have significant impacts;
- Whether other actions with potentially significant impacts are connected or otherwise dependent on the activity; and
- Whether the activity is contrary to or otherwise unaligned with existing local or state plans or zoning requirements.
Environmental Assessment (EA)/Finding of No Significant Impact (FONSI)/ Programmatic Environmental Assessment (PEA)
An EA is a concise analysis completed by BJA that is used to determine if a proposed action will have a significant impact on the environment. If, after analysis, no significant impacts are found, or mitigation can avoid or minimize adverse impacts below the level of significance, a Finding of No Significant Impact (FONSI) can be issued. However, if significant impacts are likely, a Notice of Intent to prepare an Environmental Impact Statement (EIS) is issued.
In 2023, OJP completed a Programmatic Environmental Assessment (PEA) to evaluate the environmental impacts of projects it funds on a broader, program-wide scale. A "programmatic" NEPA review assesses the environmental impacts of proposed policies, plans, or programs that are anticipated to have routine or similar impacts. This approach allows federal agencies to streamline NEPA compliance for individual projects, reducing repetitive analysis.
Environmental Impact Statement (EIS)/Record of Decision (ROD)
An EIS is a comprehensive review that analyzes the environmental effects of a proposed action and its reasonable alternatives. After the review and a 45-day public comment period, a Record of Decision outlines the federal agency’s required actions and determines whether to proceed with the proposed action or one of the alternatives considered in the analysis.
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