What is NEPA? What Does it Require?

In 1970, the National Environmental Policy Act (NEPA) was enacted. This established the President’s Council on Environmental Quality (CEQ).

The law requires federal agencies to assess the environmental effects of proposed actions. This can thus impact contractors working on federal projects, including developers constructing buildings that will be used by federal agencies.

What are the Requirements Under NEPA?

In basic terms, NEPA requires that federal agencies perform an environmental review before taking a “major action,” which includes land purchases and construction. Some actions are excluded if they normally don’t have a significant effect on the environment. This is called a Categorical Exclusion (CATEX) and means no further action needs to be taken.

Otherwise, an Environmental Assessment (EA) is performed to establish whether the action may cause significant effects. They are required to consider alternatives (which might include, for example, looking at several sites for a proposed building) and compare the environmental impacts. If this reveals a likelihood of significant environmental impacts, then the agency has to prepare an Environmental Impact Statement (EIS).

This has to be available for public review for at least 45 days, then there is a 30 day wait period between the final EIS being published and the decision being made.

Of course, this adds a complication for contractors, as well as adding time before the project can be started. Depending on the results of the comment period, changes may be made in response to suggestions or concerns from the public or other stakeholders. Each federal agency has its specific procedures to ensure NEPA compliance.

NEPA is procedural and is designed to ensure that decisions are made with all available information. It doesn’t require any kind of environmental mitigation or constraints on implementation. In other words, it’s not intended to prevent poor decisions, only to prevent uninformed ones.

What Does an EIS Contain?

So, what does an EIS contain? An EIS contains the following:

• A cover sheet that gives the name and contact information of the agency or agencies involved, the title and location of the action, an abstract, and the due date for comments.
• A summary of the major conclusions and issues that need to be resolved.
• A purpose and need statement, explaining why the agency is doing the action and what the benefits will be.
• Alternatives. This is a list of other options the agency could use.
• Affected environment. This describes the environment that would be affected by all the alternatives.
• Environmental consequences.
• Submitted alternatives, information, and analysis. This includes information used from public comments and added to the final EIS.
• List of preparers.
• Appendices, if needed.

As you can see, an EIS is a long and complicated document that takes time and effort to prepare and involves multiple stakeholders. It is not a binding document but rather meant to help inform development.

It also requires that proper environmental surveys be done to ensure that the issues are all identified. Thankfully, these are primarily the kinds of surveys, such as soil assessment, that you should be doing anyway, although the waiting period can cause delays and should be built into your estimates.

When are Private Companies Subject to NEPA?

While NEPA primarily applies to federal “actions,” private companies may become subject to NEPA if:

• Federal approval is required, for example for construction on federal land.
• Federal funding is involved in the project.

So, while NEPA doesn’t typically apply to private actions, it applies to public-private partnerships and similar arrangements. It also applies to any development that requires a federal permit. This most often refers to mining, but can sometimes impact development. For example, NEPA applies to any projects funded by the National Endowment for the Humanities, which gives out a lot of grants. NEPA can thus come into play even after the ground has been broken on a site, resulting in delays (although the extra funding may well prove worth it). In general, federal agencies will help affected organizations deal with the requirements.

It is, however, important to be aware of them, especially the required public comment period and the need to present alternatives. The latter can cause significant issues if you have already purchased land or, worse, broken ground. Although the review is not binding, changes will likely be made afterwards.

Who Prepares NEPA Environmental Impact Statements?

When an EIS is prepared by a federal agency, it is typically done by their staff. Contractors who need to go through the review process to obtain federal permits or funding may need to hire an outside consultant to prepare the statement and to perform any surveys the EA marks as necessary.

One way to avoid being in a bind if you or the person who has hired you applies for federal funding is to do an environmental assessment of your own before starting work. This can then be used to help in the review process, especially if you make sure to cover everything a Phase I survey shows up. This also ensures the safety of your workers and the eventual occupants and is generally good business.

Already knowing your likely environmental impacts and having a plan to mitigate them can help keep you from running up against the required alternatives clause of NEPA. It can also help you give quick and satisfactory answers to questions asked during the public comment process, which can otherwise hold things up while you try to address the concerns, or make you look bad for not addressing them.

The statement itself is best farmed out to a contractor if you need to prepare it, or prepared with the assistance of an agency. Because they follow a very strict format and requirements, it’s a lot faster for somebody who is used to them to do it.

If you are working on a federal contract or are in a situation where federal permits or funding are involved, your project may come under NEPA. This doesn’t need to be a scary thing and most of the requirements are things you should be doing anyway. However, you may find you need outside expertise to make sure you meet the requirements.