National Environmental Policy Act
The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4375, provides a significant opportunity to affect U.S. Government decision making that could harm the environment – including both natural and physical resources such as sacred, cultural and historic sites.
A federal agency may not proceed with a proposed action until it performs an environmental review that includes meaningful consideration of alternatives to the proposed action that would avoid or have a less harmful impact.
As with Section 106 of the National Historic Preservation Act, NEPA is a procedural statute and therefore does not require a specific result in every case. Rather, NEPA simply insists that federal agencies take a "hard look" at the environmental impact of its actions through its decision-making process. This means that a federal agency must prepare a "detailed statement" on "every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment." Each statement – known as an Environmental Impact Statement (EIS) – must set forth a baseline assessment of the environment and address:
- The environmental impact of the proposed action, including direct, indirect and cumulative impacts;
- Any adverse environmental effects which cannot be avoided should the proposal be implemented;
- Alternatives to the proposed action (the "heart" of NEPA);
- The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and
- Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Federal agencies cannot consider the impact of their actions in a vacuum. Rather, an agency must obtain and consider the comments of other federal agencies with jurisdiction over the action at issue, state and local governments. A federal agency must also provide public notice, meetings and hearings, as well as make its Environmental Impact Statements, comments, underlying documents, and so forth available to the public for review. Consultation must occur early in the process to ensure meaningful input and informed decision making.
Federal agencies initiate their NEPA responsibilities by preparing an Environmental Assessment (EA) to determine whether preparation of an EIS is necessary. An EA is a "concise public document" that serves to:
- Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact;
- Aid an agency's compliance with the Act when no environmental impact statement is necessary; and
- Facilitate preparation of a statement when one is necessary.
If a federal agency decides, after preparation of its EA, that the proposed action will not "significantly affect the quality of the human environment," then the agency will issue a Finding of No Significant Impact (FONSI), thereby terminating the NEPA process. Critical to the agency's analysis is whether its proposed action will have a significant affect on historic or cultural resources. At issue may be the degree and manner in which a proposed action affects historic or cultural sites that are listed or eligible for listing on the National Register of Historic Places. Will the impact be direct (such as the construction of a highway through a historic site) or indirect (such as the construction of a highway near a historic site), and do the impacts, although individually "insignificant," rise to the level of a "significant impact" when considered together? Potentially minor impacts, such as visual intrusions, increased noise levels and pollution, may be identified as a significant affect (or "cumulative impact") when viewed collectively.
If the federal agency decides that its actions could affect the environment, then it will either decide to change the project to mitigate the impacts and issue a FONSI, or initiate preparation of a full blown EIS. The EIS is a lengthy and detailed document that explains the impact of an agency's proposed action on the environment and the alternatives considered to avoid those impacts. Typically, preparation of an EIS begins with the publication of a "notice of intent" in the Federal Register, followed by "scoping" to identify the environmental impacts to address and the range of alternatives to consider. Next, a Draft EIS (DEIS) is prepared that describes the proposed action and discusses why it is necessary; explains how that action would impact the environment (including historic properties); and identifies and discusses alternatives to the proposed action. Following an agency review and public comment period, the draft is revised in response to the comments submitted.
The final document, referred to as the Final EIS (FEIS), is issued along with a Record of Decision (ROD). The ROD serves as notice to the public that the FEIS has been prepared. Typically, it includes a brief statement of the agency's decision; discussion on alternatives considered in the EIS and the alternative which would have the least harmful impact; factors weighed by the agency in making its decision; and measures adopted to mitigate or minimize the environmental impacts of the alternative selected.
Layperson's Guide to Preservation Law: Federal, State and Local Laws Governing Historic Resources: First published in 1997, this booklet provides a concise and comprehensible guide to federal, state and local laws governing historic resource protection. The 2008 edition includes updated information on transportation issues, eminent domain, easements, the American's with Disabilities Act, and the regulation of historic religious properties.