5. What is an Environmental Impact Statement – National Environmental Policy Act?
An environmental impact statement is a detailed document that estimates the environmental impact of the proposed action. NEPA requires that an impact statement include the following:
• environmental impact (direct and indirect; beneficial and detrimental),
• any adverse environmental effects unavoidable if implemented,
• alternatives to the proposed action,
• short versus long-term use or productivity of the proposed project, and
• any irreversible or irretrievable commitment of resources involved in implementation.
The impact statement is often critiqued as a compliance rather than a decision-making tool, as federal agencies are not mandated to comply with any findings or recommendations in the statement. NEPA contains numerous provisions about litigating impact statement adequacy on procedural grounds. The process for developing an impact statement is as follows:
• Identify Issues – The agency should follow public process to determine the scope or key issues to be included;
• Public Comment on Draft of Statement – The agency should develop a draft impact statement, file it with the EPA, and allow time for public comments;
• Final Draft – The final impact statement is filed with the EPA, and a supplemental statement is prepared as required.
There is no private right of action under NEPA; instead, plaintiffs must sue under the Administrative Procedures Act for violations. The APA requires final action by the EPA before undertaking judicial review. Fifteen states and the District of Columbia have environmental policy acts modeled on NEPA. States may generally only be sued under their own NEPA statute, except when a sufficient federal nexus is created with the state project (such as through federal funding).
• Discussion: How do you feel about the procedural requirements of NEPA? Do you believe the environmental assessment and environmental impact statements are necessary procedures for administering the environmental laws? Does it affect your opinion to know that agencies are not required to follow the impact statement recommendations? Should these requirements be measured against the burden imposed upon the agency by these requirements?
• Practice Question: The Department of Agriculture is pursuing a plan to construct a large water distillation facility in New Mexico. What environmental law procedures must the agency follow before undertaking this project?