Since its enactment in 1970, the National Environmental Policy Act (NEPA) has evolved significantly. Over half a century of court interpretations and regulatory guidance has led to a considerable expansion of the law’s jurisdiction. While most of the public discourse revolves around delays and the length of documents, it’s critical to address the problematic interpretation of the term “major federal action”.
NEPA requires that all “major federal actions” that have a substantial impact on the environment must have an environmental impact statement (EIS) prepared. However, a landmark 1974 court case, Minnesota Public Interest Research Group v. Butz, essentially disregarded the term “major” in “major federal action”. The court ruled that differentiating between “major” and “minor” federal actions was inappropriate.
Today, the law applies to virtually every federal action. The only reason environmental review isn’t required for trivial actions (such as paying civil servants) is because agencies have created categorical exclusions (CEs). However, these CEs only provide a limited solution. A large number of actions remain in an uncertain state, with many needing to complete an Environmental Assessment (EA).
Applying NEPA to every federal action creates a “guilty until proven innocent” procedure where a large volume of actions have to be reviewed and cleared. The quantity of CE filings required consumes a significant amount of time and personnel. More importantly, the lack of a clear definition results in more actions needing an environmental assessment. This is particularly problematic as there are approximately 12,000 EAs completed annually compared to about 200 EISs, making EAs 30 times more paperwork-intensive than EIS documents.
Congress should set a floor for triggering the NEPA process by more clearly defining the meaning of “major federal action”. This can be done by defining “major federal action” through a set of inclusive criteria that are sufficient but not necessary. This would allow the definition to barrow from similar legal standards such as the USC’s definition of “major rule”. The list of inclusive criteria can be expanded to cover additional types of actions, if desired by policymakers.
Defining major federal action would ensure that the NEPA process only applies to actions that have a substantial impact on the environment or those with an unknown potential for substantial impact. This clarification wouldn’t alter the NEPA process once triggered and wouldn’t affect how controversial projects are reviewed. However, setting a minimum threshold would greatly streamline NEPA’s governance over agency actions and free up staff to focus on reviews requiring thorough environmental review.
The aim of defining “major federal action” isn’t to exempt environmentally impactful projects, but rather to ensure that only those actions that are sufficiently “major” and “federal” are subjected to the process. This would enable federal agencies to concentrate their efforts on projects that cause considerable environmental disruption.
42 U.S.C § 4331 is amended by adding the following paragraph at the end the following:
“(d) In general.—The term ‘major Federal action’ is defined under this subchapter as any action that:
(1) Receives more than $100,000,000 in federal funding;
(2) Requires a federal permit to commence the project; or
(3) Crosses a boundary between states or an international boundary.