2 The Legal Basis for Environmental Impact Statements In this chapter, the three federal documents that form the legal basis for the requirement for an Environmental Impact Statement (EIS) will be described: The National Environmental Policy Act (NEPA) The Council on Environmental Quality (CEQ) Regulations for Implementing NEPA Executive Order 11514 as amended by Executive Order 11991, entitled “Protection and Enhancement of Environmental Quality That Requires Federal Agencies to Implement NEPA.” Because of their importance to the subject of this book, the first two documents are reproduced in full in the appendices The discussion of those three documents will be followed in this chapter by examples of agency regulations for their implementation Finally, a brief discussion will present similar requirements by states and municipalities 2.1 THE NATIONAL ENVIRONMENTAL POLICY ACT A major turning point in the United States concern for the environment occurred in 1969 when Congress enacted the National Environmental Policy Act of 1969, otherwise known as NEPA For the first time in our history, a law was enacted which required that environmental effects be considered before any activity requiring a federal permit could be undertaken “Think before you act” became the national policy A discussion of the key features of the Act follows NEPA established a nationwide policy for promoting environmental considerations for federal decision making NEPA represents the national environmental goals and policies which are intended to mitigate mistakes of the past and to avoid possible problems in the future through thoughtful and coordinated planning efforts The essence of the Act, and indeed of the entire environmental movement in this country, is stated in the Purpose of the Act (Section 2) as follows: “To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of © 1999 by CRC Press LLC man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” Under Title I of the Act, the definition of the national environmental policy is expanded as follows: “The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans (b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, whenever possible, an environment which supports diversity, and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” Section 102 of the Act then requires that “the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act.” The section then goes on to implement this requirement by creating the environmental impact report process as follows: “Include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on: © 1999 by CRC Press LLC (i) The environmental impact of the proposed action, (ii) Any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) Alternatives to the proposed action, (iv) The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” The federal official responsible for an EIS is required to obtain the views of all federal, state and local agencies that may be affected States are allowed to prepare their own EISs, provided that the responsible federal official is involved in the process and evaluates the statement Title II of NEPA establishes the Council on Environmental Quality (CEQ) in the Executive Office of the President It is composed of three members, one of whom is the chairperson The Council has the responsibility of preparing an annual Environmental Quality Report for transmittal by the President to the Congress It also gathers information on trends in environmental quality, reviews federal programs for compliance with NEPA, conducts studies, and recommends national environmental policies and legislation In exercising its powers, the CEQ consults with the Citizens Advisory Committee that was established by Executive Order No 11472, on May 29, 1969 The full text of the National Environmental Policy Act, current as of March 24, 1998, is found in Appendix at the end of this book 2.2 CEQ REGULATIONS FOR IMPLEMENTING NEPA CEQ has issued regulations under the authority of NEPA and Executive Order 11514 as amended by Executive Order 11991 The CEQ Regulations apply to all federal agencies Almost every federal agency has issued its own set of regulations that clarify how it will comply with the CEQ requirements They all are similar in nature, follow the CEQ regulations quite closely and differ only in items that are unique to each agency The purpose of the CEQ regulations is to tell federal agencies what they must to comply with NEPA The regulations state that: “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken The information must be of high quality Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment These regulations provide the direction to achieve this purpose.” A key provision of the regulations is that paperwork shall be kept to a minimum and the EISs are to be written in a manner that is understandable to the general public Consequently, EISs generally are limited to 150 pages, have executive © 1999 by CRC Press LLC summaries, and are easy to understand The detailed technical information that supports the EIS conclusions usually is found in an appendix to the EIS and has no page limit The CEQ regulations require that “Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” This timing is critical so that environmental factors may be considered while the opportunity exists to make adjustments in the project to accommodate environmental concerns The regulations allow agencies to perform an environmental assessment (EA) as a part of the process of determining whether an EIS should be prepared The result of the EA is either the preparation of a Finding of No Significant Impact (FONSI) or else the preparation of an EIS When it is obvious that an EIS will have to be prepared, the agency may go directly to the EIS step and skip the EA Each EIS has a lead agency which supervises its preparation When more than one agency is involved in a project, a determination of the lead agency is made by the agencies involved The remaining agencies then become cooperating agencies In case of a disagreement as to who should be the lead agency, the determination is made by the CEQ Cooperating agencies include those that have jurisdiction over any phase of the project, or else have special expertise with respect to any environmental issue They participate in the NEPA process and may develop some of the information required for the EIS The U.S Environmental Protection Agency (EPA), the U.S Fish and Wildlife Service, and the Corps of Engineers are the most frequent cooperating agencies Scoping meetings are held very early in the EIS process for the purpose of determining the scope of the issues to be addressed and for identifying the significant environmental factors related to a proposed action As soon as a decision is made by an agency to prepare an EIS, it must publish a Notice of Intent in the Federal Register The scoping meeting is the next step in the EIS process The lead agency invites “the participation of affected Federal, State, and local agencies, any affected Indian tribe, the proponent of the action, and other interested persons (including those who might not be in accord with the action on environmental grounds.)” The scoping meeting is intended to accomplish the following objectives: • “Determine the scope and the significant issues to be analyzed in depth in the environmental impact statement • Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review • Allocate assignments for preparation of the environmental impact statement among the lead and cooperating agencies • Indicate any public environmental assessments and other environmental impact statements which are being or will be prepared that are related to but are not part of the scope of the impact statement under consideration • Identify other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently with, and integrated with, the environmental impact statement â 1999 by CRC Press LLC ã Indicate the relationship between the timing of the preparation of environmental analyses and the agency’s tentative planning and decision-making schedule.” The CEQ regulations then define an EIS and discuss its implementation EISs are required for major federal actions In addition to projects requiring federal permits, this may include the adoption of new agency programs or regulations Timing is critical so that the EIS will be able to affect the project The regulations state that “An agency shall commence preparation of an environmental impact statement as close as possible to the time the agency is developing or is presented with a proposal so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.” EISs are to be written in plain language so everyone understands them They are to proceed in two stages as follows: Draft EIS according to the decisions made in the scoping process Final EIS should respond to comments made on the draft EIS In addition, supplementary EISs may be prepared if the situation warrants it The proposed format includes the following: Cover sheet Summary Contents Purpose of and need for action Alternatives including proposed action Affected environment Environmental consequences List of preparers List of agencies, organizations, and persons to whom copies of the statement are sent 10 Index 11 Appendices (if any) Each item in the preceding list then is defined in detail in the regulations The cover sheet is to contain a list of the responsible agencies; the title of the proposed action and its location; identification of the person who can supply more information; a designation of the EIS as draft, final or supplementary; an abstract; and the date by which comments on the EIS must be received The summary contains the major conclusions, areas of controversy, and issues to be resolved It is not to exceed 15 pages The discussion of alternatives must present “the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decision-maker and the © 1999 by CRC Press LLC public.” If preferred alternatives exist, they are to be identified Also, appropriate mitigative actions for negative impacts are to be shown The affected environment means the environment of the area that may be affected as it exists prior to the proposed action The environmental consequences of each of the alternatives form the basis for their comparison Especially critical factors should include any adverse environmental effects which cannot be avoided, the relationship between short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented Both direct and indirect effects are to be considered Conflicts with plans, policies, and controls for the area concerned are to be noted Consequences are defined so as to include environmental effects, energy and resource requirements, as well as urban quality, historic, and cultural resources The list of preparers should include a description of their qualifications The appendix has all of the back-up material prepared or obtained during the EIS and is to be circulated with the EIS Circulation of the draft and final EISs are to be made according to the following list: “(a) Any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved and any appropriate Federal, State or local agency authorized to develop and enforce environmental standards (b) The applicant, if any (c) Any person, organization, or agency requesting the entire environmental impact statement (d) In the case of a final environmental impact statement, any person, organization, or agency which submitted substantive comments on the draft.” Whenever a broad EIS has been prepared (such as a program or policy statement) and a subsequent statement or EA is then prepared on an action included within the entire program or policy (such as a site-specific action), the subsequent statement or EA need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference It should only concentrate on the issues specific to the subsequent action Similarly, in order to reduce EIS size, material which is readily available to the public may be incorporated by reference Cost–benefit analyses details may be placed in the appendix; only the results need to be discussed in the EIS Methodologies used in the EIS are to be named in the EIS and discussed in the appendix The regulations emphasize the need to prepare draft EISs concurrently with and integrated with the related documents required by the following: • Fish and Wildlife Coordination Act • National Historic Preservation Act © 1999 by CRC Press LLC • Endangered Species Act • Other environmental review laws and executive orders The draft EIS must list all federal permits, licenses, and so on that must be obtained in order to implement the proposal The CEQ regulations contain very specific requirements relative to comments on the EIS: • • • • Inviting them Duty of agencies to respond Specificity of comments Responses to them After preparation of the draft EIS, the agency sponsoring it must obtain comments from the following: • • • • • • Federal agencies State and local agencies Indian tribes, when affected Any other interested agency The applicant, if any The interested public, by soliciting comments from persons and organizations Federal agencies are duty bound to comment on the draft EIS or to respond by saying that they have no comment Comments are to be as specific as possible with regard to methodology, the need for additional information, and possible mitigation measures necessary to allow permits or licenses to be issued Comments to the draft EIS are to be responded to by any of the following methods: • • • • • Modification of alternatives, including the proposed action Development of new alternatives Modification of analyses in the EIS Factual corrections Explaining why the comments not apply The comments and the responses should be incorporated into the final EIS This is usually done in the appendix for those comments that are not accepted There may be cases where proposed major federal actions may cause unsatisfactory environmental effects, as determined by the EPA in its authority under the Clean Air Act as amended, (1970 et seq.) In that event, or if another federal agency makes a similar determination in its NEPA review, and differences cannot be resolved with the lead agency, the matter is referred to the CEQ for judgment Every possible attempt is to be made to minimize this from happening, with emphasis on mitigating © 1999 by CRC Press LLC the unfavorable environmental consequences or else switching to a more favorable alternative If referral does occur, the CEQ must start action within 25 days to resolve the matter and complete that action in 60 days Part 1505 of the CEQ regulations sets forth the requirements that the NEPA process be included in all of each federal agency’s principal programs likely to have a significant effect on the human environment The relevant environmental factors are to be considered in deciding between alternatives Public input is encouraged A public record of decision (ROD) must be made in cases where EISs were required The ROD must discuss the alternatives and describe any practicable means of avoiding or minimizing environmental harm, including possible monitoring and enforcement programs Permits and funding of the actions are to have mitigation and monitoring as conditions of approval where necessary Part 1506 of the regulations covers other requirements of NEPA The first requirement places limitations on any actions that may be taken on a proposal subject to NEPA until the EIS process is completed, thus preventing a fait accompli and ensuring that the NEPA process will work Another requirement encourages federal agencies to cooperate with state and local agencies to reduce duplication between NEPA and comparable state and local requirements Agencies are allowed to adopt EISs prepared by other agencies if the proposed actions are essentially the same, or to combine them with other agency documents EISs are to be prepared by contractors chosen by the lead agency or, where appropriate, by a cooperating agency In any event, there is to be no conflict of interest concerning the contractor Public involvement in the NEPA procedures is stressed Adequate public notices of the availability of the NEPA documents is emphasized Actions with national concern effects are to have a notice published in the Federal Register In addition, national organizations that may be interested are to be notified For actions of local interest, notices are to given to Indian Tribes of effects that may occur on reservations In addition, notices are to be published in local newspapers (rather than legal papers) and also are to be given to community organizations, small business associations, newsletters, and the like Furthermore, information about the EIS may be distributed by direct mailing to owners and occupants of nearby affected properties A notice may be posted at the location where the action will take place The federal agency may decide to hold public hearings if substantial environmental controversy exists, if there is substantial interest in a hearing, or if another agency with jurisdiction over the action feels that a hearing will be helpful When a public hearing is held on an EIS, a notice to the public must be given at least 15 days in advance EISs, comments received, and all of the underlying information are to be made available to the public either without charge, or for the actual costs of reproduction This may be done under the Freedom of Information Act From time to time, the CEQ may provide federal agencies with further guidance concerning NEPA by using any of several procedures available to it In certain circumstances, proposed congressional legislation may require an EIS or its equivalent, which must be available in time for congressional hearings on the © 1999 by CRC Press LLC legislation No scoping meetings are required Further, the document is called a detailed statement instead of a draft EIS However, conventional draft and final EISs are to be prepared under any of the following conditions: “(i) A Congressional Committee with jurisdiction over the proposal has a rule requiring both draft and final environmental impact statements (ii) The proposal results from a study process required by statute (such as those required by the Wild and Scenic Rivers Act and the Wilderness Act.) (iii) Legislative approval is sought for Federal or Federally assisted construction or other projects which the agency recommends be located at specific geographic locations For proposals requiring an environmental impact statement for the acquisition of space by the General Services Administration, a draft statement shall accompany the Prospectus or the 11(b) Report of Building Project Surveys to the Congress, and a final statement shall be completed before site acquisition (iv) The agency decides to prepare draft and final statements Comments on the legislative statement are given to the lead agency which forwards them along with its own responses to the Congressional committees with jurisdiction.” EISs along with comments and responses are filed with the EPA, which delivers copies to the CEQ The EPA publishes a notice each week that lists the EISs filed during the preceding week Decisions by agencies on the proposed actions cannot be made until 90 days after a draft EIS or 30 days after a final EIS Exceptions are made in the case of appeals by other agencies or the public Exceptions also may be made when rule making is for protection of public health or safety In any event, not less than 45 days is to be allowed for comments on draft statements The lead agency may extend the prescribed periods The EPA may reduce the periods for compelling reasons of national policy Provision is made for emergency situations where it is necessary to take an action with significant environmental impacts without observing the regulations Part 1507 of the regulations requires all agencies of the federal government to comply with the CEQ regulations Each agency has a degree of flexibility in adapting its implementation procedures to NEPA A few of the definitions in Part 1508 are worthy of repetition here as they are particularly important in the EIS process They are as follows: “Categorical Exclusion” means “a category of actions which not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” “Finding of No Significant Impact” means “a document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded, will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it.” © 1999 by CRC Press LLC “Major Federal Actions” are defined as including the following categories: ” “(1) Adoption of official policy, such as rules, regulations, and interpretations; treaties and international conventions or agreements; and formal documents establishing an agency’s policies which will result in or substantially alter agency programs (2) Adoption of formal plans, such as official documents which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based (3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan (4) Approval of specific projects, such as construction or management activities located in a defined geographic area Projects include actions approved by permit or other regulatory decision as well as Federal and Federally assisted activities.” “Mitigation” includes: “(a) Avoiding the impact altogether by not taking a certain action or parts of an action (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation (c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action (e) Compensating for the impact by replacing or providing substitute resources or environments.” “Notice of Intent” means a notice that an environmental impact statement will be prepared and considered The notice shall briefly: “(a) Describe the proposed action and possible alternatives (b) Describe the agency’s proposed scoping process including whether, when, and where any scoping meeting will be held (c) State the name and address of a person within the agency who can answer questions about the proposed action and the environmental impact statement.” The full text of the CEQ regulations on implementing NEPA may be found in Appendix B at the end of this book 2.3 EXECUTIVE ORDER 11514, PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY Executive Order 11514 was promulgated on March 5, 1970 and was amended by Executive Order 11991 [Sections 2(g) and 3(h)] on May 24, 1977 It requires federal agencies to conform with NEPA under the guidance of the CEQ Details of the Executive Order follow Section sets forth what the federal government policy of environment is to be as follows: © 1999 by CRC Press LLC “The Federal Government shall provide leadership in protecting and enhancing the quality of the Nation’s environment to sustain and enrich human life Federal agencies shall initiate measures needed to direct their policies, plans and programs so as to meet national environmental goals.” Section makes it the responsibility of all federal agencies to monitor, evaluate, and control on a continuing basis their agencies’ activities so as to protect and enhance the quality of the environment Agencies are to develop programs and measures to protect and enhance environmental quality and shall assess progress in meeting the specific objectives of such activities Agencies also are to develop procedures to ensure the provision of timely public information concerning federal plans and programs with environmental impacts in order to obtain the views of interested parties Procedures are to include, whenever appropriate, provision for public hearings Federal agencies are to encourage state and local agencies to adopt similar procedures for informing the public concerning their activities affecting the quality of the environment Section of the Executive Order sets forth the responsibilities of the CEQ It gives the CEQ overview responsibility for federal policies and activities directed toward pollution control and environmental quality With regard to environmental impacts, the CEQ is to: “(e) Promote the development and use of indices and monitoring systems (1) to assess environmental conditions and trends, (2) to predict the environmental impact of proposed public and private actions, and (3) to determine the effectiveness of programs for protecting and enhancing environmental quality (f ) Coordinate Federal programs related to environmental quality (h) Issue regulations to Federal agencies for the implementation of the procedural provisions of the Act.” 2.4 NEPA REGULATIONS BY OTHER AGENCIES As indicated above, the CEQ regulations call for the development of regulations by each federal agency on how it will implement the NEPA process This has been done, but there is a substantial degree of variation from agency to agency in regard to the type of projects and policy matters that will have to conform to the EIS process The individual agency regulations, therefore, make provision for these variations while, at the same time, adhering to NEPA and the CEQ regulations A listing of federal agency regulations implementing NEPA is located in Appendix at the end of this book The organization that is the most involved with NEPA is the EPA A discussion follows that describes the approach the EPA uses to develop regulations for the implementation of the NEPA process EPA’s compliance procedures with NEPA are contained in 40 CFR These procedures establish a straightforward, step-by-step approach for ensuring that agency decision making includes careful consideration of all environmental effects of proposed actions, analysis of potential environmental effects of proposed actions and © 1999 by CRC Press LLC their alternatives, provision for public understanding and scrutiny, and avoidance or minimization of adverse effects to the extent possible The process is designed to incorporate consideration of environmental factors into the decision-making process at the earliest possible point For all of the EPA programs addressed under 40 CFR 6, the environmental review process includes the identification and exercise of decision-making authority by a “responsible official.” This person may be an EPA Regional or Headquarters official, supplemented by staff, and assisted by other agency staff or consultants The first document prepared in the NEPA process is an “Environmental Information Document” which is prepared by applicants, grantees, or permit applicants and submitted to the EPA The environmental information document must include adequate information to enable the responsible official to prepare the environmental assessment The environmental information document, at a minimum, should include the following information: • • • • • Overview of the proposed action, including purpose and need Description of the existing environment Description of the future environment Development and evaluation of alternatives Description of the environmental impacts of the action Key requirements for the environmental information document include ensuring a thorough evaluation, particular consideration of indirect impacts, and evaluation of the no-action alternative If the proposed undertaking receives a categorical exclusion, then an environmental information document need not be prepared Based on the information prepared by the applicant, grantee, or permittee, the EPA then carries out an environmental review, and prepares an EA of the proposed action The EA is a document that is made available to the public as a record of the EPA decision-making process carried out in review of the environmental information document Based on this review, a decision is made as to whether an EIS or FONSI is required If it can be determined ahead of time that an EIS will be required, it is not necessary to prepare a formal EA When deciding whether an EIS is required for a specific undertaking, the EPA considers a number of issues In general, an EIS is required in cases where significant, unavoidable adverse impacts are anticipated, and it is not considered feasible to mitigate these impacts Where it is determined that an EIS is necessary, the EPA must issue a Notice of Intent in the Federal Register Following this announcement, the EIS is prepared either by EPA staff, with or without contractor assistance, or by a third party under an agreement with the applicant Where the requirement for an EIS is determined early enough in the planning of the proposed project, it is possible to carry out a “piggyback” EIS, where the EIS is prepared jointly with the environmental information document Regardless of the particular approach taken, the key steps in the EIS process include the following: © 1999 by CRC Press LLC • Scoping, an early, open process for determining the scope of issues to be addressed and for identifying the significant issues related to the proposed action • Purpose and need for the project • Alternatives, including the proposed action • Alternatives considered by the applicant • The no-action alternative • Alternatives available to the EPA • Alternatives available to other permitting agencies • Identification of the preferred alternative • Description of the affected environmental and environmental consequences of each alternative • Coordination with other federal, state, and local agencies • Participation of the public through hearings, meetings and other activities After completion of the EIS, the responsible official then prepares a concise public Record of Decision (ROD) The ROD includes mitigation measures implemented to make the selected alternative environmentally acceptable The final step in the general series of actions taken to comply with NEPA is monitoring This includes all actions taken by the responsible official to ensure that decisions based on the EIS are properly implemented There are a series of EPA requirements for specific project and program EISs Some of these will be discussed in later chapters in this book under topics concerning various portions of the EIS 2.5 STATE AND MUNICIPAL EQUIVALENTS OF NEPA Many states and municipalities have developed their own modifications of EIS requirements and utilize them as a part of the permit-granting process for major new construction This includes facilities such as industrial plants, schools, highways, shopping centers, and so on The requirements tend to vary from state to state and from municipality to municipality as a function of the environmental concerns that are of greatest importance to the local authorities As would be expected because of its pollution problems, local control is the most intensive in the state of California Requirements have existed for many years for documents that are the equivalent of environmental assessments for most new construction, even of relatively small size In a number of other states, delegation of the NEPA process by the EPA is an accomplished fact The EPA maintains oversight authority on these environmental documents and may overrule the state if it believes that the documents are inadequate In connection with state activities, a brief discussion follows concerning the relationship between the EPA and a state when the state has been delegated NEPA responsibility On the surface, the relationship is a straightforward one The state has © 1999 by CRC Press LLC NEPA responsibilities and the EPA basically has an oversight responsibility that allows it to overrule the state in a situation where such an action would be necessary because of the state’s failure to comply properly with NEPA The EPA also has the final EIS determination It is generally assumed that the state will have a more relaxed attitude towards NEPA than will the EPA, because of the state’s proximity to the projects and the economic benefits deriving therefrom This turns out to be the case in some situations but not in others In 1980–1981, a team of EIS-skilled specialists under the overall direction of the author of this book undertook a study for the Regional Administrator of Region IV The purpose was to assess the effectiveness of the NEPA environmental review process by the states of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Kentucky, and Tennessee, some of which were delegated and others were not The study was accomplished by evaluating the existing environmental review procedures that had been used on selected projects that were subject to the EPA NEPA compliance program and others that have not been subject to NEPA review Major issues examined included the following: • Legislative and regulatory authority established by the states and federal government for 24 different environmental areas addressed under NEPA • Regulatory procedures required under state and federal NPDES programs and regulatory review of associated environmental resource areas • Level of protection and effectiveness of regulations established under state and federal review programs for 24 different environmental areas • Time and resource expenditures for NPDES and associated environmental reviews • Coordination of environmental review programs among agencies • Scope of mitigative authority to protect 24 different environmental areas The result of the study was a finding that the success of each state program was a function of the attitude of the state involved This depends upon the relative Environmental quality Environmental sophistication Comprehensiveness Budget of a state’s program Some of the delegated states performed better environmental reviews than were done by the EPA in nondelegated states Others did not as well © 1999 by CRC Press LLC ... for preparation of the environmental impact statement among the lead and cooperating agencies • Indicate any public environmental assessments and other environmental impact statements which are... on May 29 , 1969 The full text of the National Environmental Policy Act, current as of March 24 , 1998, is found in Appendix at the end of this book 2. 2 CEQ REGULATIONS FOR IMPLEMENTING NEPA CEQ... (c) Any person, organization, or agency requesting the entire environmental impact statement (d) In the case of a final environmental impact statement, any person, organization, or agency which