On August 25, 2014, the Council on Environmental Quality (CEQ) released for comment its long-awaited draft guidance on using programmatic National Environmental Policy Act (NEPA) documents. It is long awaited because the document has been in development since the CEQ’s Modernizing NEPA Implementation (2003). At that time, the CEQ established work groups made up of federal NEPA practitioners and charged each group with developing guidance on issues identified in the 2003 report. Guidance documents on such subjects as categorical exclusions were issued quickly, but others fell victim to other priorities and the changing of administrations. However, the need for programmatic guidance continues as agencies increasingly look for ways to address landscape-level issues such as climate change.
As most members of the National Association of Environmental Professionals (NAEP) realize, NEPA is unique among the environmental statutes in that it allows broad consideration of environmental impacts, no matter the medium. If it is an environmental issue and the project affects it, it needs to be addressed in a NEPA document. Initial efforts to address climate change focused on air emissions. However, it quickly became apparent that climate change is more than an air-emissions issue. Environmental impact-assessment documents [especially Environmental Quality Act documents prepared in California (CEQA)] addressing transportation planning and overall city planning have analyzed broader issues related to how patterns of development affect greenhouse-gas emissions.
This flexibility to address emerging environmental problems is a strength of NEPA. In the 1990s, biodiversity was recognized as an emerging issue. The Endangered Species Act was limited in its ability to address biodiversity, because it only required agencies to analyze impacts on species that were listed. There were other issues such as state-listed species and overall ecosystem health issues that also needed to be addressed. The CEQ (1993) issued guidance on incorporating biodiversity considerations into NEPA. This report noted that the full potential of NEPA was in the linking of Sections 101 and 102, where the policy in Section 101—federal agencies are to promote sustainable development—could be implemented through the specific mechanism of environmental impact analysis in Section 102. In this way, the impacts on state-listed species and overall ecosystem health could be taken into account in federal planning and the needs of species could be addressed prior to their becoming endangered. The current environmental concerns over such issues as climate change, cyanobacterial toxins, pollinators, and the population crash of the monarch butterfly can also be addressed because NEPA is a flexible statute that promotes analysis of projects and their specific impacts on emerging environmental problems.
While NEPA has the potential to address emerging issues, there is always the uncertainty of impact assessment as a predictive science. To be effective, NEPA must go beyond just identifying the potential for a problem. Having identified a problem, one option is to take the precautionary approach and select the no-action alternative. But NEPA also requires analysis of the action alternatives. If there is a problem, NEPA initiates the process of identifying solutions (alternatives) that would have lesser environmental impacts or that mitigate impacts. While agencies cannot remove themselves from politics, NEPA requires agencies to go beyond the politics and consider the science. If the precautionary approach is unwarranted, science informs the decision because mitigation measures and their effectiveness are considered.
Although the guidance was issued 20 years ago, biodiversity is no less of an issue today than it was in the 1990s. In fact, it is likely a greater issue because we are living in an age of extinction, with multiple drivers of biodiversity loss (Naeem, Duffy, and Zavaleta, Reference Naeem, Duffy and Zavaleta2012). Broad-scale issues of biodiversity loss, ecosystem functioning, and climate change effects are perhaps best addressed at the programmatic level. Comprehensive mitigation measures, including best management practices and standard operating procedures, can be put in place at the programmatic level. In addition, monitoring programs and adaptive management to address impacts on a broad scale are best authorized at the programmatic level. These considerations make the anticipated final issuance of programmatic guidance timely.
Having identified the impacts and analyzed possible alternatives, NEPA is not done. The next step is to present the information in a manner that it can be understood by the public and the decision makers. Much discussion has taken place on how practitioners are not creating reader-friendly documents and the lengthy documents make us lose focus on the key issues. A good editor and a good summary are important but may not be enough. Oceanographer Gregory Johnson (Reference Johnson2013) distilled the 2,000-page Intergovernmental Panel on Climate Change Fifth Assessment Report into 19 illustrated haiku that covered the history of climate change, drivers of change, models, the future, and the potential for mitigation. Almost every illustrated panel is insightful for its simplicity and clarity. Perhaps the most haunting one considers how in 40 years our children will live in the world formed by our choices.
NAEP seeks to make environmental professionals aware of NEPA and its potential. It tracks developments at the national and state levels in the practice of impact assessment. The annual conference has a session on NEPA, NAEP’s webinar series addresses emerging issues, and this journal, Environmental Practice, also covers these issues. As you ponder the articles in this special issue, think about how you can contribute to better NEPA practice.
