The National Environmental Protection Act (NEPA) is one of the most powerful environmental laws because it requires the government consider the environmental impacts of major federal actions and give the public a chance to comment on those actions. NEPA is also an important environmental justice tool because it empowers individuals to communicate directly with federal agencies and offer alternatives to proposed actions.
To explain what NEPA is, when it applies, and how it can be used to protect communities, this chapter is divided into three main sections. The first section describes the types of projects that are subject to NEPA review and the steps the government follows to meet NEPA requirements. The second section provides focused information to help communities become involved in the NEPA process and have their voices heard. The third section provides links to additional resources for those using NEPA in environmental justice work.
The NEPA Process
NEPA requires federal agencies to consider the direct, indirect, and cumulative impacts of any “major federal action” on the environment, and the alternatives to that action. The NEPA process is the mechanism for the required consideration. This section explains the threshold concept of “major federal action” and then provides an overview of the components of a NEPA review.
What is a major federal action?
In NEPA, Congress recognized the wide range of federal actions that may cause significant environmental effects. NEPA’s reach includes more than direct federal actions like interstate highway construction. The types of actions that trigger NEPA review can include:
Federal construction projects
Adoption of federal programs
Plans to manage federal lands and resources
Federal agency funding of state, local, or private projects where the federal government has some control of the project outcome
Federal agency approval of grants, licenses, leases, and permits
As this list suggests, NEPA can be applied to any major project—whether on a federal, state, or local level—that is subject to substantial federal control and responsibility. Examples of federal control and responsibility may include federal funding, work performed by the federal government, or permits issued by a federal agency. In 2023, Congress modified what constitutes major federal action by limiting NEPA applicability to projects “subject to substantial federal control and responsibility.” There will likely be agency rulemaking and litigation to clarify and interpret what “substantial federal control and responsibility” means in the context of major federal actions subject to NEPA.
Some projects, like recycling facilities, may only require state and local permits. In cases where there is no federal involvement, or very limited federal involvement, NEPA does not apply. However, many of these projects are within the scope of other environmental regulations.
The three main goals of NEPA are transparency, informed decision-making, and giving voice to local communities. Ideally, these high-level goals are realized during a NEPA review, which is described in the next section.
When a federal project is proposed that triggers NEPA, the agency must determine what level of review applies before beginning the review process. The three main levels of NEPA review are presented below.
Categorical Exclusion (CATEX)
A Categorical Exclusion is not an actual review. Instead it refers to categories of actions that have been determined not to have a significant impact on the environment. For example, most renovations or repairs to existing facilities that result in only minor changes would qualify for a CATEX. If a proposed action falls under a CATEX, no further review is necessary unless extraordinary circumstances exist. Public input on actions covered by a CATEX are usually limited to the ability to comment on the associated posting in the Federal Register.
Environmental Assessment (EA)
An Environmental Assessment is a preliminary evaluation that an agency performs when an action does not qualify for a CATEX. It looks at the purpose of and need for the project, the project’s environmental impact, and alternatives to the project. The purpose of an EA is to determine whether the project crosses a threshold of significant impact. The agency must complete an EA within one year of determining an EA is required.
Although there are often opportunities for public involvement in the EA process, each agency is responsible for creating their own procedures to reach out to affected communities. This makes monitoring and engaging in the EA process challenging. The Environmental Impact Statement process offers much greater opportunities for public involvement, as discussed below.
There are two possible outcomes of an EA:
(1) If the assessment determines that a proposed project will not significantly affect the environment, a Finding of No Significant Impact (FONSI) is released and the project proceeds.
(2) Otherwise, an Environmental Impact Statement (EIS) must be prepared.
An EA is usually the most thorough level of review performed before work begins. Every year, the federal government undertakes approximately 50,000 actions that are subject to NEPA review, but only about 500 are deemed to require an Environmental Impact Statement.
Environmental Impact Statement (EIS)
An Environmental Impact Statement is a detailed assessment that is required when any agency proposes an action that has a reasonably foreseeable significant effect on the quality of the human environment. The preparation of an EIS starts with the publication of a Notice of Intent (NOI) in the Federal Register and includes a thorough “scoping” process.
During scoping, the agency decides what needs to be considered in the EIS, solicits input from other agencies and members of potentially affected communities, and considers what alternatives to the project are available. Next, a draft EIS is made available for public comment for at least 45 days. Then, the agency will consider and respond to all comments and issue the final EIS. The agency must complete an EIS within two years of determining an EIS is required.
The EPA’s office of Federal Activities evaluates the draft and final EIS before the lead agency issues a Record of Decision (ROD) based on the analysis in the final EIS.
In summary: NEPA Levels of Review
If the agency determines that the proposed action falls into a categorical exclusion, no further review occurs. The action proceeds without an EA or an EIS. Otherwise, the agency performs an environmental assessment. An EA serves the dual purpose of (1) helping an agency decide if an EIS is necessary, and (2) assisting with compliance when an EIS is not required. If the EA determines an EIS is required, the agency publishes a Notice of Intent (NOI), which signals the start of the EIS process, and then proceeds to prepare an EIS analyzing the impacts and alternatives of the proposed project.
NEPA and Environmental Justice
Major federal actions often affect underserved and under-resourced communities. Government agencies attempt to integrate environmental justice concerns into their NEPA review processes, with varying degrees of success. While the environmental justice analyses conducted by some agencies may include reaching out to residents to solicit input, members of affected communities can also take proactive steps to make their voices heard.
When an EA is conducted, agencies are required to make the assessment available to the public, but they are not required to follow a standard method to provide notice. Instead, the methods used to inform the public are tailored to the needs of each case. These methods range from holding public meetings to providing notice of the EA in the Federal Register to publishing notice in local newspapers. Although the objective is to notify all interested or affected parties, the lack of a standard approach to notification and the narrow scope of these assessments can limit the opportunities for community awareness and involvement. In contrast, the process for announcing and preparing an EIS is more formalized. While different agencies may adopt slightly different procedures, there are also many similarities. As the next section will demonstrate, the EIS scoping process is designed to require community input. Because of the wider reach of an EIS and the more standardized process that directly accounts for community input, communities engaged in the NEPA process should concentrate their efforts on the EIS process. The remainder of this chapter will share that focus.
How to Monitor EIS Activity
The following chart provides an overview of the steps an agency follows as it proceeds through the EIS process:
As shown in the graphic above, once an agency determines an EIS is required, the agency publishes a Notice of Intent (NOI) in the Federal Register. The notice of intent announces the proposed action and includes information regarding scheduled meetings and other opportunities for public involvement. A link to the Federal Register is provided in the “Additional Resources” section at the end of this chapter. You can sign up for daily emails from the Federal Register showing all the agency publications for that day.
Ideally, concerned community members would monitor the Federal Register and become aware of activities that could impact their communities as NOIs were published. Realistically, it is not always possible to dedicate the time necessary to proactively monitor for NEPA-related activities. To expand your community’s awareness of potential major federal actions, consider these options:
Build relationships with concerned organizations.
There is strength in numbers. Neighborhood and community organizations may already be monitoring for projects that could impact the areas where they operate. Similarly, reaching out to local and national environmental organizations is an effective way to leverage the efforts of people who are likely to share many of your concerns about potential actions. In areas where a proposed action may cause pollution to local waters, regional Waterkeeper Alliance members can be particularly effective partners.
Contact agencies proactively and ask to be informed.
While it may not be feasible to contact each federal agency to ask to be proactively notified of potential projects, consider which specific agencies are most likely to initiate actions in your area and contact them. For instance, if you live near a congested highway and have reason to believe that major road expansion may take place, contact the Department of Transportation and ask to be put in contact with a public liaison or added to a mailing list.
Reach out to your local city councilperson or county commissioner.
Local government officials can be good source of information regarding potential actions in your area. Your representatives may be able to connect you with others who can help. Your city or county’s website can help you locate the councilperson or commissioner who represents your area.
Attend local government meetings.
Depending on where you live, land use issues are discussed in public forums at the city level or county level or both. City Council meetings, County Commissioner meetings, and Planning Commission meetings can help keep you informed of proposed and ongoing projects in your area and give you a sense of which members of your local government and your community area could be allies in your efforts.
Look for signs of impending projects in your neighborhood.
In some cases, there may be actual signs posted to announce a project or a public meeting regarding a project. Less literal “signs” include the presence of surveyors, ground markings, property barriers, heavy construction equipment, and staging areas.
Review local media and publications.
Local new outlets can be a valuable source of information about potential federal actions. Projects that have significant impacts on an area, such as federal construction initiatives or new facilities like power plants, mines, landfills, or highways are likely to appear in news broadcasts, news websites, social media, and print media. Additionally, some agencies use newspapers and news websites to post official notices about proposed actions.
Visit agency websites.
Most federal agencies will have information regarding proposed actions on their website. A complete list of the websites of federal agencies can be found here.
The options listed above will help you stay informed about potential activity. Once an EIS is underway, it is critical to review the Notice of Intent or draft EIS and determine how to proceed. The EPA provides a searchable database of EIS-related activity.
You Found an EIS in Your Community, Now What?
By reviewing a Federal Register notice, contacting the agency conducting the project, or searching the EPA EIS database, you can find out about public meetings, conference calls, formal hearings, informal workshops, and opportunities to submit written comments.
Most of the opportunities for public participation in the NEPA processes begin with the scoping process, but it is sometimes possible to communicate directly with the agency about an action before scoping begins. This can be accomplished by requesting a preliminary meeting. A preliminary meeting is an early informal meeting to discuss the agency’s view of the “purpose and need” for the proposed action. The EPA’s Promising Practices document suggests that agencies should agree to such meetings to help focus meaningful engagement on environmental justice issues. Not all agencies will agree to preliminary meetings, and there is no standard method for requesting one.
Your main goal during a preliminary meeting is to identify information you can gather for the formal scoping process. Although a preliminary meeting with the agency may be a valuable tool to help focus your efforts, it is not a substitute for involvement during the scoping process.
Getting Involved in the Scoping Process
Scoping is designed to be an open process where the agency solicits input on the impacts of and alternatives to a project as it determines what issues it should analyze during the creation of the EIS. The goal of the scoping process is to inform the public and create opportunities for meaningful engagement.
Usually, at least one public meeting will be held during scoping. The meeting is normally scheduled near the beginning of the process. Details of the meeting will be available in the EPA EIS database and notice of the meeting may be provided in local publications, direct mail, and through other avenues. If an early informal meeting has already taken place, the information discussed should be used to determine how to engage with the agency in the most effective manner.
In all cases, it is important to prepare for the scoping meeting ahead of time.
Try to determine:
What issues you want to address.
What other people, groups, and organizations may share your concerns.
Which community members should speak at the meeting.
How to enlist participation and encourage attendance at the meeting.
What other materials, such as letters, emails, photographs, and comments, should be submitted before and after the meeting.
Note: This may require additional meetings and discussions with other community members.
When determining what information to present and what questions to ask at the scoping meeting, some key areas to consider are:
Alternatives to the proposed action (discussed in greater detail in the next section);
Impacts to the community; and
Ways to communicate with the agency as the EIS is being prepared.
NEPA can give communities a voice. As discussed in the next section, one of the best ways to use that voice is to propose or advocate for alternatives.
When preparing an EIS, agencies are required to analyze a reasonable range of alternatives that are technically and economically feasible and meet the agency’s purpose and need. Advocates can use this requirement to attempt to steer the agency to adopt a course of action that is more receptive to the needs of their communities and the environment.
Although agencies are required to consider reasonable alternatives, they are not required to adopt them.
To increase the likelihood that your alternative is adopted, consider the following:
Are there better ways of doing what the agency is proposing?
What could the agency do with the same level of funding if their primary concerns included the environment and communities?
Is there some way to achieve what the agency wants without requiring the action they are proposing at all?
Does your alternative proposal include enough detail to allow the agency to understand why they should adopt it?
Is your alternative science-based?
Have you included supporting documents and data?
Have you listed significant issues raised by your alternative?
Will you be able to submit your alternative early in the scoping process?
In addition to considering proposed alternatives, agencies are also required to consider “no action” (and any negative environmental impacts that would result from no agency action) and the “environmentally preferable” action. Again, they are not required to adopt these alternatives, but knowing that they will be considered may help shape your approach to proposing other alternatives.
What Happens Next? What Does Success Look Like?
When participating in the scoping process, it is important to be aware of the range of potential outcomes. The scoping process and associated community engagement meetings are not legislative or judicial sessions, and there will be no vote to determine if the project will proceed. NEPA requires that the agency go through a particular process, not that it reach a particular result.
NEPA requires the agency to solicit input to help guide their action and ensure they consider as many impacts and alternatives as possible. Success is unlikely to mean that the project does not happen – it is rare that an agency will choose to abandon an action altogether once it reaches the EIS phase of the NEPA process. However, as described above, effective community engagement can result in the agency considering better alternatives and providing more thorough explanations for its actions, and perhaps choosing an alternative that strikes a balance between achieving the goals of the project and allaying the concerns of the community. Additionally, the cumulative efforts of working with agencies over time can lead to more collaborative and meaningful involvement in future projects.
Commenting on a Draft EIS
Engaging with the scoping process is a powerful tool to help an agency create a better proposal from the beginning. But, often, you will find out about a proposed project later in the process, or once an EIS is published for public comment. Whether or not you have participated in the scoping process, it is crucially important to submit written comments on the draft EIS!
Written comments serve three important functions:
They make your concerns and suggestions part of the permanent written record of the project;
The law requires that the agency respond to comments it receives on the draft EIS, so you can be sure your comments will actually be read by someone at the agency; and
If you want to file a lawsuit regarding this project in the future, you must have participated in the notice-and-comment process by filing comments!
You must have also commented on the exact issue that you want to file a lawsuit about. Anything not discussed in your comments is considered “waived.” So, make sure to put all your concerns about the project into your written comments!
What happens if you engage in the NEPA process, participate in scoping, propose alternatives, and comment on the draft EIS, but the agency still adopts a course of action that will have detrimental impacts on your community? When the engagement process breaks down and you believe the agency did not abide by NEPA or meaningfully consider alternatives, there are two potential avenues of recourse – administrative appeal and filing a lawsuit.
Administrative appeals are filed directly with the agency that issues the original decision. In an appeal, the agency reviews their decision and affirms or reverses it. Reversals are rare, and not all agencies allow administrative appeals. Administrative appeals before an agency have different requirements for different agencies, and these requirements are often very specific and technical, similar to filing a lawsuit. Refer to the EJ Green Book Administrative Appeals in Georgia page for more information about the process in Georgia. Before filing an administrative appeal, it is strongly recommended you consult an attorney. Feel free to contact SELC, the Turner Clinic, or Hummingbird for a referral to an attorney.
Filing a lawsuit is an option when you have either exhausted your opportunities for administrative appeal or when the agency does not allow administrative review. In litigation, the court will consider whether the agency met the requirements of NEPA. The agency will usually win if they can show that they considered alternatives and did not arbitrarily arrive at their conclusions. To maximize your chances of winning, you must leverage the work you performed throughout your engagement with the agency to show that they did not act in compliance with the NEPA process. Litigation can be a powerful tool, but it is a long, difficult, and potentially expensive process. Before filing a NEPA lawsuit, it is strongly recommended you consult an attorney. Feel free to contact SELC, the Turner Clinic, or Hummingbird for a referral to an attorney.
The resources listed below provide additional information on NEPA and using NEPA in Environmental Justice efforts.