Environmental Law: NEPA - Overview

[00:00:00] Speaker 1: Hi, this is Professor McGuire, and welcome to the first of two lecture videos on the National Environmental Policy Act, or NEPA. This is one of two videos that will overview the topic of the National Environmental Policy Act here in the United States, in conjunction with the overall discussion of environmental law. And this follows our first three lectures on the overview of environmental law in the United States. So talking about NEPA specifically, in terms of an introduction, we talked a lot in the introductory materials on how to define the environment and what makes sense. And maybe there's a lot of ways and a lot of discussion that we had, but one of the ways that we came or approaches that we sort of used in order to think about the concept of defining the environment was the idea of this cartoon economist sort of view versus a cartoon ecologist or the economist versus ecologist points of view. And we understood that there are different ways that those points of view can help us think about how we want to define the environment. The economist may be looking at it from a very human-centered way of thinking about the environment environment where humans are at the sort of center. And that view looks mainly at sort of a benefit-cost analysis. So, you know, any action has relative benefits and relative costs. And the way that we sort of understand those benefits and costs are through a sort of analysis of, let's call them trade-offs, ways of saying that, yes, you know, there are obviously, if we do something, it'll have some impact and effect. But it will also have benefits. And the way that we usually measure effects and benefits from the economist's point of view, using this, again, this is a simplification, but from that point of view, we usually use humans as the sort of central measuring stick. And importantly, often we use, because we're using sort of an economic sort of parlance and a way of thinking, a framework, we usually look at markets. So we look at costs and benefits in terms of what we usually term direct measures of costs and benefits. And the problem with that is you have, particularly in environmental situations, something called externalities. And the best way for us to just think about those externalities are those are things that occur outside of market, direct market transactions. So they're often missed because the values that are inherent in those things, if we think about environmental things like natural resources, you know, if we have a market for using wood as an input for things that we want as a way to use wood to make building material, to make paper, to make other things that you know, what is based on, then we see trees as an input for that purpose. And usually we can measure its value from a direct aspect by identifying those uses, the cotton, you know, what, what, what's the value of wood for this purpose? What's the value of wood for some other human purpose? We don't normally have markets for, you know, trees relative to their sort of natural resource. We call them maybe provisioning services, ecosystem services. So anyway, from that economist point of view, we can think about environment from that perspective, which is mainly human centered. And then, of course, the ecologist point of view would be something that moves beyond sort of that direct economic valuation and includes maybe other considerations that ecosystem services as provisioning services, something we call maybe indirect direct services or indirect values. And then also just, you know, nature for nature's sake, even if it doesn't provide or it doesn't have an immediate and an obvious or even a, you know, a first order, but second order, but even maybe third or fourth order connection to human wellbeing, where it's not so obvious or the connections are a bit sort of, you know, down the line, a bit disconnected from the obvious, from an immediate, you know, human benefit. And sometimes we call those aesthetics, cultural and non-use values, particularly in terms of a category that we talked about in the introductory materials. So the economist, I'm sorry, the ecologist would take a much wider sort of perspective of what the environment is and maybe even categorize it outside of something that just is human-centric, is defined through humans at being at the center, that the environment has value even outside of human use, even outside of human connection. So that's a way to think about, you know, the difficulties. And we talked again, and you can see this in the introductory materials and the overview materials and videos, particularly for just looking at the videos here. But once we've decided, however, we're going to define that term environment, we think about that as a society. Once we've come to some definition of environment and what that means in relationship to any laws that we're going to create in relationship to the environment. So once we've defined that term and then we establish it and have to give it some meaning towards environmental law purposes, we must decide how to approach environmental problems. So we must start thinking about, okay, if we're going to define environment as this, uh, primarily, maybe it has a wider definition, but if we're going to be, you know, very specific in our definition of environment, and then we're going to start thinking about how we're going to create rules about how to interact and protect and, you know, and think about, then we have to actually start moving towards some approach. And we can say that most environmental laws here in the United States in particular are reactionary, at least historically, most of the environmental laws that we've created, however we've defined the term environment. And what that means is that they were developed to deal with an environmental problem after the problem occurred and was obvious. So, you know, we talked about this again in the introductory materials, but just, uh, some of the laws that we'll come into contact with, um, we think about pollution, for example, with air, clean air act, water, clean water act. Normally the pollution occurred, the thing that was, uh, degrading the quality of the environment. And in particular, relative to human wellbeing, the air was dirty and affected human wellbeing. The water was dirty and affected human wellbeing, couldn't consume it, that sort of thing. This is happening right now in terms of water quality, just as I'm, uh, going over this and discussing this, that's happening around the United States. It's been happening for years. Uh, there are a number of examples, uh, where even though we have these particular rules on the book that, you know, there are still problems with ensuring, uh, water that's, you know, capable of human consumption. So we think about clean water relative to human consumption, for example, clean air relative to human consumption. But the point is, uh, we've, uh, had issues in the past where we've made the air dirty and the water dirty in ways that, um, that harmed human wellbeing. So we passed laws once we've determined that that harm was occurring or got to a point where it became sufficiently, you know, um, entrenched in the public's mindset that it required a government response. It required the government to take action. So that's what I mean by reactionary. Most environmental laws have historically been reactionary. So there's been a problem and then we've, you know, um, developed an environmental policy and environmental law, uh, set of environmental laws to deal with that problem. The NEPA, the national environmental policy act is different. It's different in kind. It requires us to consider environmental impact before engaging in activities that may contribute to that impact. So what's amazing or interesting about NEPA and NEPA was passed in the early 1970s after a number of these environmental issues had come to light. And one of the reasons it was created as a federal law in the United States was to say, look, it's pretty obvious that we're not thinking about environmental issues before they happen, because we're now dealing with all of these environmental issues after the fact, after the problem has occurred. So we probably should think about this problem ahead of time if we can, uh, and try to imbue the notion within our activities, within our actions that we should, you know, think about environmental consequences before we take action. And so NEPA really derives as a really, I mean, it's probably, I would call it a, a, a major environmental policy. It is literally the environmental policy act, right? But it's a major environmental policy that's been legitimized into a statute that then creates an overarching sort of preemptive, instead of reactionary, precautionary and preemptive approach to dealing with environmental issues. So that's kind of what NEPA, NEPA stands separate from many of our environmental laws and being proactive and being sort of holistic in its approach. And so we'll talk about what that means, but, um, so it's a highly proactive environmental policy, which means by definition that it is controversial and we'll get into some of the reasons as to why it's controversial. As far as NEPA, as far as an overview, like I said, it was passed in the 1970s and that's well after human-caused environmental problems were identified. So again, it was something that was specifically thought about as a regulatory mechanism to start thinking about, geez, we should do something before all of these environmental problems occur. We should think about, uh, the consequence, the potential of our action before we take those actions and we're just being reactionary to everything. We're saying, oh, we've made a mess and now we have to clean it up. We have to stop this. We have to fix this in some way because often, as you can imagine something, uh, in policy and something that I study, we call path dependence. It's very hard often that once you've gotten on a particular path, once you've developed a particular way of being and you've been doing it for a while, it's very hard to change that activity, those actions because you have so many, not just the activity and actions itself, but all of the subsequent and ancillary and connected activities and actions that are closely related to what you've been doing. So, you know, if you've, uh, I, I just think of it off the top of my head, I mean, I just think of, uh, uh, you know, an energy company, um, oil, petroleum, uh, you know, we, we've now, uh, it's been well over a hundred years since we discovered oil terrestrially, not, you know, uh, but also oil in the ground, whether again, that's, that's in the ground in the ocean, under the ocean or in the ground here on the continent, uh, and elsewhere. Uh, but once we discovered oil as a relatively cheap and, um, you know, um, abundant source of, uh, fuel to start, you know, to use for fuel, to use for refining, for gasoline, kerosene, et cetera, but also for burning, uh, to create electricity, you name it, but as an input for energy. Um, once we've identified it and discovered it, um, we got on the track of, you know, really using oil and looking for oil and main and, and, and, and having oil be the main source of a lot of our sort of energy needs. Um, and you think of companies today, for example, you know, they do a lot of, uh, they spend a lot of money and a lot of time and energy trying to discover new deposits of oil. And then once they've discovered it after that expensive, all of those expenses, time, energy, and that sort of thing, then, you know, um, there's the possibility of developing that oil field and that, you know, development is meant to have, uh, you know, they assume there's X amount of quantity of oil in that field and that at a certain rate of extraction, once they've drilled and been able to access the resource, then the, uh, the rate of extraction would mean that over a period of years and decades and, you know, that they'd be able to extract sufficient amounts of, uh, oil based on reasonable assumptions of prices and, you know, cost of extraction versus the market, that sort of thing that, you know, there'll be a reasonable return on investment, but then that's usually in the, at least decades in terms of decades. But then you think about, so there's the expectation that this is, uh, you know, the way we do this business is we make a lot of investment upfront and then we get paid off over a long period of time. So that creates a kind of path dependence, but then you can also think it's not just that company for exploration and extraction, then it's all of the infrastructure, the movement of this stuff. We create huge infrastructure to move those products, whether that's by sea or by land through pipelines to move them to more infrastructure refineries that then refine that product, that, um, that basic oil, uh, hydrocarbon into something that is more usable, whether it's gasoline, et cetera. Uh, and then we then distribute and we have all kinds of distributions. We have other companies that are again with the infrastructure for distributing, um, that gasoline, for example, to places where you then take your automobile to fill up on gasoline. And then of course we have the automobile industry and we have internal combustion engines and you can just see this. You can see all of, that's what I mean by all these ancillary and connected aspects. So the point is once we get on a path of doing something, it's very hard to then look at it and say, geez, there are problems with this. We really need to sort of fix those problems because those fixes can be very time consuming, very expensive and politically really difficult to implement for one of the reasons being that we've just have so much economic activity wrapped around it. Once we decided to use oil and really develop oil as a main input of energy, uh, all of our systems are sort of built around oil. So it takes a lot to sort of move away from that. And that's what I mean by NEPA, you know, some of the thinking being again, that before we start down these new roads of doing things, maybe we should really think about the potential environmental consequences to the extent that we can, the extent that we understand what they are. You know, when we started using oil, for example, or coal, we had no idea that, you know, extracting carbon from a stored resource underground and then moving it into the air would cause global issues, would cause climate change. We, we just didn't understand the, our level of understanding and the scientific, uh, uh, acuity and understanding of that was, uh, it, it would be many, many decades before we started really observing that there were concentration increases of carbon. Um, you know, so, uh, again, we don't always know ahead of time some of the potential consequences of our actions. And we certainly understand that, but to the extent that we can, uh, before we take actions, NEPA is really there to, to try to inform us about, geez, before we do something, uh, there are potential problems with doing this. So that's really, I think, um, if we wanted to think about what NEPA is meant to do, that's really what it's meant to do. Uh, just as a side note, it was signed into law by then president Richard Nixon. So I just, uh, I bring that out because, you know, there was once upon a time, uh, you know, there was not really, um, much dispute in our, uh, political bodies in the United States. If we just, the two main parties, the Democrat and Republican parties, there was not really a lot of dispute about this. Um, at least at that time that this was, uh, easy consensus because it was obvious. Uh, and we, at that time, our country seemed to be very willing to accept certain facts just as they are that just as facts, you know, taking them as they are. So, um, this NEPA was signed into law by president Richard Nixon, who was a Republican. Uh, and, uh, so that's something that we might just take note of, um, in terms of the idea of a, would call a bipartisan support maybe, uh, behind these laws at that time, including, uh, what ends up being a very controversial law today, which is the National Environmental Policy Act. And if we look at the key language of the statute itself, it applies to any major federal action. What I've done is I italicize these terms there. So major federal action and want to be clear when we look at these words, you're going to say, and you should federal action might seem more clear, might seem major what's major, right? What is a major, right? But this is literally, these are the, this is the terminology of the statute itself. And we understand, um, we've already said this, that words by their very definition, by their very makeup, they are ambiguous. They are subject to more than one meaning. And we need to understand that. So that ambiguity creates, you know, legal ambiguity. What is a major action? I want to do a minor action, so I don't have to comply with an EVA, right? My action is not major, or it's not a federal action. So let's be clear that, um, when you first see these terms, you're going to understand that they are ambiguous there. Uh, the meaning of these terms isn't obvious. So any major federal action, significantly affecting, not just affecting, but significantly affecting, uh, I have here human environments, the environment, but it's really imbued to be the human environment. So any major federal action, significantly affecting, let's just call it the environment, but the, really the, it's human focused, the environment relative to human wellbeing is what I mean by that. So any major federal action significantly affecting the human environment, that is the key language, those trigger terms and that then identify if those terms are met, then NEPA applies and it applies proactively before any action is taken. So we can think of the scope of this statute, right? We can think of these terms and we can say, wow, any major federal action significantly affecting the environment. Wow. What does that mean? That could be huge. It could be limited, or it could be huge. It could apply to very few things, or it could apply to everything depending on how we view those terms, how those terms are operationally defined. So let's think of the scope of that statute, uh, under these term, under this terminology. And we can also consider the ambiguity of those terms, as I've been saying. In terms of the purposes of NEPA, we'll come back to these terms, by the way, uh, but, and so just have them in here, major federal action significantly affecting the environment. And when I say the environment, NEPA applies to mainly, you know, it has an expansive view of the environment, but we can also think of the human environment, but major federal action significantly affecting the environment and think of the scope and then the ambiguity in those terms. In terms of the purposes of NEPA, it really has a dual purpose. So what I mean by purpose is what is its intent? If there's a, if there's an overarching intent that, you know, Congress is, is, is identifying here from a policy standpoint, what is it really meant to do, right? We understand that it wants to understand environmental consequences before we take action. So how does it do that? What's its intent? And we have a dual purpose sort of intent. There's an external function to NEPA, and this is important to know, particularly from a policy perspective. That external function is really to inform the public about potential environmental impacts of a proposed government action, right? And again, it's government action, right? Not private action, but government action. Although we can define what government action is. I'm a private developer. I need to get a permit. Oh, that permit identifies my private action as now government action because of the permitting process. Wow. That's expansive. If I thought of just the government acting, I would say it's more limited, but you're telling me that private individuals, if they need a permit, if they get financing that has some government role, wow, that starts getting expansive. So anyway, the idea is to inform the public about potential environmental impacts of a proposed government action. And this includes the important public notice and comment requirements under the Administrative Procedures Act. Now, I talk about this idea of public notice and comment or what we call informal rulemaking often in terms of the APA, the Administrative Procedures Act. I talk a lot about this in administrative law. That is, of course, that the students in the MPP program and many students in the certificate program choose to take. MPP, it's required. I have a number of videos for those that are not in these programs and are interested and they want to understand a little more about what is this public notice and comment. And again, we'll get into it a little more here, but it's really well explored in the Administrative Law lectures. I have a playlist, Administrative Law. Also, just under the video lectures, you can see some of those Administrative Law, including internal administrative procedures, external, you know, and rulemaking process. So if you're interested, you can see some more of that there. But the idea behind all of this, this notion of public notice, it's a transparency. This external function is to say, "Look, before we engage in some activity, we want to understand if there are environmental consequences." And part of that process, we want to understand and then, you know, make transparent that understanding as to whether there are or are not potential environmental impacts. And so one of the ways that we make it transparent is that we have this external function where we inform the public. And we do that mainly through public notice and comment requirements under different federal laws. But the point is, we put it out there. We put out there this, the findings under NEPA, before we take actions on a potential project. And what that does is that ensures not only that the proposed actions are evaluated for environmental harms, but also those findings are made apparent to the public. So we have that sort of, is there going to be any environmental issue? But importantly, let's not just keep that between us. Let's not just do that as a sort of internal dialogue. Let's go ahead and report on our findings, good, bad, or indifferent to the public. And that is an incredibly important function in a democracy, is that government activities and government thinking is made public and transparent to who the government serves, which are, which is the public, which are the people, right? So the people should be aware, particularly those people that might be affected or might be interested. It doesn't matter. It could be local, it could be national, whatever the activity might be, that they're involved in that process. And the minimum of involvement should be the ability to know what those findings are, what that information yields. So if I'm going to do an environmental analysis of potential impacts before an activity, before I make a decision, before I engage in that activity, I'm going to make those environmental impacts. If they exist, if they don't exist, I'm going to make all of that analysis and findings available to the public. That is the external function of NEPA. It's one of the main external functions of the dual purpose of NEPA. The internal function is, you know, that's more of internally within the government. And the idea here is that, look, better information, right? Yields better results, better decision making. So one of the internal purposes, the internal function purpose of NEPA is to improve government decision making. It forces government to weigh its potential actions against the likely environmental harm that can occur. And that makes sense. I have better information. I have information before I take action. It allows me to then use that and bring that information into my calculus, into my decision making process. And ensures that environmental assets are part of the decision making process. And in that process itself, elevates the assets to a more direct economic comparison. I mentioned this a little bit in the introduction to this video, but I also, we get into this in a lot more in the overview of environmental when we're trying to define the environment. And we talk about the environment from a human standpoint, that economist standpoint versus an ecologist. Remember this, and in those overview materials, I have here recall TUV equals DUV plus IUV plus, it's supposed to be plus, sorry, NUV. So that's a total use value is a function of the direct use values, the indirect use values and the non-use values that again should be a plus, not an equals NUV. So that's an equation that we talked about in the overview. And what I mean by that is that often the economists focus on those direct use values, something that we have direct markets for, where we have, you know, dollars. It's easy to attach dollars and cents to something because we have a market for, we have an ongoing human market for it. So what is the cost of a footboard of timber? Well, I can tell you that because we have a national market for, we have a commodities market. I can tell you what it's going for, what type of timber, you know, what's the futures contract, blah, blah, blah. And it's in dollars. They're all equal apples to apples comparison, that kind of thing. So I can tell you because there's a market for it. What is the value of that tree as carbon sequestration? Oh, that's more difficult. What is the value of that tree in terms of providing biodiversity habitat? Oh, that's more difficult because we don't have a direct market for that. It's harder for me to tell you what those dollars are. Some of those provisioning services, that's the IUV, the indirect use values, and then some of these sort of aesthetic and cultural, those non-use values. The point here is that when you do an environmental analysis, you think about all of those things. If NEPA is working at its best, it's thinking about all of those different types of values. And in the process of thinking about all those different types of values, it brings forward those, normally those things that we normally don't directly consider. So NEPA forces some of those indirect and non-use values and maybe even some of the direct use values of some environmental assets into the conversation, into the decision-making process, when normally they would not be considered as part of the decision-making process. So that's a really important internal function. And then finally, this promotes a consideration of what we call an alternatives analysis. An alternative analysis is maybe one of the most important functions of NEPA, ultimately, which is, look, we thought this was a good idea. We were going to just, you know, we were going to just take over this portion of forest. We were going to tear down this portion, and we're going to build a highway through it, a portion of a highway. And that made sense to us. But now we've done a deeper analysis and we realized this is a biodiversity hotspot and there's some incredibly important species here that are endangered or that contribute to the overall well-being of pollination, which is really important for that huge agricultural sector that sector that we have over there because it requires natural pollinators. And this is an incredibly important habitat for those pollinators. If we get rid of this, then we affect that. That's not good. So we should really think, or, you know, a different one is, even if it doesn't have some direct or provisioning service value for something we, you know, we have a market for, it's like, this is an incredibly important habitat for, you know, some cultural and aesthetics. There's a long history of use of this area or having this area available for, you know, for spiritual considerations for certain groups of humans. And therefore we didn't know that. And now that we do, geez, it's, it wouldn't be hard to just move that highway, you know, a little bit this way or a little bit that way in order to preserve this area. So what it does is it forces a consideration of things that normally might not be considered. And as a result of that, it creates this alternative analysis. Can we do what we want to do, but can we do it in a different way? Can we make it smaller? Can we change its location? Do we really have to do it? All of these are real things that we can consider now that we've thought about some of these environmental implications through NEPA. So that's the notion of the alternatives analysis. In terms of the timing of NEPA, so when does NEPA occur, right? Section 102 to see of the federal statute of NEPA, it states specific, it states effectively that environmental analysis must be done when there is a recommendation or report on a proposal for action. Now, this is important because think about it. When would a recommendation or report on a proposal for action take place and a proposal for actual action? Probably after a lot of planning has been done, right? A lot of work, a lot of sort of transaction costs, to use the economic term, have been incurred. Government has taken time and energy, experts paid money, so on and so forth, right? We've expended resources and, you know, thinking about, hey, we really want to do this and we've looked at the area, we've done the surveys, we've done the hydrology, the geology, the, you know, all of the sort of engineering specs and every, I mean, we've done everything, architecture, the whole nine yards of whatever it is that government wants to do, whatever the proposed action is. And now we have a report, a recommendation or report, right? Because in order to get to the point of a recommendation, you have to know a lot about it. You have to know details and to know details, you have to spend a lot of time and energy. So technically, the timing of NEPA under the terminology here is, wow, this is, when does this occur? Does this occur, you really want to do it before the action and certainly this is, right, a proposal for action or a recommendation or report is certain before you actually take action, but it's after a lot of time and energy has taken place. So the report suggests, I'm sorry, the language in the statute suggests that you can do a lot of things before you do the environmental analysis. And the question is, does that make a lot of sense? So practically, we can say, when would you want to do a NEPA review? Would you want to take all of those preliminary actions before you do an environmental analysis? Maybe sometimes you would, because a lot of that preliminary analysis would tell you whether or not it makes sense. So if that preliminary analysis suggests, yeah, this isn't really feasible, then there's no need because you're not going to move forward in any way, even if there, it doesn't matter what the environmental consequences might be because you're not going to take action. You're simply not going to do the project for other non-environmental reasons, for, you know, other technical issues, for example. So maybe it does make sense that you can allow all of those technical feasibilities to occur all of that time and energy before you do an environmental analysis. On the other hand, of course, if you do the environmental analysis first, you are spending time and energy for sure. NEPA says you have to anyway, so you're not doing something you wouldn't otherwise do. And that would then tell you or really inform whether or not you should move forward with this project, can feasibly move forward the project and, you know, what might be at risk in moving forward the project from an environmental perspective. That does take time and energy. And now maybe under this scenario you say, well, that makes sense. So maybe sometimes you look at what's it going to cost to get to that sort of recommendation or report for a proposed action without thinking of environmental consequences. So if we don't do a NEPA analysis first, what's it going to take for us to get there? Time, energy, what's the cost of that versus what's the cost of the environmental analysis? And maybe it's, well, if the recommendation report technical stuff is less than what the environmental analysis will cost, let's do that first to see if we actually do it regardless of environmental consequences. Or if the environmental analysis seems like it would be cheaper, you know, than the technical analysis, maybe we'll do that before we do the technical analysis because, you know, so maybe there's that, you know, interplay where you think about, well, I would do one versus the other depending on what's the cheapest avenue, what's the most cost efficient way to sort of move forward. NEPA first, you know, environmental analysis first, or start technical analysis first. But the timing of NEPA says that you can do these technical analysis is just before you actually physically start taking action, you really have to consider the environmental consequences. So the practicality here is after you have spent considerable time and resources on developing a project before a preliminary analysis, right? So maybe you want to think about that, you know, which one is, you know, which ones ends up being cheaper, as I just summarized. And when you know an analysis must be completed, then the question is when to conduct the analysis, right? So at some point, if you do the technical analysis, say, okay, everything looks good. Now we have to do the environmental analysis. And the question is, when exactly do you do that environmental analysis? And many, even though the language is not specific, many argue the assessment should be done either before or simultaneous with the review of the proposed activity. So that's sort of a, if you want to call that a best practice, or even what has been imbued through judicial decisions related to the timing of NEPA, when NEPA should occur. Sometimes you have agencies, you have, you know, actions, whether private individuals or government individuals, private actions approved by government processes or, you know, government actions directly. You often have where they're moving forward in a way that it looks like that they violated because they're actually doing some of the activity, some of the act, you know, some building development, preliminary site removal, that kind of thing. And it's like, no, no, no, before you do anything, NEPA requires an environmental analysis, like, no, this is just part of the actions for the rec. We haven't made a recommendation report on a proposed proposal for action. So there is this space, and there's a lot of litigation that occurs as to exactly when NEPA should occur. For our purposes, we understand what the language says as a general overview. And then we want to think about some of the policy implications. Just what's good practice? What would make sense under these terms? You know, how far can you go if you don't want to do a NEPA analysis until the last moment? And how early can you go? There really isn't an early, you can go as early as you want, right, to consider environmental consequences if you want to be pro-environment and precautionary in your approach without doing any other sort of analysis or any preliminary work towards a recommendation. You can understand people that want to move a project forward. They would love to do a lot of activity, a lot of physical activity that would be considered part of the actual action, you know, part of the project. Do a lot of clearing, a lot of removal. If it's building something, right, do a lot of that first and say, no, no, no, this is all part of just getting a recommendation or report or a proposal for an action. So we're not there yet. You know, let's go ahead and tear everything down. Let's go ahead and develop the site, you know, to a point where effectively it's just, you know, there's nothing there anymore. And so the environmental analysis is easy because there's no environment to analyze. That's a, you know, so there's any way that you understand that this world can exist where there's this sort of like, because NEPA is controversial in its nature, that people want to sidestep NEPA and use the language and the ambiguity in the language of the statute to try to get there. So, but in terms of timing, we can generally think of it like this. We can say, let's break if we had a spectrum and let's see here on the left side versus the right. So for moving from this direction to this direction, we can say, look, if this is the side of the spectrum where there's less likely a NEPA violation, and this is the side of the spectrum where there's more likely a NEPA violation in terms of timing. And we can say that, you know, before the project, of course, is best if immediately before or just as project plans begin. So this is the, you're really very much within NEPA scope for sure. And this is a summary of, there's a lot of case law that applies here. And just generally speaking, from again, our larger sort of removed or large scale perspective, our more policy-orientated review of environmental law here is that we're saying that, well, if you're, you know, if you're certainly immediate before and you start doing anything and you're well before you do anything is the first thing you do, then you're, you're very, very well within NEPA requirements. If you start doing it during the project, right? If you're actually engaging in some project activity, right? But you're then claiming it is really preliminary stuff here. This is really before, you know, I'm doing some assessments, and some technical assessments. And so I haven't come with a, we don't know if we're going to do this. We're just doing a lot of preliminary things to determine whether or not we want to do this. It's all site planning, that sort of thing. So it's best if it's simultaneously, but before major activities. And the key here is this, this notion of, excuse me, this notion of major activities. What is a major activity? And that is context specific. It's just difficult. We don't really have time right now to go into what might be considered, but there's a lot of material. There's material in the course. There's material in the, in the required texts and others can determine, others can review major activities, timing NEPA. You know, you can look into a lot of what that, there's a lot of materials on that. But you know, your best if, so during the project, you start getting into sort of this yellow zone where it's like, you know, it's kind of a, it's iffy whether or not you violated NEPA's timing requirements. If you've, if you started the project in any way and you start engaging in major activities, but you haven't done a NEPA analysis. And certainly after it's clear that the project, no matter how you want to define it, even if you, the project, the proponent of the project say, no, this is still just, you know, preliminary site development as a matter of determining whether or not we want to move forward. You know, if the project has obviously begun in any meaningful manner and you have not done an environmental assessment, then you are in violation, clearly in violation of NEPA. So this is a way of trying to just understand programmatically, you know, NEPA's timing requirement and what that looks like. To what does NEPA apply? What does it apply to? NEPA applies to, going back to the terminology we had before, any major federal action significantly affecting the environment. Mainly we talk about the human environment, but it's more expensive than that. So there are a major, there are terms. Major federal significant environment. What does that mean? So major, generally speaking, major is context dependent. And you see this in the case law, you know, and the simple example that's provided here is a 30 story building, right? So a 30 story building sounds major to almost everybody. However, in Manhattan, in New York City, is a 30 story building really major? Is it, is it, you know, this is the context nature of the term major, right? Well, there are a lot of 30 story buildings. There are a lot of buildings that are higher than 30 stories in Manhattan and New York City. So, you know, that's hard. Maybe not so much. Maybe that, you know, a large building like that is just average. It's just normal in the context of New York City. If you're developing a 30 story building in a small town that has no buildings above four or five stories, that definitely is major, right? So that's what we mean by context dependent. That's just one simple example. There are many other examples. So you have to take context into consideration when you're defining major under NEPA. So remember NEPA applies. So if it's not, if it's considered minor, there's no NEPA analysis. It's not required if it's considered a minor government action, minor federal action. Okay. So there's that context there. Federal, this is, so I talked, I quickly hinted to this. It's clear when the federal government is doing things directly, but it also, NEPA also, again, by case law applies to indirect federal actions, not just direct. So it's pretty expansive. So what they call this is the nexus of federal involvement. So what is the, you know, what is the role, what, what, what role does the federal government have? And again, as I said, under the case law, it is expansive. So what that means is that NEPA hasn't been, hasn't been viewed. The statute hasn't been viewed as restrictive, as very limited. It's been viewed and interpreted as extremely expansive that any government involvement, generally speaking. Now, what that usually means is in terms of mandatory versus discretionary federal actions. So, sorry, mandatory generally refers to where the federal government must do something. And the federal government has no choice under a statute or some other regulatory entity. It is required to act. When there are mandatory actions, then there is no, there is no federal action because it's not discretionary. Discretionary means the federal government has a choice. So when we say nexus of federal involvement being expansive, and then we use the mandatory versus discretionary federal actions, we, we can see that any approval process where the federal government can say either yes or no, for example, or where the federal government is within the process. So we think of federally backed loans, you know, small business association. So we think of financing for a project, not permitting necessarily, but financing. Anytime where there's a yes or no, or maybe, or where there's a choice that is discretionary, NEPA certainly applies. That's a federal action because the federal government is taking an action that is discretionary. It has a choice where there's no choice and the federal government isn't taking, you know, making a, it, it, it has a mandatory action. Then it, it is not a federal action vis-a-vis under NEPA because there's no choice involved. So the thing that we should remember here is that when it's major context dependent, federal expansive, it applies to so many different things. Um, so many different activities that you normally wouldn't think of, like I said, it importantly, it applies to a lot of private actions where they have to get federal permitting, for example, or even if a private actor is getting financing that is supported through a federal program. So it is very expansive in its approach. NEPA can apply to many, many things we normally wouldn't think of as federal action. In terms of significant, there's a lot of detail, by the way, again, in the materials, the course, and in the text, there's a lot of material to help flesh this out in more, in more detail, including the lecture notes, which are pretty, uh, pretty detailed. So major, federal, and now significant. Significant is also content context dependent, just like major, uh, analysis. And, um, one of the ways of, of thinking about that is we talk about in the textbook is segmentation. So I don't know if I have a note. So segmentation is a process where, for example, this has been done in a number of cases where, um, a proponent of a project puts forward, uh, uh, say the entire project is 100 new miles of highway construction, a brand new section of highway, or even a new highway in and of itself. Segmentation is where you seek permitting for just a small portion of that highway, just a very small. So what you're trying to do is you're trying to say, look, I'm trying to show that in isolation, even though I know that this is going to be just one part of a, a larger, a much larger project. I'm trying to get it under this notion. I'm going to, I'm trying to remove significance here. I'm trying to make it a minor, not a major, but a minor, right? Uh, and that it's not significant because it's just this small little piece here. So, uh, segmentation is where you try to get permitting for just these small portions at one time, uh, in store, instead of looking at the entire project. So significant is just like major. Um, but again, it's a contextual aspect. And again, the case law draws out examples of what's been considered significant. What hasn't again, just like major, you know, are you building something large in New York city versus something large in a small town? Is this just a portion of a larger project? Like in and of itself, that little, you know, mile portion of highway means nothing. And then you're not just building one mile that leads to nothing that just sort of goes dead and doesn't end up anywhere. It doesn't connect to anything. Obviously, this is a portion of something much larger. So, uh, significant is contextual, just like major. And then in terms of environment. So I've said that the human environment, right? And we know that there are physical aspects of the environment, right? Like air, water, et cetera. And that certainly NEPA applies to those sorts of things, but there's also cultural, historic, and aesthetic values. Most of the time NEPA is puts humans at the core center, even though it applies to things that are not usually direct economic values, those indirect. And also here we have the non-use values, which are cultural, historic, and aesthetic, but they're all human centered, right? A lot of cultural values, human centered, historic values, all related to human history and aesthetic values, right? How humans define aesthetic. So they're very much incorporated into humans. And of course the physical air, water, et cetera, is most directly related to human wellbeing, just like the Clean Air Act, Clean Water Act, et cetera. So in terms of environment, it does include the physical, but it's important to know that NEPA also applies to the non-physical, these cultural, historic, and aesthetic values as well. That's really important because it's a more expansive definition of environment. It's just not the natural environment. It's also a human associated context of environment, cultural aspects, historic aspects. So that's important to know that NEPA applies to those as well. It is an expansive statute. And as a policy, right? It's the National Environmental Policy Act. As a policy, a policy that's been imbued into law, that kind of makes sense. You want to be as expansive as possible because it's just a preliminary assessment. And that's where we get to next. So to what does NEPA apply? And now what is the process of NEPA? And this is important. So NEPA, if we were to think of this sort of as a, again, this is a sort of drop down decision list, right? Yes, no. So we can start with this first question. Is this a major federal action that may significantly affect the environment? Because you don't know if it does because you haven't done it and you haven't done it in a post action analysis of effect, but you're looking at it as a preliminary matter. Is this what we consider major federal, see those terms, right? Significant environment, right? That may have an effect on environment. The answer is yes. Then you have to engage in environmental assessment. NEPA requires more action. If there's a no, then you have what's called a FONSI or a finding of no significant impact. And that means the project can proceed, right? So you either get to an environmental assessment on one hand, if there is the potential for a major federal action. So yes, it's major. We define that. Is it federal? Yep. Does it have the potential to significantly impact our definition, our natural or cultural historic aesthetic environment? The answer is yes, environmental assessment. If it's no, FONSI. Under the yes, assuming environmental assessment, the no is we're done. Then the environmental assessment, which is a preliminary environmental review, it's not very in depth, right? Does the environmental assessment, that preliminary review, show a federal action that will likely have a significant impact on the environment? Again, using the same definitions, operational definitions of those terms and the infinite impact environment. The answer is yes. So the EA as a preliminary assessment says, oh, there may be significant impacts here. Then you have to do a full blown environmental impact statement, very time consuming, relatively expensive. So you have to do what's called an EIS or environmental impact statement. If it's no, if that initial environmental assessment, which is more preliminary, more superficial, finds no significant impact. And again, remember, all of this is going through the Administrative Procedures Act public notice, all of this process. And what's interesting about the public notice is that every time you come up with an assessment, you provide that to the public. So even if you say, look, no environmental assessment required, finding no significant impact, there's the opportunity for public notice and comment and responses and say, nope, that's a lie. There is the potential for environmental, you know, we private citizens, we, you know, scientists organization, et cetera, we can show you that there's the opportunity for, you know, an environmental assessment, so on and so forth down the line. But anyway, does the EIS show federal action that will likely have significant impact? If it's a yes, then the full blown environmental impact statement, no, Fonzie, done. If it is yes, then the environmental impact statement, that very time consuming and expensive process, does the EIS show the federal action will significantly impact the environment? If the answer is yes, then NEPA requires that the proposal must consider alternatives. We talked about that, that alternative, that internal function, right? The alternatives analysis, including importantly, the no action alternative, which means forget about it. We're not going to do this project, not here, not like this, not like we proposed. If it's no, if the EIS shows that there is no federal, that there is no significant impact on the environment or likely significant impact on it, then it is a Fonzie. And the project can proceed. Now, what's interesting is that the NEPA process throughout this entire thing, even when there is a yes, and you must consider alternatives, including the no action alternative, NEPA requires you to go through that no action alternative analysis. And the question is, what happens once you've done that no action alternative? So the effect of NEPA, finally. NEPA is a procedural statute. So it's meant to force you to do things, to consider the environmental impacts. And the question is procedural versus substantive. What's substantive? Substantive means that you come to a specific outcome and then it enforces that outcome. NEPA certainly enforces this procedure, this procedure from top to bottom. It enforces that process of going through this analysis. But even if you get down to the yes, it must consider alternatives, including the no action alternatives. The question is, what happens? So it's a procedural statute. It requires potential environmental harms to be identified and considered. But it does not require a specific action be taken. It does not prevent an environmentally harmful activity from occurring. That is incredibly important. So even if you do the no action, the alternatives analysis, including no action, once that's been done, you still can proceed with the project. NEPA does not prevent you from proceeding with the project. It just requires you fully consider the environmental consequences. So other statutes may prevent the environmental harm that NEPA brings out and identifies. It may. There might be other laws on the books that then say, well, that's a kind of harm that we're not allowed to do. Or you need other permitting for that. If you find a kind of harm that says there's a water resource here, and there's likely to be pollution of that water resource, and you don't have a permit. Now the Clean Water Act applies, so there may be prohibitions there. And the Clean Water Act may prohibit you, for example. But NEPA itself does not prohibit you. It just requires you to do an environmental analysis. So there may be other statutes that may prevent the environmental harm identified. Or the public notice, that notice and comment where you're constantly, you know, informing the public along the way, it can demand environmental protection, change or stop the action project. That's a political process. That's just public outrage. So you may, by informing the public, get them riled up to the point where they say, I don't care if you can still do this and you haven't violated any other environmental law in doing it. We simply don't want this done anymore. And that may have an effect on moving the project forward. But NEPA itself does not require a specific outcome. The internal external function of NEPA aids in environmental dialogue that is incredibly important within and outside the government, ensuring environmental values are considered. That may be the most important part of NEPA, is it brings into the dialogue, both internally within the government function and externally to the public, environmental considerations. It brings those environmental considerations into the decision-making process. Incredibly valuable and incredibly important. Because before NEPA, there was no requirement to bring in any of these environmental considerations, even if they were the kind that were directly related to human well-being. No requirement before NEPA. So NEPA is incredibly important in that way. And that dialogue is all important in starting to develop a notion of environmental, the consequences of our actions from an environmental standpoint. And in terms of judicial review, it's also important to note that a meaningful alternatives analysis, including the no action alternative that's required, say you do the EIS, and you decide that there's a chance to have environmental impacts, significant environmental impacts. Then you go through the alternatives analysis, and that includes the no action alternative. Even when you do that, even though NEPA says, even in that alternative analysis, it's just an analysis. It doesn't require an outcome. You still, even if the analysis says, yeah, it's pretty bad, and no alternatives may be superior to protect these environmental resources, but we're going to do it anyway. There's no prohibition. NEPA doesn't say, oh no, because the alternatives analysis showed, there's still going to be environmental impacts, and they could be significant. Then you can't do it. NEPA doesn't say that. You're still allowed to do it. But in that process, and in the process of ensuring that the government agency has fully considered the alternatives, including the no action alternative, in that process, in and of itself, that sort of public notice and comment, and maybe challenging the government, the public often challenges during this process and notice and comment the government's analysis. Hey, you haven't done enough alternatives analysis. You haven't looked at these other things. You haven't really considered what they call a deep look at the no action alternative. You've done a superficial look, but not a deep look. In that process of enforcing the procedural requirements of NEPA, that judicial review process, that meaningful alternatives analysis, that can sometimes be used to affect change in environmental plans, where finally it's sort of like using the judicial process as a means of the public showing that they're not agreeable to this project moving forward because of these environmental consequences. And that can be a strong signal to whether or not that project moves forward. As a matter of final thoughts, now that we have a basic understanding of NEPA, what it is, what it applies to, what it does, and what it doesn't do. We should know NEPA's, you know, purpose, what it's intended to do. It's an environmental policy planning statute. It's proactive in nature, and it's meant to consider environmental impacts on our society. We should understand some of its process. We identified the process, right? How you go through NEPA, right? Major federal action, the potential to significantly affect the human environment. Go through that process. Does it, you know, is there a possibility? Environmental assessment versus FONSI. Environmental impact statement and more in-depth versus FONSI. And then alternatives analysis, including no action alternative in terms of FONSI. So we see that process play out. We should know that. The effect of NEPA, what NEPA really does is it forces you to consider environmental consequences, but it doesn't demand a particular outcome. And so we should know those basics, and we should also consider the policy implications. And that mainly is, you know, if we think about NEPA, practically speaking, it really speaks from the economist versus ecologist to the ecologist argument. It really brings the environment to the forefront of decision making. And that's why I brought forward here our sort of, we did this as an overarching sort of, when we did our introduction into environmental law, we talked about the idea that there's this sort of conceptual sort of chart where the environment creates the outside, the limits of human decision making. And then we have our social institutions, of course, and then we have our economic considerations, our economy, which sits within our social institutions. And our social institutions are, to some degree, sit within our environmental constraints. And that's really an ecologist sort of point of view, I would say, that the environment creates the outer constraints by which our society functions and certainly by which our economy functions. And so NEPA really is about that. NEPA says that before we, you know, are, we, we make decisions and decisions that have direct economic implications, we really need to consider these environmental constraints because we can really affect them. And if we do, that really then affects, it has this feedback that affects our ability to make societal decisions and certainly affects our economic, our long-term economic well-being. You know, we might be making short-term sort of trade-offs or short-term economic gains for long-term economic harm that far exceeds those short-term gains, you know, because that harm is sort of aggregates over time and then it's there and, you know, that sort of thing. And we can think of examples of that. So the idea is that NEPA really sort of follows, follows suit with this sort of overarching goal here. And that's important to know that NEPA really, if we were to say what, whether NEPA really sits within the sort of economist argument that we used in terms of defining the environment from our overview versus the ecologist, it probably fits better within the ecologist point of view. So again, bringing the environment to the forefront decision-making. So that's all for our first part of NEPA. We're going to talk about NEPA in more detail in terms of some of the remedies in our second, our second video. And so you can sort of get this basic understanding from this video and then we can move forward to some of the sort of more details about really what are the remedies under NEPA. So when NEPA is violated, what happens and what's available and that sort of thing. So look forward to doing that and spending more time with you and hopefully you enjoy this. Thank you.