In 1978, eight years following the enactment of NEPA, the President's Council on Environmental quality (CEQ) released its formal regulations guiding agency compliance with the Act. Found in Title 40 parts 1500-1508 of the United States Code, the Council's regulations were designed to ensure that federal agencies "act according to the letter and spirit of the Act". Specifically, the regulations tell agencies what they must do to comply with section 102(2) of NEPA (42 USC §4332). As issues have arisen, the Council has also developed informal guidance and studies to further aid agencies and the public in compliance with the Act. In addition, each federal agency has its own NEPA procedures. To learn more about individual agency procedures click here.

On July 16, 2020 the CEQ completed the first comprehensive revision of NEPA regulations in 40 years. The update’s intent was to “to modernize provisions, streamline infrastructure project development, and promote better decision making by the Federal government.”(CEQ 2020). The National Law Review analyzes these changes. Agencies begin implementing the new changes end of September, 2020. 

Three Levels of Environmental Review and Compliance

The NEPA process has been conceptualized as having three distinct levels of environmental review and compliance (Eccleston 1999, 49; Fogleman 1990, 40). Agencies must specify criteria for and identify classes of actions that normally fall within each of these levels of review (40CFR 1507.3b). For a graphic illustrating the NEPA process click here.

1. Categorical Exclusion (CATX) (definition ): These are actions that have been determined by the agency to not individually or cumulatively have a significant effect on the human environment and thus, in the absence of extraordinary circumstances, do not require an environmental impact statement or an environmental assessment. Actions that qualify for a CATX are exempt from further NEPA review unless extraordinary circumstances are present (40 CFR 1507.3b, 1508.4).
2. Environmental Assessment (EA) (definition ): An EA is a concise public document that provides evidence and analysis of actions and alternatives for determining whether to prepare an environmental impact statement or a finding of no significant impact (FONSI) (definition ). A FONSI is a document which explains the reasons why an action not otherwise excluded will not have a significant effect on the human environment (40 CFR 1508.9, 1508.13).
3. Environmental Impact Statement (EIS) (definition ): The EIS requires the highest level of environmental review and is prepared for actions that will have significant environmental impacts. The statement must comply with section 102 (2)(C)  of the Act as well as CEQ's regulations.

NEPA on Federal Rangelands

Federal agencies are given broad discretionary authority to determine policies and procedures for compliance with NEPA. This flexibility allows each agency to tailor procedures and criteria to its unique situation and needs. Thus, according to the varied mission of each agency the NEPA process may be different. With advances in technology, increasingly complex environmental problems, and protracted disputes over natural resources, agencies have recognized the need to update procedures to meet new challenges. The USDA Forest Service’s NEPA regulation revision process is documented on their NEPA site.

NEPA is only about five pages long, containing a statement of purpose and but two subchapters. The second subchapter creates the Council on Environmental Quality (CEQ), which oversees the implementation of the Act and reports directly to the President. The first subchapter contains the true substance of the Act and is described below:

Subchapter I, § 4331 declares a national environmental policy and lists broad goals to be achieved by the Federal Government and the Nation to:

1. Fulfill the responsibilities of each generation as trustee of the environment
2. Assure a safe, healthful, productive, and aesthetically and culturally pleasing surroundings
3. Attain a wide range of beneficial uses of the environment while avoiding degradation or risk to health or safety or other undesirable or unintended consequences
4. Preserve our national heritage and wherever possible, an environment which supports diversity, and variety of individual choice
5. Achieve a balance between population and resource use
6. Enhance the quality of renewable natural resources and recycle depletable resources

Subchapter I, § 4332  provides the action-forcing mechanisms for the achievement of stated goals. The section sets forth procedural requirements for the preparation of environmental impact statements and insists that "to the fullest extent possible" agencies of the federal government shall:

1. Utilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment.
2. Develop procedures with the CEQ that will insure the consideration of presently unquantified environmental amenities and values along with economic and technical considerations.
3. 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 -the environmental impact of the proposed action
   • any adverse environmental effects which cannot be avoided should the proposal be implemented
   • alternatives to the proposed action
   • the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
   • any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

4. Study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.

The remainder of Subchapter I refers to support of international initiatives, sharing of advice and information, the use of ecological information in planning and development of projects, assistance to the Council on Environmental Quality, and agency compliance with NEPA.

In 1969 Congress passed The National Environmental Policy Act (NEPA), a deceptively simple statute which substantially altered the manner in which agencies of the U.S. government make decisions regarding projects that impact the human environment. Enacted into law on January 1, 1970, NEPA laid the foundation for a coherent national approach to the environment by requiring the integration of environmental quality concerns into Federal policymaking and decision making. Through NEPA, the Federal government began requiring three vital processes during project planning that had not been consistently undertaken before. These requirements are:

1. that all Federal agencies consider the environmental impacts of proposed actions
2. that the public be informed of the potential environmental impacts of proposed actions
3. that the public be involved in planning and analysis relevant to actions that impact the environment

In order to fulfill these requirements, Federal agencies implement what has come to be known as the "NEPA process" when planning projects with environmental impacts. While often viewed as yet another bureaucratic hoop to jump through, the primary objective of this process.

Beginning in the 1960s, the public started to become more concerned about the impacts of agriculture on the natural environment. In addition, the public began to look to public lands for uses other than natural resources extraction like timber, grazing and mining. In response, Congress passed a series of laws that changed how we use and manage public lands. The most significant of these is the National Environmental Policy Act, also known as NEPA. Information on how NEPA works is available here (link). Other important laws include:

The Multiple Use Sustained Yield Act (1960): explicitly required the USFS to manage public lands according to the principles of multiple use and sustained yield, e.g. that the US Forest Service should work to balance multiple interests while also ensuring the availability of resource for future generations.

The Endangered Species Act (1973): provides specific legal protections for species at risk of extinction. This law prevents any type of harm to species listed by the US Fish and Wildlife Service as threatened or endangered with extinction and under certain conditions can require changes in management to protect species.

The National Forest Management Act (1976): sets specific rules for how the US Forest Service conducts planning and management activities, including requiring national forests to develop and implement resource management plans that consider all uses of forests while maintaining sustainability of resource use.

The Federal Land Policy and Management Act (1976): sets similar rules for the BLM as are set for the US Forest Service in the National Forest Management Act. Also puts in place specific requirements to restore rangelands and prevent future overgrazing and rangeland degradation.

The Clean Water Act (1972): was designed to protect waterways from pollution. This law has been highly contentious over the years because of the impact of the regulations on landowners in areas with wetlands and small streams.

The Public Rangeland Improvement Act (1978): sets the formula for calculation of grazing fees that is still in use today.

The Rescissions Act (1995): required the US Forest Service to conduct NEPA analysis on grazing allotments on a specific timeline.

Grazing fees are set differently for federal public lands and state trust lands. All federal lands, whether they are managed by the BLM, US Forest Service, or some other federal agency, are always the same. The formula for setting grazing fees on public lands was last changed in the Public Rangelands Improvement Act of 1978. This formula is based on the market value of forage on the public lands. It takes into account market rates for private land grazing leases, current market prices for beef cattle, and the expected costs of livestock production. Regardless of these factors, grazing fees can never drop below $1.35 per animal unit, per month and can never increase by more than 25% from one year to the next. An animal unit is generally calculated as a single cow/calf pair.

State trust lands also charge grazing fees, but the approach to calculating these fees is highly variable from one state to the next. For example, in Arizona, grazing fees are set based on the estimated value of the forage on state trust lands. In California, fees are set based on fair market value of equivalent private grazing leases. Montana, Idaho, and other states have their own formulas for calculating grazing fees. As a result, the fees for grazing on state trust land are highly variable across the western states. In some states, federal and state grazing fees are similar. In other states, the grazing fees on state trust lands are much higher than federal public lands.