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The "Action-Forcing" Requirements of NEPA and Ongoing Actions of the Federal Government

May 2004

Citation: ELR 10435

Author: Nicholas C. Yost and Gary Widman

The U.S. Supreme Court most properly held in Marsh v. Oregon Natural Resources Council that it would be "incongruous" if "blinders to adverse environmental effects, once unequivocally removed, [were] restored prior to the completion of agency action simply because the relevant proposal has received initial approval." Many "actions" taken by federal agencies are not discrete, one-time events, but rather represent "ongoing actions" to which continuing obligations under the National Environmental Policy Act (NEPA) must attach for the Act's purpose to be realized. In addition, the information and circumstances set out may significantly change during the pendency of an ongoing action, such as during implementation of a plan. The pending case of Norton v. Southern Utah Wilderness Alliance provides an opportunity for the Court to reiterate and reinforce its commitment to the application of NEPA to the ongoing actions of the federal government.

In applying NEPA to ongoing actions of federal agencies, at least three of the Act's "action-forcing" devices are potentially applicable--§102(2)(C)'s environmental impact statement (EIS) requirement (with its significance threshold), §102(2)(E)'s environmental assessment (EA) requirement (which has no such threshold), and §102(1)'s requirement for agencies to act in accordance with the policies set out in NEPA (also with no significance threshold).

Nicholas C. Yost is a partner in the law firm of Sonnenschein Nath & Rosenthal LLP. He served as General Counsel of the Council on Environmental Quality (CEQ) in the Executive Office of the President during the Carter Administration and was lead draftsperson of the CEQ's regulations implementing the National Environmental Policy Act (NEPA) of 1969, 40 C.F.R. pts. 1500-1508. Gary Widman served as CEQ General Counsel during the Nixon and Ford Administrations and advised the CEQ concerning guidelines which preceded the regulations.

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