An environmental impact statement (EIS) is done to analyze and document the impacts of a "major federal action significantly affecting the quality of the human environment" (NEPA Sec. 102(C)). The National Environmental Policy Act (NEPA) regulations of the Council on Environmental Quality (CEQ) go into considerable detail about the content and format of an EIS, and into how an EIS is reviewed, finalized, used in decisionmaking, and, if necessary, amended and supplemented.
About 500 EISs are done each year by all Federal agencies combined.
What should go into an EIS?
The regulations (at 40 CFR 1502.10) for an EIS provide a "recommended format" which most agencies follow closely:
(a) Cover sheet
(b) Summary
(c) Table of contents
(d) Purpose of and need for action (What public purpose is served by whatever action is the subject of the EIS and why does this purpose need to be served?)
(e) Alternatives including proposed action (What reasonable means are there to accomplish the purpose and meet the need? The analysis of alternatives is often referred to as "the heart of the EIS.")
(f) Affected environment (What is the human environment that may be affected by each alternative?)
(g) Environmental consequences
(h) List of preparers
(i) List of Agencies, organizations, and persons to whom copies of the statement are sent
(j) Index
(k) Appendices (if any)
How are EISs reviewed?
Before an EIS is prepared, the agency publishes a "notice of intent" (NOI) in the Federal Register and usually notifies potentially concerned parties in other ways as well (by letter, newspaper article, etc.). This is the first opportunity to review not the EIS itself, but the fact that the agency is going to prepare one. It is an opportunity for very early input into the EIS process.
The agency then carries out "scoping," i.e., figuring out the scope of the analytic work that will create the EIS. Scoping is a public process in which review of the agency's initial direction can take place.
Once the EIS is drafted, it must be sent out for review to Federal agencies with "jurisdiction by law or special expertise with respect to any environmental impact involved and any appropriate Federal, State or local agency authorized to develop and enforce environmental standards." It also must be sent to the project applicant, if any, and to anyone else who has asked for a copy. The Draft EIS (DEIS) is made available for public review as well. Comments provided must be considered by the agency, and the agency's response must be documented in the Final EIS (FEIS).
EISs and cultural resources
Cultural resources are referred to in different ways at different points in the CEQ regulations.
The regulatory definition of the term "human environment" at 40 CFR 1508.14 –impacts on the quality of the human environment being the subjects of any EIS – includes "the natural and physical environment and the relationship of people with that environment."
The definition of "effects" at 40 CFR 1508.8 – as in "effects on the quality of the human environment" – includes changes in the human environment that are "aesthetic, historic, cultural, economic, (or) social."
The regulatory definition of the word "significantly" at 40 CFR 1508.27 – as in "major federal action significantly affecting the quality of the human environment" – includes as measures of impact intensity:
- Impacts on an area's unique characteristics, such as "historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, and ecologically critical areas" (40 CFR 1508.27(b)(3)).
- Impacts on "districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places" and on "significant scientific, cultural, or historical resources" (40 CFR 1508.27(b)(8)).
Clearly, impacts on cultural resources are to be addressed in EISs. Note that it is not just impacts on historic properties that should be addressed. The regulations use "historic" and "cultural" in parallel, not as synonyms.
40 CFR 1508.14
40 CFR 1508.14 – the regulatory definition of the "human environment" – is an often misinterpreted section of the CEQ regulations. After defining the human environment to include the natural and physical environment and human relationships with that environment, it says that economic and social effects by themselves do not require preparation of an EIS. It goes on to say that when an EIS is prepared and economic or social effects are interrelated with effects on the natural or physical environments, then such effects must be considered.
Agencies have occasionally interpreted this to mean that they do not need to consider economic and social effects in an EIS. In fact, if an environmental assessment (EA) or the screening of a categorical exclusion (CatEx) indicates that the only impacts of an action will be on social or economic concerns (which implies that such concerns must be considered in EAs and CatEx screening), then an EIS need not be done. If an EIS is done, the relationships of economic and social factors to effects on the natural or physical environment must be considered. For example:
- A proposal to change the way veterans' benefits are administered, which might have economic and social impacts but would arguably not affect the natural or physical environment, probably would not require an EIS (though an EA would probably be in order to consider whether such effects might occur);
but
- A proposal for a major timber harvest in a National Forest probably would require an EIS in which the economic and social impacts of the project on local mushroom gatherers might need to be considered along with other impacts;
and
- A proposal to permit or assist development outside a town might require an EIS even if there were no direct impacts on the natural or physical environment, if the EA prepared on the proposal suggested that it might cause economic and social effects on the town's central business district, resulting in the abandonment and loss of historic commercial buildings there.
It also should be noted that 40 CFR 1508.14 does not say potential impacts on human culture and its resources are not sufficient by themselves to require preparation of an EIS; it does not even mention such impacts.
What's done with an EIS – DEIS, FEIS, and ROD
Once the EIS analysis has resulted in a draft environmental impact statement (DEIS), it is subjected to public and agency review, and comments are addressed – this may require further analysis. Then, assuming the project has not been abandoned, or so changed that a supplemental DEIS is needed, a final EIS (FEIS) is prepared and published. The FEIS is considered in making the agency's decision about whether and how to proceed with the action that was the subject of the EIS. This decision is recorded in a Record of Decision (ROD). According to 40 CFR 1505.2, the ROD must:
- State what the decision was.
- Identify all alternatives considered.
- Specify the alternative or alternatives considered to be "environmentally preferable." (Note that the agency does not have to select the environmentally preferable alternative, but it does have to discuss what it is.)
- Identify and discuss the factors balanced in making the decision (whether for or against the environmentally preferable alternative).
- State whether "all practicable means to avoid or minimize environmental harm . . . have been adopted, and if not, why they were not."
Having notified the world of its decision, the agency implements it. In doing so, it must carry out any mitigation, i.e., "means to avoid or minimize environmental harm," it has said in the ROD or EIS that it will carry out (40 CFR 1505.3).
Common problems with EISs
Post-hoc rationalization. This is a very common problem, which strikes at the heart of NEPA's effectiveness. This is what happens when the agency makes a decision and then "does NEPA" to document that the decision is really okay environmentally. Obviously this is sham compliance, but it is very, very common.
Poor scoping. Scoping is supposed to be about figuring out what the scope of the EIS should be – what kinds of studies are needed, what kinds of expertise should be employed, who should be consulted, and so forth. The regulations require "an early and open process for determining the scope of issues to be addressed" (40 CFR 1501.7). Unfortunately, some agencies and NEPA consultants have become fixated on the word "open," and on a subsequent provision in the regulations allowing "an early scoping meeting or meetings" (40 CFR 1501.7(b)(4)), and reduced the whole process of scoping to holding a public meeting. These "scoping meetings" are often stilted, formal affairs whose purpose some wags have characterized as to "inform, seek input, and ignore." Having thus failed to identify the actual issues that need to be analyzed, the analysts then analyze whatever it is they are equipped to analyze. As a result, the content of an EIS often reflects the expertise of the consulting firm that prepares it as much as or more than it does the actual environmental issues of real concern.
Multidisciplinary not interdisciplinary. The regulations (following Section 102(A) of NEPA itself) say that an EIS "shall be prepared using an inter-disciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts" (40 CFR 1502.6). In many cases, however, the analysis is only multidisciplinary; practitioners of different disciplines work in essential isolation from one another, and somebody then packages their results between the covers of the EIS. In other words, the work is not "integrated." The result is an incoherent analysis that does not make effective use of the analysts' expertise, and that is contrary to the stated intent of Congress.
Deferral. With respect to historic properties, a very common problem is "deferral," in which the agency:
- Acknowledges that it does not know much about what effects there may be on historic properties (often because such properties have not yet been identified);
but
- Says that whatever effects there may be, NHPA Section 106 review (of the National Historic Preservation Act), to be performed later, will take care of them;
and
- Concludes that therefore, whatever alternative is decided on, impacts on historic properties will not be a problem.
Considering environmental impacts after a decision has been made defeats NEPA's purpose of considering impacts in preparing to make decisions. It also almost guarantees last-minute conflicts between project implementation and historic preservation.
Failure to consider things that are not historic properties. With respect to other kinds of cultural resources, a common problem is that they are not considered at all. Historic properties, or even more narrowly, archeological sites, are sometimes the only things discussed in the "cultural resource" part of an EIS. If social impacts are considered, they are often considered only terms of easily quantifiable socioeconomic variables like population, employment, and use of public services. The result is that impacts on many classes of cultural resource simply are not identified or considered in deciding whether significant impacts may occur.
Need more information?
If you are working on preparation of an EIS, see Analyst's Tips. If you are reviewing an EIS see Reviewer's Tips.