NEPA is the most important federal environmental legislation to be considered in the planning and development of highway projects. NEPA was enacted by Congress in December 1969 and signed into law by President Nixon on January 1, 1970. It was the first comprehensive environmental law in the United States and established the country’s national environmental policies. To implement these policies, NEPA requires federal agencies to assess the environmental effects of its discretionary actions prior to making decisions on such actions. Actions subject to NEPA include such activities as the financing or approving of projects or programs; the adoption of agency regulations and procedures; the permitting of private and public actions; and a broad range of other actions.
As indicated in Section 101 of NEPA, its purpose is “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality (CEQ)”, within the executive office of the president.
In addition to the agency specific regulations implementing NEPA, DOT and its constituent agencies have identified the process and methods to be used to assess environmental impacts under NEPA in a number of orders, technical advisories, and memoranda. These include Order 5610.1C, Procedures for Considering Environmental Impacts (9/18/1979), which established procedures for consideration of environmental impacts in decision making on proposed DOT actions. A draft revision to this order has been considered by DOT (Draft Order 5610.1D, 7/5/2000), but has not been finalized. Further guidance for preparing environmental documents under NEPA is provided in FHWA Technical Advisory T6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents (10/30/1987), the Federal Aid Policy Guide (FAPG), and a number of FHWA Policy Memoranda (see Table 1.1).
TABLE 1.1 FHWA Office of Planning, Environment, and Real Estate—Selected Policy Memoranda
Issued date
8/17/06 Guidance on 23 USC §328 Environmental Restoration and Pollution Abatement
7/31/06 Memorandum on Improvement of NEPA Documents
5/25/06 Highway Traffic Noise
4/4/06 Section 6004: State Assumption of Responsibility for Categorical Exclusions
3/29/06 Transportation Conformity Guidance for Qualitative Hot-Spot Analysis in PM2.5
and PM10 Nonattainment and Maintenance Areas 2/15/06 Release of FHWA Construction Noise Model (FHWA RCNM) Version 1.0
2/14/06 Interim Guidance for Implementing the Transportation Conformity Provisions in
the SAFETEA-LU
2/3/06 Interim Guidance for Air Toxic Analysis in NEPA Documents
1/13/06 Guidance for Applying the 4(f) Exemption for the Interstate Highway System
3/10/05 Federal-Aid Eligibility of Wetland and Natural Habitat Mitigation
4/28/99 Guidance on the Congestion Mitigation and Air Quality Improvement (CMAQ)
Program under the Transportation Equity Act for the 21st Century (TEA-21) 3/12/97 Eligibility of ISTEA Funds to Mitigate Historic Impacts to Wetlands
10/28/96 NEPA Requirements for Transportation Enhancement Activities
12/15/95 Memorandum of Understanding to Foster the Ecosystem Approach
12/13/95 Use of Private Wetland Mitigation Banks
10/11/95 Highway Noise—The Audible Landscape: A Manual for Highway Noise and
Land Use
7/25/95 Participation in Funding for Ecological Mitigation
7/5/95 Use of Private Wetland Mitigation Banks as Compensatory Mitigation for
Highway Project Impacts
6/12/95 Highway Traffic Noise Guidance and Policies and Written Noise Policies
2/3/95 Analyzing Exempt Projects in the Conformity Process
11/8/94 Federal Interagency Memorandum of Understanding (MOU) for Implementation
of the Endangered Species Act (ESA)
8/22/94 Interim Guidance of Applying Section 4(f) on Transportation Enhancement
Projects and National Recreational Trails Projects 4/19/94 Wetland Delineation and Mitigation
Additional guidance is provided in common law resulting from litigation concerning environmental matters. Judicial review may result in clarification or invalidation of all or parts of environmental regulation. There is an extensive body of law that has resulted from such review.
