National Environmental Policy Act: Little Information Exists on NEPA Analyses
Published: 2014-04-15T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: NEPA requires all federal agencies to evaluate the potential environmental effects of proposed projects—such as roads or bridges—on the human environment. Agencies prepare an EIS when a project will have a potentially significant impact on the environment. They may prepare an EA to determine whether a project will have a significant potential impact. If a project fits within a category of activities determined to have no significant impact—a CE—then an EA or an EIS is generally not necessary. The adequacy of these analyses has been a focus of litigation.
GAO was asked to review issues related to costs, time frames, and litigation associated with completing NEPA analyses. This report describes information on the (1) number and type of NEPA analyses, (2) costs and benefits of completing those analyses, and (3) frequency and outcomes of related litigation. GAO included available information on both costs and benefits to be consistent with standard economic principles for evaluating federal programs, and selected the Departments of Defense, Energy, the Interior, and Transportation, and the USDA Forest Service for analysis because they generally complete the most NEPA analyses. GAO reviewed documents and interviewed individuals from federal agencies, academia, and professional groups with expertise in NEPA analyses and litigation. GAO's findings are not generalizeable to agencies other than those selected.
This report has no recommendations. GAO provided a draft to CEQ and agency officials for review and comment, and they generally agreed with GAO's findings.
section_title: What GAO Found
paragraphs: Governmentwide data on the number and type of most National Environmental Policy Act (NEPA) analyses are not readily available, as data collection efforts vary by agency. NEPA generally requires federal agencies to evaluate the potential environmental effects of actions they propose to carry out, fund, or approve (e.g., by permit) by preparing analyses of different comprehensiveness depending on the significance of a proposed project's effects on the environment—from the most detailed Environmental Impact Statements (EIS) to the less comprehensive Environmental Assessments (EA) and Categorical Exclusions (CE). Agencies do not routinely track the number of EAs or CEs, but the Council on Environmental Quality (CEQ)—the entity within the Executive Office of the President that oversees NEPA implementation—estimates that about 95 percent of NEPA analyses are CEs, less than 5 percent are EAs, and less than 1 percent are EISs. Projects requiring an EIS are a small portion of all projects but are likely to be high-profile, complex, and expensive. The Environmental Protection Agency (EPA) maintains governmentwide information on EISs. A 2011 Congressional Research Service report noted that determining the total number of federal actions subject to NEPA is difficult, since most agencies track only the number of actions requiring an EIS.
Little information exists on the costs and benefits of completing NEPA analyses. Agencies do not routinely track the cost of completing NEPA analyses, and there is no governmentwide mechanism to do so, according to officials from CEQ, EPA, and other agencies GAO reviewed. However, the Department of Energy (DOE) tracks limited cost data associated with NEPA analyses. DOE officials told GAO that they track the money the agency pays to contractors to conduct NEPA analyses. According to DOE data, its median EIS contractor cost for calendar years 2003 through 2012 was $1.4 million. For context, a 2003 task force report to CEQ—the only available source of governmentwide cost estimates—estimated that a typical EIS cost from $250,000 to $2 million. EAs and CEs generally cost less than EISs, according to CEQ and federal agencies. Information on the benefits of completing NEPA analyses is largely qualitative. According to studies and agency officials, some of the qualitative benefits of NEPA include its role in encouraging public participation and in discovering and addressing project design problems that could be more costly in the long run. Complicating the determination of costs and benefits, agency activities under NEPA are hard to separate from other required environmental analyses under federal laws such as the Endangered Species Act and the Clean Water Act; executive orders; agency guidance; and state and local laws.
Some information is available on the frequency and outcome of NEPA litigation. Agency data, interviews with agency officials, and available studies show that most NEPA analyses do not result in litigation, although the impact of litigation could be substantial if a single lawsuit affects numerous federal decisions or actions in several states. In 2011, the most recent data available, CEQ reported 94 NEPA cases filed, down from the average of 129 cases filed per year from calendar year 2001 through calendar year 2008. The federal government prevails in most NEPA litigation, according to CEQ and legal studies.

section_title: Letter
paragraphs: The National Environmental Policy Act (NEPA)—the statute requiring  federal agencies to evaluate the potential environmental effects of  proposed projects on the human environment—has been identified by  critics as a cause of delay for projects because of time-consuming  requirements and praised by proponents for, among other things, bringing  public participation into government decision making. Under NEPA, all  federal agencies generally are to evaluate the potential environmental  effects of actions they propose to carry out, fund, or approve (e.g., by  permit)—including the development of infrastructure projects, such as  roads and bridges. Enacted in 1970, NEPA, and the subsequent Council  on Environmental Quality Regulations Implementing the Procedural  Provisions of NEPA, set out an environmental review process that has  two principal purposes: (1) to ensure that an agency carefully considers  information concerning the potential environmental effects of proposed  development projects and (2) to ensure that this information is made  available to the public. NEPA requires federal agencies to analyze the  nature and extent of a project’s potential environmental effects and, in  many cases, document these analyses. The documentation and  comprehensiveness of these analyses depends on the significance of a  project’s potential effects on the environment. The adequacy of NEPA  analyses has been a focus of litigation. You asked us to review various  issues related to costs, time frames, and litigation associated with  completing NEPA analyses. This report describes information on the (1)  number and type of NEPA analyses, (2) costs and benefits of completing  those analyses, and (3) frequency and outcomes of related litigation. We  included available information on both costs and benefits to be consistent  with standard economic principles for evaluating federal programs and  generally accepted government auditing standards.
To respond to these objectives, we reviewed relevant publications,  obtained documents and analyses from federal agencies, and interviewed  federal officials and individuals from academia and professional  associations with expertise in conducting NEPA analyses. Specifically, to  describe the number and type of NEPA analyses from calendar year 2008  through calendar year 2012 and what is known about the costs and  benefits of NEPA analyses, we reported information identified through the  literature review, interviews, and other sources. We selected the  Departments of Defense, Energy, the Interior, and Transportation; and  the Forest Service within the U.S. Department of Agriculture for analysis  because they generally complete the most NEPA analyses. Our findings  for these agencies are not generalizeable to other federal agencies but  provide examples of NEPA implementation. To describe the frequency  and outcome of NEPA litigation, we reviewed (1) laws, regulations, and  agency guidance; (2) NEPA litigation data collected from federal entities  and the National Association of Environmental Professionals (NAEP), the  professional association for NEPA practitioners within and outside the  federal government; and (3) relevant studies. To assess the reliability of  data collected from the selected agencies, we reviewed existing  documentation when available and interviewed officials, including those  from the U.S. Department of Justice, knowledgeable about the data. We  found all data to be sufficiently reliable for the purposes of this report. See  appendix I for additional details on our objectives, scope, and  methodology.
We conducted this performance audit from June 2013 to April 2014 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: Under NEPA, federal agencies are to evaluate the potential  environmental effects of projects they are proposing by preparing either  an Environmental Assessment (EA) or a more detailed Environmental  Impact Statement (EIS), assuming no Categorical Exclusion (CE) applies.  Agencies may prepare an EA to determine whether a proposed project is  expected to have a potentially significant impact on the human  environment. If prior to or during the development of an EA, the agency  determines that the project may cause significant environmental impacts,  an EIS should be prepared. However, if the agency, in its EA, determines  there are no significant impacts from the proposed project or action, then  it is to prepare a document—a Finding of No Significant Impact—that  presents the reasons why the agency has concluded that no significant  environmental impacts will occur if the project is implemented. An EIS is a  more detailed statement than an EA, and NEPA implementing regulations  specify requirements and procedures—such as providing the public with  an opportunity to comment on the draft document—applicable to the EIS  process that are not mandated for EAs.
If a proposed project fits within a category of activities that an agency has  already determined normally does not have the potential for significant  environmental impacts—a CE—and the agency has established that  category of activities in its NEPA implementing procedures, then it  generally need not prepare an EA or EIS. The agency may instead approve projects that fit within the relevant category by using one of its  established CEs. For example, the Bureau of Land Management (BLM)  within the Department of the Interior (Interior) has CEs in place for  numerous types of activities, such as constructing nesting platforms for  wild birds and constructing snow fences for safety. For a project to be  approved using a CE, the agency must determine whether any  extraordinary circumstances exist in which a normally excluded action  may have a significant effect. Figure 1 illustrates the general process for  implementing NEPA requirements.
Private individuals or companies may become involved in the NEPA  process when a project they are developing needs a permit or other  authorization from a federal agency to proceed, such as when the project  involves federal land. For example, a company may apply for such a  permit in constructing a pipeline crossing federal lands; in that case, the  agency that is being asked to issue the permit must evaluate the potential  environmental effects of constructing the pipeline under NEPA. The  private company or developer may in some cases provide environmental  analyses and documentation or enter into an agreement with an agency  to pay a contractor for the preparation of environmental analyses and  documents, but the agency remains ultimately responsible for the scope  and content of the analyses under NEPA.
CEQ within the Executive Office of the President oversees the  implementation of NEPA, reviews and approves federal agency NEPA  procedures, and issues regulations and guidance documents that govern    and guide federal agencies’ interpretation and implementation of NEPA. The Environmental Protection Agency (EPA) also plays two key roles in  other agencies’ NEPA processes. First, EPA reviews and publicly  comments on the adequacy of each draft EIS and the environmental  impacts of the proposed actions reviewed in the EIS. If EPA determines  that the action is environmentally unsatisfactory, it is required by law to  refer the matter to CEQ. Second, EPA maintains a national EIS filing  system. Federal entities must publish in the Federal Register a Notice of  Intent to prepare an EIS and file their draft and final EISs with EPA, which  publishes weekly notices in the Federal Register listing EISs available for  public review and comment.
CEQ’s regulations implementing NEPA require federal agencies to solicit  public comment on draft EISs. When the public comment period is  finished, the agency proposing to carry out or permitting a project is to  analyze comments, conduct further analysis as necessary, and prepare  the final EIS. In the final EIS, the agency is to respond to the substantive  comments received from other government agencies and the public.  Sometimes a federal agency must prepare a supplemental analysis to  either a draft or final EIS if it makes substantial changes in the proposed  action that are relevant to environmental concerns, or if there are  significant new circumstances or information relevant to environmental  concerns. Further, in certain circumstances, agencies may—through  “incorporation by reference,” “adoption,” or “tiering”—use another analysis  to meet some or, in the case of adoption, all of the environmental review  requirements of NEPA.
Unlike other environmental statutes, such as the Clean Water Act or the  Clean Air Act, no individual agency has enforcement authority with regard  to NEPA’s implementation. sometimes cited as the reason that litigation has been chosen as an  avenue by individuals and groups that disagree with how an agency  meets NEPA requirements for a given project. For example, a group  may allege that an EIS is inadequate, or that the environmental impacts  of an action will in fact be significant when an agency has determined  they are not. Critics of NEPA have stated that those who disapprove of a  federal project will use NEPA as the basis for litigation to delay or halt that  project. Others argue that litigation only results when agencies do not  comply with NEPA’s procedural requirements.
section_title: Data on the Number and Type of Most NEPA Analyses Are Not Readily Available
paragraphs: Governmentwide data on the number and type of most NEPA analyses  are not readily available, as data collection efforts vary by agency (see  app. II for a summary of federal NEPA data collection efforts). Agencies  do not routinely track the number of EAs or CEs, but CEQ estimates that  EAs and CEs comprise most NEPA analyses. EPA publishes and  maintains governmentwide information on EISs.
Also, unlike these other laws, while NEPA imposes procedural requirements, it does not  establish substantive standards.
subsections: section_title: Many Agencies Do Not Routinely Track the Number of EAs or CEs, but CEQ Estimates That EAs and CEs Comprise Most NEPA Analyses
paragraphs: Many agencies do not routinely track the number of EAs or CEs.  However, based on information provided to CEQ by federal agencies,  CEQ estimates that about 95 percent of NEPA analyses are CEs, less  than 5 percent are EAs, and less than 1 percent are EISs. These  estimates were consistent with the information collected on projects  funded by the American Recovery and Reinvestment Act of 2009  (Recovery Act). Projects requiring an EIS are a small portion of all  projects but are likely to be high-profile, complex, and expensive. As the  Congressional Research Service (CRS) noted in its 2011 report on  NEPA, determining the total number of federal actions subject to NEPA is  difficult, since most agencies track only the number of actions requiring  an EIS.
The percentages of EISs, EAs, and CEs vary by agency because of  differences in project type and agency mission. For example, the  Department of Energy (DOE) reported that 95 percent of its 9,060 NEPA  analyses from fiscal year 2008 to fiscal year 2012 were CEs, 2.6 percent  were EAs, and 2.4 percent were EISs or supplement analyses. Further, in  June 2012, we reported that the vast majority of highway projects are  processed as CEs, noting that the Federal Highway Administration  (FHWA) within the Department of Transportation (DOT) estimated that  approximately 96 percent of highway projects were processed as CEs,  based on data collected in 2009. Representing the lowest proportion of CEs in the data available to us, the Forest Service reported that 78  percent of its 14,574 NEPA analyses from fiscal year 2008 to fiscal year  2012 were CEs, 20 percent were EAs, and 2 percent were EISs.
Of the agencies we reviewed, DOE and the Forest Service officials told  us that CEs are likely underrepresented in their totals because agency  systems do not track certain categories of CEs considered “routine”  activities, such as emergency preparedness planning. For example, DOE  officials stated that the department has two types of CEs, those that (1)  are routine (e.g., administrative, financial, and personnel actions;  information gathering, analysis, and dissemination) and are not tracked  and (2) are documented as required by DOE regulations.
section_title: Governmentwide Data Are Available on EISs
paragraphs: EPA publishes and maintains governmentwide information on EISs,  updated when Notices of Availability for draft and final EISs are published  in the Federal Register. CEQ and NAEP publish publicly available reports  on EISs using EPA data. As shown in table 1, the three compilations of  EIS data produce different totals.
According to CEQ and EPA officials, the differences in EIS numbers  shown in table 1 are likely due to different assumptions used to count the  number of EISs and minor inconsistencies in the EPA data compiled for  the CEQ and NAEP reports and for our analysis of EPA’s data. CEQ  obtains the EIS data it reports based on summary totals provided by EPA.  Occasionally, CEQ also gathers some CE, EA, and EIS data through its  “data call” process, by which it aggregates information submitted by  agencies that use different data collection mechanisms of varying quality.  According to a January 2011 CRS report on NEPA, agencies track the  total draft, final, and supplemental EISs filed, not the total number of  individual federal actions requiring an EIS. In other words, agency data  generally reflect the number of EIS documents associated with a project,  not the number of projects.
Four agencies—the Forest Service, BLM, FHWA, and the U.S. Army  Corps of Engineers within the Department of Defense (DOD)—are  generally the most frequent producers of EISs, accounting for 60 percent   As  of the EISs in 2012, according to data in NAEP’s April 2013 report. shown in table 2, these agencies account for over half of total draft and  final EISs from 2008 through 2012, according to NAEP data.
NAEP, Annual NEPA Report 2012 of the National Environmental Policy Act (NEPA)  Practice (April 2013).
section_title: Little Information Exists on the Costs and Benefits of Completing NEPA Analyses
paragraphs: Little information exists at the agencies we reviewed on the costs and  benefits of completing NEPA analyses. We found that, with few  exceptions, the agencies did not routinely track data on the cost of  completing NEPA analyses, and that the cost associated with conducting  an EIS or EA can vary considerably, depending on the complexity and  scope of the project. Information on the benefits of completing NEPA  analyses is largely qualitative. Complicating matters, agency activities  under NEPA are hard to separate from other environmental review tasks  under federal laws, such as the Clean Water Act and the Endangered  Species Act; executive orders; agency guidance; and state and local  laws.
subsections: section_title: Little Information Exists on the Cost of Completing NEPA Analyses
paragraphs: Little information exists on the cost of completing NEPA analyses. With  few exceptions, the agencies we reviewed do not track the cost of  completing NEPA analyses, although some of the agencies tracked  information on NEPA time frames, which can be an element of project  cost.
subsections: section_title: Most Agencies We Reviewed Do Not Track the Cost of Completing NEPA Analyses
paragraphs: In general, we found that the agencies we reviewed do not routinely track  data on the cost of completing NEPA analyses. According to CEQ  officials, CEQ rarely collects data on projected or estimated costs related  to complying with NEPA. EPA officials also told us that there is no  governmentwide mechanism to track the costs of completing EISs.  Similarly, most of the agencies we reviewed do not track NEPA cost data.  For example, Forest Service officials said that tracking the cost of  completing NEPA analyses is not currently a feature of their NEPA data  collection system. Complicating efforts to record costs, applicants may, in  some cases, provide environmental analyses and documentation or enter  into an agreement with the agency to pay for the preparation of NEPA  analyses and documentation needed for permits issued by federal  agencies. Agencies generally do not report costs that are “paid by the  applicant” because these costs reflect business transactions between  applicants and their contractors and are not available to agency officials.
Two NEPA-related studies completed by federal agencies illustrate how it  is difficult to extract NEPA cost data from agency accounting systems. An  August 2007 Forest Service report on competitive sourcing for NEPA  compliance stated that it is “very difficult to track the actual cost of  performing NEPA. Positions that perform NEPA-related activities are  currently located within nearly every staff group, and are funded by a  large number of budget line items. There is no single budget line item or  budget object code to follow in attempting to calculate the costs of doing  NEPA.” Similarly, a 2003 study funded by FHWA evaluating the performance of environmental “streamlining” noted that NEPA cost data  would be difficult to segregate for analysis.
However, DOE tracks limited cost data associated with NEPA analyses.  DOE officials told us that they track the funds the agency pays to  contractors to prepare NEPA analyses and does not track other costs,  such as the time spent by DOE employees. According to DOE data, the  average payment to a contractor to prepare an EIS from calendar year  2003 through calendar year 2012 was $6.6 million, with the range being a  low of $60,000 and a high of $85 million. DOE’s median EIS contractor  cost was $1.4 million over that time period. More recently, DOE’s March  2014 NEPA quarterly report stated that for the 12 months that ended  December 31, 2013, the median cost for the preparation of four EISs for  which cost data were available was $1.7 million, and the average cost  was $2.9 million. For context, a 2003 task force report to CEQ—the only  available source of governmentwide cost estimates—estimated that an  EIS typically cost from $250,000 to $2 million.
In comparison, DOE’s payments to contractors to produce an EA ranged  from $3,000 to $1.2 million with a median cost of $65,000 from calendar  year 2003 through calendar year 2012, according to DOE data. In its  March 2014 NEPA quarterly report, DOE stated that, for the 12 months  that ended December 31, 2013, the median cost for the preparation of 8  EAs was $73,000, and the average cost was $301,000. For  governmentwide context, the 2003 task force report to CEQ estimated  that an EA typically costs from $5,000 to $200,000.no cost data on CEs but stated that the cost of a CE—which, in many  cases, is for a “routine” activity, such as repainting a building—was  generally much lower than the cost of an EA.
section_title: Some Information Is Available on NEPA Time Frames
paragraphs: Some governmentwide information is available on time frames for  completing EISs—which can be one element of project cost—but few  estimates exist for EAs and CEs because most agencies do not collect  information on the number and type of NEPA analyses, and few  guidelines exist on time frames for completing environmental analyses  (see app. III for information on CEQ NEPA time frame guidelines). NAEP  annually reports information on EIS time frames by analyzing information  published by agencies in the Federal Register, with the Notice of Intent to  complete an EIS as the “start” date, and the Notice of Availability for the  final EIS as the “end” date. Our review did not identify other  governmentwide sources of these data. Based on the information  published in the Federal Register, NAEP reported in April 2013 that the  197 final EISs in 2012 had an average preparation time of 1,675 days, or  4.6 years—the highest average EIS preparation time the organization had  recorded since 1997. From 2000 through 2012, according to NAEP, the  total annual average governmentwide EIS preparation time increased at  an average rate of 34.2 days per year.
In addition, some agency officials told us that time frame measures for  EISs may not account for up-front work that occurs before the Notice of  Intent to produce an EIS—the “start” date typically used in EIS time frame  calculations. DOT officials told us that the “start” date is unclear in some  cases because of the large volume of project development and planning  work that occurs before a Notice of Intent is issued. DOE officials made a  similar point, noting that time frames are difficult to determine for many  NEPA analyses because there is a large volume of up-front work that is  not captured by standard time frame measures. According to technical  comments from CEQ and federal agencies, to ensure consistency in its  NEPA metrics, DOE measures EIS completion time from the date of  publication of the Notice of Intent to the date of publication of the notice of  availability of the final EIS. Further, according to a 2007 CRS report, a  project may stop and restart for any number of reasons that are unrelated  to NEPA or any other environmental requirement. year time frame to complete a project may have been associated with  funding issues, engineering requirements, changes in agency priorities,  delays in obtaining nonfederal approvals, or community opposition to the  project, to name a few.
CRS, The National Environmental Policy Act: Streamlining NEPA, RL33267  (Washington, D.C.: Dec. 6, 2007). their EAs are generally completed in about 1 month but that they may  take up to 6 months depending on their complexity. In addition, DOT  officials said that determining the start time of EAs and CEs is even more  difficult than for EISs. The time for completing these can depend in large  part on how much of the up-front work was done already as part of the  preliminary engineering process and how many other environmental  processes are involved (e.g., consultations under the Endangered  Species Act).
The little governmentwide information that is available on CEs shows that  they generally take less time to complete than EAs. DOE does not track  completion times for CEs, but agency officials stated that they usually  take 1 or 2 days. Similarly, officials at Interior’s Office of Surface Mining  reported that CEs take approximately 2 days to complete. In contrast,  Forest Service took an average of 177 days to complete CEs in fiscal  year 2012, shorter than its average of 565 days for EAs, according to  agency documents. The Forest Service documents its CEs with Decision  Memos, which are completed after all necessary consultations, reviews,  and other determinations associated with a decision to implement a  particular proposed project are completed.
section_title: Information on the Benefits of Completing NEPA Analyses Is Largely Qualitative
paragraphs: According to agency officials, information on the benefits of completing  NEPA analyses is largely qualitative. We have previously reported that  assessing the benefits of federal environmental requirements, including  those associated with NEPA, is difficult because the monetization of  environmental benefits often requires making subjective decisions on key  assumptions. According to studies and agency officials, some of the  qualitative benefits of NEPA include its role as a tool for encouraging  transparency and public participation and in discovering and addressing  the potential effects of a proposal in the early design stages to avoid  problems that could end up taking more time and being more costly in the  long run.
Encouraging public participation. NEPA is intended to help government  make informed decisions, encourage the public to participate in those  decisions, and make the government accountable for its decisions. Public  participation is a central part of the NEPA process, allowing agencies to  obtain input directly from those individuals who may be affected by a  federal action. DOE officials referred to this public comment component of  NEPA as a piece of “good government architecture,” and DOD officials  similarly described NEPA as a forum for resolving organizational  differences by promoting interaction between interested parties inside and  outside the government. Likewise, the National Park Service within  Interior uses its Planning, Environment, and Public Comment (PEPC)  system as a comprehensive information and public comment site for  National Park Service projects, including those requiring NEPA  analyses.
CRS, The Role of the Environmental Review Process in Federally Funded Highway  Projects: Background and Issues for Congress, R42479, (Washington, D.C.: Apr. 11,  2012). environmental outcomes brought about through the NEPA process.  DOE has also published a document showing its NEPA “success  stories.” In one example from this document, DOE cited the November  28, 2008, Final Programmatic EIS for the Designation of Energy Corridors  on Federal Lands in 11 Western States (DOE/EIS-0386), that it had  developed in cooperation with BLM. In this case, public comments  resulted in the consideration of alternative routes and operating  procedures for energy transmission corridors to avoid sensitive  environmental resources.
section_title: Activities under NEPA Are Hard to Separate from Other Required Environmental Analyses, Complicating the Determination of Costs and Benefits
paragraphs: Agency activities under NEPA are hard to separate from other required  environmental analyses, further complicating the determination of costs  and benefits. CEQ’s NEPA regulations specify that, to the fullest extent  possible, agencies must prepare NEPA analyses concurrently with other  environmental requirements. CEQ’s March 6, 2012, memorandum on  Improving the Process for Preparing Efficient and Timely Environmental  Reviews under the National Environmental Policy Act states that  agencies “must integrate, to the fullest extent possible, their draft EIS with  environmental impact analyses and related surveys and studies required  by other statutes or executive orders, amplifying the requirement in the  CEQ regulations. The goal should be to conduct concurrent rather than  sequential processes whenever appropriate.” Different types of  environmental analyses may also be conducted in response to other  requirements under federal laws such as the Clean Water Act and the  Endangered Species Act; executive orders; agency guidance; and state  and local laws. As reported in 2011 by CRS, NEPA functions as an  “umbrella” statute; any study, review, or consultation required by any  other law that is related to the environment should be conducted within  the framework of the NEPA process.
As a result, the biggest challenge in determining the costs and benefits of  NEPA is separating activities under NEPA from activities under other  environmental laws. According to DOT officials, the dollar costs for  developing a NEPA analysis reported by agencies also includes costs for  developing analyses required by a number of other federal laws,  executive orders, and state and local laws, which potentially could be a  significant part of the cost estimate. Similarly, DOD officials stated that  NEPA is one piece of the larger environmental review process involving  many environmental requirements associated with a project. As noted by  officials from the Bureau of Reclamation within Interior, the NEPA process  by design incorporates a multitude of other compliance issues and  provides a framework and orderly process—akin to an assembly line— which can help reduce delays. In some instances, a delay in NEPA is the  result of a delay in an ancillary effort to comply with another law,  according to these officials and a wide range of other sources.
section_title: Some Information Is Available on the Frequency and Outcome of NEPA Litigation
paragraphs: Some information is available on the frequency and outcome of NEPA  litigation. Agency data, interviews with agency officials, and available  studies indicate that most NEPA analyses do not result in litigation,  although the impact of litigation could be substantial if a lawsuit affects  numerous federal decisions or actions in several states. The federal  government prevails in most NEPA litigation, according to CEQ and  NAEP data, and legal studies.
subsections: section_title: Available Data Show That Most NEPA Analyses Do Not Result in Litigation, but Individual Cases Can Have Substantial Impacts
paragraphs: Agency data, interviews with agency officials, and available studies  indicate that most NEPA analyses do not result in litigation. While no  governmentwide system exists to track NEPA litigation or its associated  costs, NEPA litigation data are available from CEQ, the Department of  Justice, and NAEP. Appendix IV describes how these sources gather  information in different ways for different purposes.
The number of lawsuits filed under NEPA has generally remained stable  following a decline after the early years of implementation, according to  CEQ and other sources. NEPA litigation began to decline in the mid- 1970s and has remained relatively constant since the late 1980s, as  reported by CRS in 2007. More specifically, 189 cases were filed in  1974, according to the twenty-fifth anniversary report of CEQ. In 1994,  106 NEPA lawsuits were filed. Since that time, according to CEQ data,  the number of NEPA lawsuits filed annually has consistently been just  above or below 100, with the exception of a period in the early- and mid- 2000s. In 2011, the most recent data available, CEQ reported 94 NEPA  cases, down from the average of 129 cases filed per year from 2001  through 2008. In 2012, U.S. Courts of Appeals issued 28 decisions  involving implementation of NEPA by federal agencies, according to  NAEP data.
Although the number of NEPA lawsuits is relatively small when compared  with the total number of NEPA analyses, one lawsuit can affect numerous  federal decisions or actions in several states, having a far-reaching  impact. In addition to CEQ regulations and an agency’s own regulations,  according to a 2011 CRS report, preparers of NEPA analyses and  documentation may be mindful of previous judicial interpretation in an  attempt to prepare a “litigation-proof” EIS.an effort may lead to an increase in the cost and time needed to complete  NEPA analyses but not necessarily to an improvement in the quality of  the documents ultimately produced.
section_title: The Federal Government Prevails in Most NEPA Litigation
paragraphs: The federal government prevails in most NEPA litigation, according to  CEQ and NAEP data and other legal studies. CEQ annually publishes  survey results on NEPA litigation that identify the number of cases  involving a NEPA-based cause of action; federal agencies that were  identified as a lead defendant; and general information on plaintiffs (i.e.,  grouped into categories, such as “public interest groups” and “business  groups”); reasons for litigation; and outcomes of the cases decided during  the year. In general, according to CEQ data, NEPA case outcomes are  about evenly split between those involving challenges to EISs and those  involving other challenges to the adequacy of NEPA analyses (e.g., EAs  and CEs). The federal government successfully defended its decisions in  more than 50 percent of the cases from 2008 through 2011. For example,  in 2011, 99 of the 146 total NEPA case dispositions—68 percent— reported by CEQ resulted in a judgment favorable to the federal agency  being sued or a dismissal of the case without settlement. In 2011, that  rate increased to 80 percent if the 18 settlements reported by CEQ were  considered successes. However, the CEQ data do not present enough  case-specific details to determine whether the settlements should be  considered as favorable dispositions. The plaintiffs, in most cases, were  public interest groups.
Reporting litigation outcome data similar to CEQ’s, a January 2014 article  on Forest Service land management litigation found that the Forest  Service won nearly 54 percent of its cases and lost about 23 percent.  About 23 percent of the cases were settled, which the study found to be  an important dispute resolution tool. Litigants generally challenged  logging projects, most frequently under the National Environmental Policy  Act and the National Forest Management Act. The article found that the  Forest Service had a lower success rate in cases where plaintiffs  advocated for less resource use (generally initiated by environmental  groups) compared to cases where greater resource use was advocated.  The report noted that environmental groups suing the Forest Service for  less resource use not only have more potential statutory bases for legal  challenges available to them than groups seeking more use of national  forest resources, but there are also more statutes that relate directly to  enhancing public participation and protecting natural resources.
Other sources of information also show that the federal government  prevails in most NEPA litigation. For example, NAEP’s 2012 annual  NEPA report stated that the government prevailed in 24 of the 28 cases  (86 percent) decided by U.S. Courts of Appeals. A NEPA legal treatise  similarly reports that “government agencies almost always win their case  when the adequacy of an EIS is challenged, if the environmental analysis  is reasonably complete. Adequacy cases raise primarily factual issues on  which the courts normally defer to the agency. The success record in  litigation is more evenly divided when a NEPA case raises threshold  questions that determine whether the agency has complied with the  statute. An example is a challenge to an agency decision that an EIS was  not required. Some lower federal courts are especially sensitive to agency  attempts to avoid their NEPA responsibilities.” NAEP also provides  detailed descriptions of cases decided by U.S. Courts of Appeals in its  annual reports.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this product to the Council on Environmental  Quality (CEQ) for governmentwide comments in coordination with the  Departments of Agriculture, Defense, Energy, Interior, Justice, and  Transportation, and the Environmental Protection Agency (EPA). In  written comments, reproduced in appendix V, CEQ generally agreed with  our findings. CEQ and federal agencies also provided technical  comments that we incorporated, as appropriate.
We are sending copies of this report to the appropriate congressional  committees; Chair of the Council on Environmental Quality; Secretaries of  Defense, Energy, the Interior, and Transportation; Attorney General;  Chief of the Forest Service within the Department of Agriculture;  Administrator of EPA; and other interested parties. In addition, the report  is available at no charge on the GAO website at http://www.gao.gov.
If you or your staff members have any questions about this report, please  contact us at (202) 512-3841 or fennella@gao.gov; or gomezj@gao.gov;  and (202) 512-4523 or leporeb@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last   page of this report. GAO staff who made key contributions to this report  are listed in appendix VI.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This appendix provides information on the scope of work and the  methodology used to collect information on how we described the (1)  number and type of National Environmental Policy Act (NEPA) analyses,  (2) costs and benefits of completing those analyses, and (3) frequency  and outcomes of related litigation. We included available information on  both costs and benefits to be consistent with standard economic  principles for evaluating federal programs and generally accepted  government auditing standards.
To respond to these objectives, we reviewed relevant publications,  obtained documents and analyses from federal agencies, and interviewed  federal officials and individuals from academia and a professional  association with expertise in conducting NEPA analyses. Specifically, to  describe the number and type of NEPA analyses and what is known  about the costs and benefits of NEPA analyses, we reported information  identified through the literature review, interviews, and other sources. We  selected the Departments of Defense, Energy, the Interior, and  Transportation and the Forest Service within the U.S. Department of  Agriculture for analysis because they generally complete the most NEPA  analyses. Our findings for these agencies are not generalizeable to other  federal agencies.
To assess the availability of information to respond to these objectives,  we (1) conducted a literature search and review with the assistance of a  technical librarian; (2) reviewed our past work on NEPA and studies from  the Congressional Research Service; (3) obtained documents and  analyses from federal agencies; and (4) interviewed officials who oversee  federal NEPA programs from the Departments of Defense, Energy, the  Interior, Justice, and Transportation; the Forest Service within the  Department of Agriculture; the Environmental Protection Agency (EPA);  the Council on Environmental Quality (CEQ) within the Executive Office of  the President; and individuals with expertise from academia and the  National Association of Environmental Professionals (NAEP)—a  professional association representing private and government NEPA  practitioners.
Specifically, to describe the number and type of NEPA analyses from  calendar year 2008 through calendar year 2012, we analyzed data  identified through the literature review and interviews. We focused on  data and documents maintained by CEQ, EPA, and NAEP. CEQ and  NAEP periodically report data on the number of certain types of NEPA  analyses, and EPA maintains a database of Environmental Impact  Statements, one of its roles in implementing NEPA. To generate  information on the number of Environmental Impact Statements from  EPA’s database, we sorted the data by calendar year and counted the  number of analyses for each year. We did not conduct an extensive  evaluation of this database, although a high-level analysis discovered  potential inconsistencies. For example, EPA’s database contained entries  with the same unique identifier, making it difficult to identify the exact  number of NEPA analyses. We discussed these inconsistencies with EPA  officials, who told us that they were aware of certain errors due to manual  data entry and the use of different analysis methods. These officials said  that EPA EIS data provided to others may differ because EPA periodically  corrects the manually entered data. We did not count duplicate records in  our analysis of EPA’s data. We believe these data are sufficiently reliable  for the purposes of this report.
To describe what is known about the costs and benefits of NEPA  analysis, we reported the available information on the subject identified  through the literature review and interviews. To describe the frequency  and outcome of NEPA litigation we (1) reviewed laws, regulations, and  agency guidance; (2) reviewed NEPA litigation data generated by CEQ  and NAEP; (3) interviewed Department of Justice officials; and (4)  reviewed relevant legal studies.
Information from these sources is cited in footnotes throughout this report.  To answer the various objectives, we relied on data from several sources.  To assess the reliability of data collected by agencies and NAEP, we  reviewed existing documentation, when available, and interviewed  officials knowledgeable about the data. We found all data sufficiently  reliable for the purposes of this report.
We conducted this performance audit from June 2013 to April 2014 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
section_title: Appendix II: Summary of Federal NEPA Data Collection Efforts
paragraphs: Federal National Environmental Policy Act (NEPA) data collection efforts  vary by agency. The Council on Environmental Quality’s (CEQ) NEPA  implementing regulations set forth requirements that federal agencies  must adhere to, and require federal agencies to adopt their own  procedures, as necessary, that conform with NEPA and CEQ’s  regulations. Federal agencies decide how to apply CEQ regulations in  the NEPA process. According to a 2007 Congressional Research Service  (CRS) report, the CEQ regulations were meant to be generic in nature,  with individual agencies formulating procedures applicable to their own  projects. The report states that this approach was taken because of the  diverse nature of projects and environmental impacts managed by federal  agencies with unique mandates and missions. Consequently, NEPA  procedures vary to some extent from agency to agency, and  comprehensive governmentwide data on NEPA analyses are generally  not centrally collected.
As stated by a CEQ official, “there is no master NEPA spreadsheet, and  there are many gaps in NEPA-related data collected across the federal  government.” To obtain information on agency NEPA activities, the official  said that CEQ works closely with its federal agency NEPA contact group,  composed of key officials responsible for implementing NEPA in each  agency. CEQ meets regularly with these officials and uses this network to  collect NEPA-related information through requests for information,  whereby CEQ distributes a list of questions to relevant agencies and then  collects and reports the answers. According to CEQ officials, NEPA data  reported by CEQ are generated through these requests, which have  quality assurance limitations because related activities at federal  departments are themselves diffused throughout various offices and  bureaus.
Of the agencies we reviewed, the Departments of Defense, the Interior,  and Transportation do not centrally collect information on NEPA analyses,  allowing component agencies to collect the information, whereas the  Department of Energy and the Forest Service within the Department of  Agriculture aggregate certain data.
Department of Defense (DOD). Each of the military services and defense  agencies collects data on NEPA analyses, but DOD does not aggregate  information that is collected on the number and type of NEPA analyses at  the departmentwide level. Data collection within the military services and  agencies is decentralized, according to DOD officials. For example, the  Army collects Environmental Impact Statement (EIS) data at the  Armywide level, and responsibility for Environmental Assessments (EA)  and Categorical Exclusions (CE) are delegated to the lowest possible  command level. DOD officials said that each of the services and defense  agencies works to maintain a balance between the work that needs to be  completed and the management effort needed to accomplish that work.  While the level of information collected may vary by service or defense  agency, each collects the information that it has determined necessary to  manage its NEPA workload. According to these officials, every new  information system and data call must generally come from existing  funding, taking resources from other tasks.
Department of the Interior (Interior). Data are not collected at the  department level, according to Interior officials, and Interior conducts its  own departmentwide data calls to component bureaus and entities  whenever CEQ asks for NEPA-related information. The data collection  efforts of its individual bureaus vary considerably. For example, the  National Park Service uses its Planning, Environment, and Public  Comment (PEPC) system as a comprehensive information and public  comment site for National Park Service projects. Other Interior bureaus  are beginning to track information or rely on less formal systems and not  formalized databases. For example, the Bureau of Indian Affairs uses its  internal NEPA Tracker system—started in September 2012—which the  bureau states is to collect information on NEPA analyses to create a  better administrative record to potentially identify new categories of CEs  for future development and use. Prior to the NEPA Tracker system, the  Bureau of Indian Affairs tracked NEPA analyses less formally, with  varying information quality across the bureau’s different entities,  according to agency officials. According to Bureau of Land Management  officials, the bureau has developed and is currently implementing its  ePlanning system, a comprehensive, bureau-wide, Internet-based tool for  writing, reviewing, publishing, and receiving public commentary on land  use plans and NEPA documents. The tool is fully operational, and the  bureau expects to complete implementation in 2015. At the Bureau of  Reclamation, NEPA activities are cataloged and tracked by each region  or area office according to local procedures, and the information on the  number and type of NEPA analyses resides with these offices. NEPA  information at the Fish and Wildlife Service, according to agency officials,  is collected at the refuge level.
Department of Transportation (DOT). According to agency officials, each  DOT administration—such as the Federal Highway Administration  (FHWA), which funds highway projects; the Federal Motor Carrier Safety  Administration, which develops commercial motor vehicle and driver  regulations; and the Federal Aviation Administration, which is responsible  for, among other things, the nation’s air traffic control system—has its  own NEPA operating and data collection procedures that track NEPA- related information to varying degrees because each mode of  transportation has different characteristics and needs. Environmental  reviews for highway projects funded by FHWA have long been of interest  to Congress and federal, state, and local stakeholders. FHWA and its 52  division offices have traditionally used an internal data system to track  EIS documents. FHWA officials told us that they are in the process of  replacing the agency’s legacy system with the new Project and Program  Action Information (PAPAI) system, which went online in March 2013.  PAPAI is capable of tracking information on EISs, EAs, and CEs,  including project completion time frames, but its use is not mandatory,  according to DOT officials.
Department of Energy (DOE). The Office of NEPA Policy and Compliance  within DOE maintains a website where it posts extensive agencywide  NEPA documentation, including information on the number and type of  NEPA analyses completed since the mid-1990s and a series of quarterly  lessons learned reports documenting certain NEPA performance metrics,   DOE’s September 2013 quarterly  including information on time and cost. report documents available information on its NEPA analysis workload,  completion times, and costs from 2003 through 2012. DOE began  tracking cost and completion time metrics in the mid-1990s because it  was concerned about the timeliness and cost of NEPA reviews.officials told us they collect these data because, in their view, “what gets  measured gets done.” Making DOE NEPA analyses easily available  allows others to apply the best practices and potentially avoid costly  litigation, according to DOE officials.
Department of Agriculture’s Forest Service. The Forest Service’s  computer system, known as the Planning, Appeals, and Litigation  System, provides information for responding to congressional requests for  NEPA data, to support preparation for responding to lawsuits, and about  overall project objectives and design. As stated by agency officials, data  from the system can be used to identify trends in the preparation of NEPA  analyses over time. This information can be valuable to managers in  managing overall NEPA compliance and can identify innovative ways to  deal with recurring environmental issues that affect projects, according to  Forest Service officials. The system also provides tools to help the  agency meet NEPA requirements, including automatic distribution of the  schedule of proposed NEPA actions, a searchable database of draft  EISs, and electronic filing of draft and final EISs to EPA.
CEQ also identified as a best practice the service’s electronic  Management of NEPA (eMNEPA) pilot—a suite of web-based tools and  databases to improve the efficiency of environmental reviews by enabling  online submission and processing of public comments, among other  things. On March 17, 2011, CEQ invited members of the public and  federal agencies to nominate projects employing innovative approaches  to complete environmental reviews more efficiently and effectively. On  August 31, 2011, CEQ announced that eMNEPA was selected as part of  the first NEPA pilot project. CEQ officials told us that they would prioritize  the use of CEQ oversight resources to focus on identifying,  disseminating, and encouraging agencies to use their additional  resources in improving operational efficiency through tools like eMNEPA  rather than focusing on improved data collection and reporting.  Specifically, CEQ officials said that information technology tools that  enable easy access to relevant technical information across the federal  government are also of value in enhancing the ability of agencies to  conduct efficient and timely NEPA environmental reviews.
section_title: Appendix III: CEQ NEPA Time Frame Guidelines
paragraphs: “. . . even large complex energy projects would require only about 12 months for the  completion of the entire EIS process. For most major actions, this period is well within the  planning time that is needed in any event, apart from NEPA. The time required for the  preparation of program EISs may be greater. The Council also recognizes that some  projects will entail difficult long-term planning and/or the acquisition of certain data which  of necessity will require more time for the preparation of the EIS. Indeed, some proposals  should be given more time for the thoughtful preparation of an EIS and development of a  decision which fulfills NEPA’s substantive goals. For cases in which only an environmental  assessment will be prepared, the NEPA process should take no more than 3 months, and  in many cases substantially less, as part of the normal analysis and approval process for  the action.”
CEQ’s National Environmental Policy Act (NEPA) regulations do not  specify a required time frame for completing NEPA analyses. The  regulations state that CEQ has decided that prescribed universal time  limits for the entire NEPA process are too inflexible. The regulations also  state that federal agencies are encouraged to set time limits appropriate  to individual actions and should take into consideration factors such as  the potential for environmental harm, size of the proposed action, and  degree of public need for the proposed action, including the  consequences of delay. CEQ’s March 6, 2012, memorandum on  Improving the Process for Preparing Efficient and Timely Environmental  Reviews under the National Environmental Policy Act encourages  agencies to develop meaningful and expeditious timelines for  environmental reviews, and it amplifies the factors an agency should take  into account when setting time limits, noting that establishing appropriate  and predictable time limits promotes the efficiency of the NEPA process.  The CEQ regulations also require agencies to reduce delay by, among  other things, integrating the NEPA process into early project planning,  emphasizing interagency cooperation, integrating NEPA requirements  with other environmental review requirements, and adopting  environmental documents prepared by other federal agencies.
section_title: Appendix IV: Sources of NEPA Litigation Data
paragraphs: In general, there is no governmentwide system to track National  Environmental Policy Act (NEPA) litigation and its associated costs. The  Council on Environmental Quality (CEQ), the Department of Justice, and  the National Association of Environmental Professionals (NAEP) gather  NEPA litigation information in different ways for different purposes.
CEQ collects NEPA litigation data through periodic requests for  information, whereby it distributes a list of questions to the general  counsel offices of relevant agencies and then collects and reports the  information on its website. CEQ’s NEPA litigation survey presents  information on NEPA-based claims brought against agencies in court,  including aggregated information on types of lawsuits and who brought  the suits. The survey results do not present information on the cost of  NEPA litigation because, according to officials from several of the  agencies we reviewed, agencies do not track this information. For  example, Forest Service officials told us that they do not centrally track  the cost or time associated with the preparation for litigation. As another  example, the Department of Energy’s litigation data do not include the  cost of litigation or the time spent on litigation-related tasks, although it  includes the number of NEPA-related cases over time.
The Department of Justice defends nearly all federal agencies when they  face NEPA litigation. Management System database tracks limited information on NEPA cases  handled by the Environment and Natural Resources Division, and the  Executive Office for U.S. Attorneys case management system, called the  Legal Information Office Network System, tracks NEPA cases at  individual U.S. Attorneys’ Offices to some extent. However, Department  of Justice officials told us that these systems do not interface with each  other, so it would be impossible to gather comprehensive information on  NEPA litigation from the Department of Justice.
Such litigation is handled both by the Department of Justice’s Environment and Natural  Resources Division and by individual U.S. Attorneys’ Offices depending upon the agency,  the type of case, and the expertise of the department’s personnel. Agency personnel  provide the Department of Justice with the administrative record that forms the basis of  judicial review and provide assistance throughout the litigation process, as needed.
Further, Department of Justice officials told us that the department is not  able to comprehensively identify all NEPA litigation because a single case  could have numerous other environmental claims in addition to a single  NEPA claim. In such instances, the Environment and Natural Resources  Division’s Case Management System may not capture every claim raised  in the case. As a result, the Department of Justice does not track trends  in NEPA litigation or staff hours spent on NEPA cases. The cost of  collecting the information would outweigh the management benefits of  doing so, according to these officials.
The Department of Justice’s NEPA litigation data are not comparable to  CEQ’s because the department’s system is designed to track cases,  while CEQ provides information on NEPA events—such as the number of  cases filed, number of injunctions or remands, and other decisions. There  could be multiple NEPA events or decisions related to a single case.  Department of Justice officials stated that they would not be able to  reconcile CEQ’s information with information in Department of Justice  systems.
NEPA litigation data collected by the third source—NAEP—differ from  those collected by CEQ or the Department of Justice. NAEP collects  information on NEPA cases decided by U.S. Courts of Appeals because  these cases are generally the most significant to the NEPA practitioners  that are NAEP’s members, according to NAEP officials. The NAEP report  contains case study summaries of the latest developments in NEPA  litigation to help NEPA practitioners understand how to account for new  court-mandated requirements in NEPA analyses and does not attempt to  track all NEPA litigation across the government.
section_title: Appendix V: Comments from the Council on Environmental Quality
section_title: Appendix VI: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: In addition to the individuals named above, Anne Johnson and Harold  Reich (Assistant Directors); Ronnie Bergman; Cindy Gilbert; Richard P.  Johnson; Terence Lam; Alison O’Neill; Giuseppe Thompson; and John  Wren made key contributions to this report.