by Judy Calman, Staff Attorney

It is a common joke among environmental lawyers and organizations that when discussing environmental law and policy we speak only in acronyms. It is easy to get confused about what these acronyms mean, what they do, and how to use them. A project for the newsletter was proposed to explain the most commonly used terms for our readers, and also frankly, for ourselves.

All of the following laws and acronyms are federal, meaning they do not generally apply to state actions. Some of these laws have small provisions which apply to states (for instance, a state can be held liable under the ESA if it causes the death or harm of a federally listed species) but in terms of requirements, only the federal government is affected.

NEPA: The National Environmental Policy Act of 1969 (42 U.S.C. §4321) is the most comprehensive and far-reaching environmental statute passed at the federal level, and is considered the cornerstone of federal environmental policy. Its purpose is to ensure that before the federal government begins any major projects, a “hard look” is taken at the proposed projects’ potential environmental impacts, and that less environmentally damaging alternatives to the proposed plan are considered. The project plan which is chosen must then be justified by the agency doing the project, although they are not required to choose an environmentally friendly option—any reasonable justification for the chosen plan will usually be upheld by the courts. NEPA is the most litigated environmental statute in the US.

EA: The first step an agency must do when beginning NEPA considerations is an Environmental Assessment. This is a broad sweep of potential environmental impacts—they are usually relatively short reports designed to address the question of whether a more in-depth environmental analysis is required for the proposed project.

FONSI: If the agency decides that the environmental impacts of a proposed project are minimal, the agency has the option through NEPA of issuing a Finding of No Significant Impact. This means that environmental considerations may stop without further study and the agency has fulfilled its NEPA obligations.

EIS: If however, the agency decides through the EA process that further environmental studies are required, the agency must complete an Environmental Impact Statement. An EIS is an in-depth assessment of potential environmental impacts of a proposed federal project, where alternative plans to the proposed project are considered and evaluated. An EIS can take years to prepare, because they often include biological surveys and consultation with several agencies. The EIS is then published in the federal register along with the proposed project and proposed decision. The public can then comment on this process and the agency is required to consider the comments and respond to them. After this “notice and comment” period, the agency can then issue its final decision along with its justifications.

*SEPA*: About a quarter of the states have SEPA’s, which are modeled after NEPA but are State Environmental Policy Acts. Most of them have slightly different acronyms, but “SEPA” has become a sort of catch-all to refer to those kinds of laws. These laws require environmental assessments before major projects are undertaken on state lands or by state agencies. New Mexico does not have a law like this, but a coalition of organizations is working on passing one in the 2011 legislative session. The Wilderness Alliance will update its members and readers on the progress of this effort, as well as how they can help!

FLPMA: The Federal Land Policy and Management Act of 1976 (43 U.S.C. §1701) governs the use of public lands administered through the Bureau of Land Management (BLM). It mandates that the BLM administer its lands in a “multiple use” fashion, maximizing the gains from natural resources while still maintaining the land for public benefits and uses. It requires the BLM to go through a periodic land use planning process, gives Congress the authority to designate federal lands for different purposes, and requires the Secretary of the Interior to establish rules and regulations for public lands. It requires that public lands be managed in such a way as to protect their ecological, historical and scientific integrity, and requires the United States to receive fair market value when public lands are being used.

RMP: A Resource Management Plan is a plan issued by the BLM concerning the federal public land under its jurisdiction. Resource Management Plans are issued every twenty years by every BLM field office. Each BLM field office manages a “resource area”, which is often defined by county lines and encompasses a fairly large geographic area (perhaps the size of three or four counties). An EIS must accompany each RMP, and the RMP must also be published in the federal register and be open to public comment.

ESA: The Endangered Species Act of 1973 (16 U.S.C. §1531) requires the Fish and Wildlife Service (FWS) to list any species whose existence is threatened (what qualifies as threatened is outlined in the statute). A petition to list a species can come from a member of the public, an organization, or the agency itself. Once a species is listed, all federal agencies are required to consult with the Fish and Wildlife Service when proposing a project which may impact that listed species. Fish and Wildlife issues a Biological Opinion to the consulting agency, stating whether they believe there is a harmful impact or not, and whether they would approve the project, not approve the project, or approve it with some stipulations. The federal government, as well as the states and individuals are prohibited from “taking” a listed species, which is defined as killing or harming a listed species in a way which interferes with its feeding, breeding or sheltering. The ESA provides a steep penalty for taking a species ($50,000 and one year in jail for each individual harmed) and includes very few exceptions. There are currently 1395 United States species listed through the Act, approximately 800 of which are flowering plants. There are also many additional species listed that do not occur in the United States, which ensures their protection internationally through CITES, the Convention on International Trade of Endangered Species. CITES, an international treaty, protects any species listed on any participating country’s endangered species list. The United States has listed non-native species to ensure their protection by other treaty members.

CWA: The Clean Water Act of 1972 and Amendments of 1977 (33 U.S.C. §1251) addresses discharges of pollution into bodies of water which are governed by the federal government. Bodies of water under the jurisdiction of the federal government include those waters which touch more than one state, or which have a “significant nexus” to an interstate waterway. The Clean Water Act discusses discharges of pollutants into water by “point sources” like agricultural facilities, factories, oil and gas developments and military bases, as well as discharges by “non-point sources” like storm water run-off from municipal sewer systems. Point sources may not discharge anything into water without an NPDES permit (National Pollution Discharge Elimination System). To receive an NPDES permit, the water quality of the specific body of water involved is considered, and the point source must show that it is using the “best available technology” to dispose of its pollutants. There is no permit requirement in the CWA for non-point sources, but the EPA has enacted several agency programs to address and research them.

CAA: While a preliminary Clean Air Act was passed by Congress in 1963, the major version was passed in 1970 and this was significantly amended in 1990. It was the first federal environmental law to allow for “citizen suits”. The Clean Air Act Amendments of 1990 proposed emissions trading, added provisions for addressing acid rain, ozone depletion and toxic air pollution, and established a national permits program.The Clean Air Act (42 U.S.C. §7401) sets maximum allowable levels in parts per million for each type of air pollutant (sulfur dioxide, etc), and sets standards for car emissions. As technology allows for more pollution to be controlled, the maximum allowable levels go down, requiring industry to use the best available technology to minimize pollution.
In 2007, the Supreme Court ruled in Massachusetts v. EPA that greenhouse gases could be regulated through the Clean Air Act if the EPA decided to consider them an air pollutant (greenhouse gases are currently not listed as a pollutant under the CAA). The court then ordered the EPA to conduct studies and make a determination as to whether greenhouse gases are in fact a pollutant. If it concluded that it is, the EPA would be required under the CAA to set maximum allowable levels of greenhouse gases. This would be a huge step for combating global warming since the same regulations which are currently in place for other pollutants like sulfur dioxide would be in place for greenhouse gases as well. The EPA has since determined that six types of greenhouse gases should be considered pollutants under the CAA, but three states (Texas, Alabama and Virginia) are currently seeking judicial review of that determination.

APA: The Administrative Procedures Act of 1946 (5 U.S.C. §500), while not technically an environmental statute, is still extremely important for environmental issues. It sets the guidelines for how federal agencies run by requiring them to publish their decisions in the federal register, receive public comments, and respond to those comments. It also sets regulations for how some disputes are resolved through Administrative Law Judges.

FOIA: The Freedom of Information Act of 1966 (Public Law 89-554) allows members of the public and state or local governments to access federal records and information. The federal government is not automatically required to disclose any information, but with a formal request it is required to produce most documents and records. Some exceptions to this include National security-sensitive information, trade secrets, and intra-agency memos. FOIA requests are submitted to the agency from which the citizen desires the information. There is a fee associated with document production unless it is shown that the information requested is for the public interest.

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