NEPA Scope of Analysis in the Federal Permitting Context: The Federal Tail that Risks Wagging the Non-Federal Dog

June 3, 2007

Deidre G. Duncan, Brent A. Fewell

The National Environmental Policy Act (NEPA) requires federal agencies to consider the environmental impacts of “Federal actions,” not state or private actions. The proper scope of an agency’s NEPA analysis is determined by the extent of the “federal” action in question. For example, when the federal action at issue is wholly a federal undertaking, such as a federally constructed highway, it is clear that the scope of the NEPA analysis extends to the entire federal project. Yet, when the federal action is the issuance of a federal permit for a small component of an otherwise private or non-federal project, questions often arise regarding the proper scope of the federal action and the appropriate scope of the NEPA review. This situation is often referred to as the “small federal handle” problem....

NEPA Scope of Analysis in the Federal Permitting Context