What projects trigger CEQA and NEPA? 

Monument with people with the word public on the front.The California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) were created with a similar purpose—they require decision makers to make informed decisions about the environmental impacts of projects and actions they approve. 

CEQA applies to discretionary projects, meaning the state or local agency approving the project needs to exercise its judgment when deciding whether to approve the project. CEQA is triggered for all “activities directly undertaken by a governmental agency, activities financed in whole or in part by a governmental agency, or private activities which require approval from a governmental agency” (CEQA Guidelines, § 15002, subd. (b)(1)-(3)). 

NEPA applies to any action undertaken by a federal agency. It applies to broad actions, such as adoption of policy (i.e. rules or regulations), programs, and policies, and also applies to specific projects (i.e. construction and management activities, and actions approved by permit or other regulatory decision as well as federal and federally assisted activities) (40 C.F.R. § 1508.18(b)). NEPA also applies to actions on private lands which are under any federal authority for approvals, permits, or funding. Each federal agency (e.g., USDA Forest Service or BLM) drafts its own NEPA regulations providing specific rules and policies for how that agency implements NEPA. These regulations can be found in the Code of Federal Regulations. 

Key Differences

CEQA is required for projects that fall under the discretionary authority of state and local agencies. NEPA is required for all federal actions, including private actions under federal discretionary authority. 

Documentation

CEQA and NEPA follow a similar process of environmental review. Listed below are the documents required by CEQA and NEPA as they relate to their counterpart. CEQA was crafted to mirror NEPA, but all documents still have differences. 

CEQA  NEPA 
Initial Study (IS)  Environmental Assessment (EA) 
Negative Declaration (ND)  Finding of No Significant Impact (FONSI) 
Mitigated Negative Declaration (MND)  Mitigated Finding of No Significant Impact (Mitigated FONSI) 
Environmental Impact Report (EIR)  Environmental Impact Statement (EIS) 
Notice of Determination (NOD)  Record of Decision (ROD) 

Process

The EIR and the EIS processes are procedural components of CEQA and NEPA. The parallel steps in the process are listed below. A key distinction between the EIR and EIS is in determining if and when they are required. 

Under CEQA, an EIR is required if substantial evidence supports a fair argument that a project may have a significant impact, even if other substantial evidence indicates that the impact will not be significant.  

Under NEPA, an EIS is required when there is the potential for a proposed action to have a significant impact on the human environment (40 C.F.R. § 1501.3). Deference is given to the agency’s determination based on its assessment of the context and intensity of the potential impacts (40 C.F.R. § 1508.27). 

   
Environmental Impact Report (EIR)  Environmental Impact Statement (EIS) 
Notice of Preparation (NOP)  Notice of Intent (NOI) 
Scoping Comment Period  Scoping Comment Period 
Draft EIR (DEIR)  Draft EIS (DEIS) 
State Clearinghouse Distribution and Public Notice  Notice of Availability (NOA) 
Public Agency Review and Public Comment Period  Public Agency Review and Public Comment Period 
Final EIR (FEIR)  Final EIS (FEIS) 
Response to Comments  N/A 
N/A  30 Day Review Period (agency may provide public comment period) 
Agency Decision  Agency Decision 
Notice of Determination (NOD)  Record of Decision (ROD) 

Exemptions and Exclusions

CEQA and NEPA both define categories of projects that don’t require preparation of environmental review documents (e.g. EIRs or EISs) because the agency has determined these projects do not have a significant effect on the environment. CEQA calls these categorical exemptions, while NEPA calls them categorical exclusions. Projects that are “categorically exempted” or “categorically excluded” receive very minimal environmental review. These are commonly abbreviated as “CEs” or “CatExes.”  

CEQA provides categorical exemptions, which apply to certain classes of projects. CEQA also contains statutory exemptions written in both its CEQA Guidelines and in other state laws. There are a number of exceptions to categorical exemptions that make them inapplicable to projects and require the typical CEQA review to take place, these are described in § 15300.2. The lead agency decides if an exemption, or an exception to an exemption, applies to the project, and if it decides a project is exempt it may (but is not required to) file a Notice of Exemption effectively approving the project. 

NEPA provides categorical exclusions for certain specified actions. The federal agencies designate their own categorical exclusions in their “Agency NEPA Implementing Procedures.” Once a categorical exclusion is applied, no additional environmental review is needed. (Note: Some categorical exclusions do not apply if extraordinary circumstances exist that trigger a higher level of environmental review. Closely review the particular categorical exclusion that applies to your project to determine if there are any extraordinary circumstances that would preclude the use of the exclusion). NEPA also contains statutory exemptions, which are contained within written laws outside of NEPA.  

Key Differences 

  • CEQA has categorical exemptions that exist in the general CEQA guidelines. 
  • NEPA has categorical exclusions specific to each agency. 
  • CEQA provides statutory exemptions in the CEQA guidelines and in laws outside of CEQA, but NEPA only has statutory exemptions in laws outside of NEPA. 

Significance

In both CEQA and NEPA, the term “significance” plays a key role in shaping the environmental review process. 

Under CEQA, environmental review is based on “significant impacts,” defined as “a substantial, or potentially substantial, adverse change within the area affected by the project” (CEQA Guidelines, § 15382). CEQA relies on “significance thresholds,” defined as “an identifiable quantitative, qualitative, or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant” (id. at § 15064.7). CEQA documents identify each significant impact (id. at § 15126.2, subd. (a)). If a project has any potentially significant impacts, the impacts must be addressed by a MND or EIR.  

Under NEPA, significance is defined in terms of context and intensity. Using context, impacts are considered within the setting in which they occur (40 C.F.R. § 1508.27(a)). Intensity refers to the severity of the impact (id. at § 1508.27(b)). If an action will have one or more significant impacts, the impacts must be addressed in a Mitigated Finding of No Significant Impact (“FONSI”) or an EIS. 

Impacts

Impacts are handled similarly by CEQA and NEPA, but there are key differences.  

Under CEQA, all potentially significant effects must be addressed. Less than significant impacts need only be briefly discussed. Impacts are normally to be measured against the current environmental setting, as it exists at the time the notice of preparation is published or at the time environmental analysis is commenced.  

Under NEPA, direct and indirect impacts must be addressed in proportion to significance. The effects are measured against the no action alternative. 

There are many slight, but important, differences between them. Different impacts may require distinct levels of analysis. Some impacts specifically require analysis by one process and not the other. For example, CEQA requires analysis to address the impacts of greenhouse gas emissions, yet NEPA does not. 

Alternatives

CEQA and NEPA must assess project alternatives. 

CEQA and NEPA do have several similarities. They both include “no action” or “no project” alternatives that are functionally the same. These analyze the current and future state of the environmental setting without the project. They also both require identification of the environmentally preferred alternative.  

With CEQA’s focus on mitigation, the EIR must look at several mitigation alternatives. CEQA requires discussion of alternatives that “are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly” (CEQA Guidelines, § 15126.6, subd. (b)). This typically results in the analysis of several alternatives, generally more than would be produced under NEPA. 

NEPA’s requirement of “devoting substantial treatment” to each alternative results in more detailed looks at alternatives than CEQA. NEPA alternatives, however, are usually restricted to those that meet the agency’s purpose and need (40 C.F.R. § 1502.14). Although multiple alternatives should be considered, this restriction generally produces less alternatives than is produced under CEQA. 

Mitigation

CEQA and NEPA both require that the agencies consider mitigations. However, there is a stark difference between implementation requirements. 

CEQA requires the adoption of any feasible mitigation measures for all significant adverse environmental impacts. A Statement of Overriding Considerations (SOC) is required if the mitigation does not reduce the impacts to less than significant. If challenged, the courts will determine if the agency’s mitigations were sufficient or whether the SOC was reasonable. 

NEPA, on the other hand, does not require mitigation for environmental impacts, regardless of significance. Agencies still must consider mitigation measures for all adverse environmental impacts. Yet, NEPA does not require the agency to implement mitigation strategies; it only requires that the agency justify its decision if it does not implement mitigation. Unlike CEQA, if the agency’s decision is challenged, the courts do not decide if the agency’s decision was reasonable. They only look to see that the agency took the proper procedural steps in evaluating the full environmental impacts of the action. 

Key Differences 

  • CEQA requires mitigation for all significant adverse environmental impacts. 
  • NEPA does not require mitigation for environmental impacts, just that all impacts are properly considered. 

Findings

Findings are required by both CEQA and NEPA before final decisions can be made. 

Under CEQA, the findings drive the environmental review process. CEQA documents must first determine whether impacts are significant or not. The initial finding then triggers the duty to mitigate or avoid such impacts. This determines which impacts must be addressed in the agency’s final findings, since findings are required only for each significant impact identified in the EIR. 

Under NEPA, findings are generally supported with information developed during the environmental review process. The findings that there are no significant impacts are explained in the FONSI, or the findings on the significant impacts are documented in the ROD.

Public Review Period

A public review period is required by both CEQA and NEPA. 

Under CEQA, the Negative Declaration public review period should be no less than 20 days, and no less than 30 days if a state agency is the lead agency. The EIR public review period should be no less than 30 days, and no less than 45 days with state involvement. It is usually limited to a maximum of 60 days, unless there are unusual circumstances (including participation in a joint process with federal agencies, subject to NEPA). 

Under NEPA, when a FONSI for an EA is issued a public review period is typically 30 days and is required when “the proposed action is or is closely similar to one that normally requires the preparation of an environmental impact statement” or “the nature of the proposed action is one without precedent” (40 C.F.R. section 1501.6(a)(2)). The EIS public review period should be no less than 45 days, with some going much longer. Once the Final EIS is filed, there is a mandatory 30-day waiting period before a decision can be made (40 C.F.R. section 1506.11). This waiting period can be designated as a public review period. As a standard practice, always check the NEPA implementing procedures of the particular agency preparing the EIS to confirm the public review period.