What Is a Major Federal Action
Heaartwood,INC. ... 2000)
Zhang Xi
Introduction
The term ¡°major federal action¡± has two sides of meaning.On the one hand ,it is federal .On the other hand ,it is major.If it is federal,it must reguires a federal ¡°nexus,¡± or connection.If it is major ,it mean ¡°reinforces but does not have a meaning independent of significant¡± It requires substantial planning ,time resources or expenditure. ... NEPA applies only to "major Federal actions significantly affecting the quality of the human environment." Until there is a proposal for a major federal action , NEPA does not come into effect. A proposal "exists at that stage of an action when an agency. ... " An intent, without more, does not constitute a "proposal" for federal action. What a state or private entity plans or even does prior to seeking Federal approval for a permit for a project does not trigger a proposal for Federal action. ... In Count II, Heartwood alleged that when the forest Service ("Service") adopted a rule excluding certain classes of Service action from procedural safeguards designed to determine the environmental impact of those actions, it violated the National environmental Policy Act ("NEPA"), 42 U. ...
Discussion
In this case,the key question is whether the promulgation of CE rules can be considered a major federal action of the type listed under sec. ... In response, the Service contends that when it established the CE rules,it was adopting an agency procedure, not instituting a "federal action" to which NEPAs EA and EIS regulations apply. ... So,the key is to solve the question whether the promulgation of CE rules was a major federal action first.
I believe the court ( district court and court of appeals )made the right decision that the promulgation of CE rules is not a major federal action and did not violate NEPA. ...
Is this federal ?
The CEQ defines "major Federal action" as "actions with effects that may be major and which are potentially subject to Federal control and responsibility. ... " CEQ regulations indicate the categories in which federal actions¡°tend to fall. ... (2)The adoption of ¡°formal plans ¡which guide or prescribe alternative uses of federal resources,upon which future agency actions will be based. ... (4)The approval of specific projects such as ¡°actions approved by permit or other regulatory decision as well as federal and federally assisted activities.
Speaking to this case, the adoption of a list of categories is not implementation of a specific policy or statutory program,nor of a plan for action in any sense of the phrase,let alone of programs,or the approval of specific projest.So it is difficult to judge the Service action is a federal acton.
On the contrary,the Service action creating CEs looks more like an implementing procedure than a federal action of the type contemplated in 42 U. ... When the agency is a department, major subunits are encouraged (with the consent of the department) to adopt their own procedures. ... The regulations state ,the agency may include "specific criteria for and identification of those typical classes of action . ... And the action is just an agency procedure. ...
Because the Service and other agencies are authorized under NEPA to create their own procedures and to utilize CEs in order to make a threshold determination as to which actions normally have a significant effect on the environment,the Service¡¯s action to adopt the new policy and procedure for categorical exclusions can not be questioned.
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