APPLYING THE NATIONAL ENVIRONMENTAL POLICYACT'S (NEPA) FUNCTIONAL EQUIVALENCE DOCTRINETO THE NATIONAL OIL AND HAZARDOUS SUBSTANCESPOLLUTION CONTINGENCY PLAN (NCP)

摘要

NEPA is a policy and procedural statute that makes environmentalrnprotection a part of the mandate of every federal agency and department.rnNEPA was enacted to establish a framework for publicrnreview of the environmental impacts of actions carried out by thernfederal government. NEPA anticipates that most federal actionsrnare planned in detail and are implemented over the course ofrnmonths or years. This planning and implementation cycle, allowsrndetailed analysis of specific project impacts. Environmental responsernactions taken by the United States Environmental ProtectionrnAgency (EPA) or the United States Coast Guard (CG) underrnthe regulatory authorities established by the National Oil andrnHazardous Substances Pollution Contingency Plan (NCP) are alsornconsidered specific federal actions. However, the nature of thesernspecific actions varies greatly depending on the exact nature ofrneach incident; therefore traditional NEPA planning is neitherrnpossible nor appropriate. The NCP establishes a mechanism ofrncontinuous environmental assessment and review through the networkrnof Regional Response Teams (RRT), local emergency arearnplanning committees, Area Contingency Planning (ACP) Committees,rnand the availability of local area contingency plans to thernpublic on a contingency basis for review or comment. Federalrncourts have allowed functional equivalence doctrine to apply exclusivelyrnto EPA because of their adherence to “substantive andrnprocedural standards ensuring full and adequate consideration ofrnenvironmental issues.” These decisions have held up the interpretationrnthat NEPA compliance is unnecessary where the agency isrnindependently required to consider environmental issues. The EPArnand the CG share the responsibility of protecting public health,rnwelfare, and environment from discharges or threats of dischargesrnof oil and/or releases or threats of a releases of hazardous substances,rnpollutants and/or contaminants under the planning, preparedness,rnand response scheme established by the NCP andrncarried out by those working within the National Response Systemrn(NRS). For this reason any planning, preparedness, and responsernactivities undertaken by EPA and CG personnel to mitigate accidentalrnor intentional discharges of oil or releases of hazardous substances, pollutants, and/or contaminants within the purview ofrnthe NCP should be interpreted as functionally equivalent to the re-rnrequirementsrnfound within NEPA.