Environmental Statutes and Executive Orders Relevant to EV Infrastructure
This section of the toolkit describes some environmental statutes and executive orders (EOs) that may commonly be relevant to electric vehicle infrastructure:
- National Environmental Policy Act (NEPA)
- National Historic Preservation Act of 1966 (NHPA)
- Endangered Species Act of 1973 (ESA)
- EO 11988, “Floodplain Management”
- Clean Water Act (CWA)
- Section 4(f) of the USDOT Act of 1966
- EO 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations”
The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970, “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality” (42 U.S.C. §§4321-4370h, 40 CFR Parts 1500-1508). NEPA requires all Federal agencies to consider their actions’ impacts to the human environment as part of their decision-making process; compliance with NEPA and related environmental laws is required for EVSE projects that receive Federal funding or require Federal approval.
The implementing regulations for NEPA established three levels of analysis (also called “classes of action”): categorical exclusions, environmental assessments, and environmental impact statements.
Three Levels of Analysis (or "Classes of Action")
Categorical Exclusions (CE)
Categorical exclusions (CE) are projects that the Federal agency has determined will not individually or cumulatively have significant impact on the environment. They are actions that:
- Do not induce significant impacts to planned growth or land use for the area;
- Do not require the relocation of significant numbers of people;
- Do not have a significant impact on any natural, cultural, recreational, historic or other resource;
- Do not involve significant air, noise, or water quality impacts;
- Do not have significant impacts on travel patterns; or
- Do not otherwise, either individually or cumulatively, have any significant environmental impacts.
Minimal documentation will be required by the agency to document that the environmental impacts of the project have been considered and that the agency agrees that a CE is appropriate. Please note that a project’s status as a CE does not mean that it is automatically excluded from compliance with other environmental regulations.
Environmental Assessment (EA)
An environmental assessment (EA) is a concise public document that must be prepared by the project sponsor in consultation with the Federal lead agency for each action that is not a CE and does not clearly require the preparation of an environmental impact statement (EIS), or where the agency concludes an EA would assist in determining the need for an EIS. The EA process is completed when the agency signs a Finding of No Significant Impact or determines that an EIS must be prepared.
Environmental Impact Statement (EIS)
An environmental impact statement (EIS) is a detailed environmental document that must be prepared when the Federal lead agency determines that the project is likely to have significant impact on the environment. An EIS includes the detailed research and analyses conducted to determine and disclose the nature of the environmental effects of the proposed action. EISs are often prepared by an environmental consultant that is hired by the project sponsor in consultation with the agency. The EIS process follows a specific set of steps with multiple public comment periods. It is concluded when the agency issues a Record of Decision.
More on NEPA
Each Federal agency establishes its own procedures that further establish the requirements of NEPA as it applies to their specific actions. For more information, see the Council on Environmental Quality’s Agency NEPA Implementing Procedures page.
NEPA is an umbrella law, which means that it is used to coordinate and demonstrate compliance with other environmental requirements. Under the NEPA umbrella, reviews under special resource laws are integrated into the NEPA process, to the maximum extent possible, and are incorporated into the resulting NEPA document.
When preparing to conduct an environmental review for an EVSE project, the scope and footprint of the project will need to be accurately determined. This includes identifying the ground that will be impacted by the charger and any supporting utilities, the properties that are in the view of the chargers, and any other projects that are connected to the project. Proposed actions are connected if they automatically trigger other actions that may require an EIS (the highest level of NEPA review); cannot or will not proceed unless other actions are taken previously or simultaneously, or if the actions are interdependent parts of a larger action and depend upon the larger action for their justification (40 CFR 1501.9(e)(1)).
Applicants for Federal funding and approval should seek to minimize the environmental impacts of their projects. In addition to having a smaller impact on the environment, this will maximize the project’s ability to fall within a CE, which is, in general, the fastest and least expensive level of NEPA review, and may also affect the applicant’s ability to receive approvals from environmental permitting agencies.
Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to consider the effects undertakings will have on National Register of Historic Places eligible or listed historic properties or districts (historic properties) and any properties of traditional religious and cultural importance to Tribes (54 U.S.C. §300101-307108, 36 CFR Part 800).
- An undertaking is a project, activity, or program funded, permitted, licensed, or approved by a Federal agency.
- Historic properties include prehistoric or historic districts, sites, buildings, structures, or objects that are eligible for or already listed in the National Register of Historic Places (National Register), and any artifacts, records, and remains (surface or subsurface) that are related to and located within historic properties and any properties of traditional religious and cultural importance to Tribes or Native Hawaiian Organizations.
. A Section 106 review is required when a Federal agency determines that their undertaking has the potential to impact a historic property.
An EVSE project receiving Federal funding or requiring Federal approval will be considered a Federal undertaking. The potential to affect historic properties will primarily depend the planned location of an EVSE project and their proximity to historic properties or cultural resources. EV projects placed in existing parking lots or structures that are outside of a historic property will have a low probability of impacting a historic property. Most electric powerlines will be buried within 18 to 24 inches below the ground in narrow trenches. In existing parking lots, where grading and placement of substrate occurred during the construction process, the ground impacted by the placement is likely to be previously disturbed and will therefore typically have a low probability of containing subsurface historic properties. Similarly, if the project is not within or immediately adjacent to a property or district, the project is unlikely to impact an above-ground historic property. However, the agency will individually evaluate each project.
For a project with a potential to affect a historic property or cultural resource, agencies are required to consult with State historic preservation offices, Tribal historic preservation offices, Indian Tribes (to include Alaska Natives), and Native Hawaiian organizations. This consultation will help to gather additional information on the presence of a historic property; determine and/or confirm the nature and severity of the potential impact; and, if necessary, determine mitigation measures that will avoid, minimize, or compensate for the impact. Should it become evident during consultation that the EVSE project will disturb ground that may contain archaeological resources, or should a previously unevaluated above-ground property that may be National Register-eligible be within or adjacent to the project site, project sponsors may have to hire a qualified environmental consultant to perform an archaeological or architectural survey to confirm. If an impact to a historic property will occur, public notification and notification of the Advisory Council on Historic Preservation (charged with ensuring Federal agencies properly carry out the applicable requirements of the NHPA) are also required. This is different than Tribal Consultation as directed by Executive Order 13175 & DOT’s Tribal Policy 5301.1A.
The Endangered Species Act (ESA) was signed into law in 1973 and protects threatened and endangered species of plants and animals (referred to as “listed species”) and their critical habitat (54 U.S.C. §§300101-307108, 36 CFR Part 800).
- Critical habitats are areas within the geographic areas occupied by a species when it was listed that contain physical and biological features essential for the conservation of a listed species and that may need special management or protection; this may include areas that were not occupied at the time of listing but are essential to a species’ conservation.
Section 7(a)(1) of the ESA specifically requires Federal agencies to use their authorities to conserve protected resources, and Section 7(a)(2) established a process by which the lead Federal agency consults with the U.S. Fish and Wildlife Service and/or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (collectively called “the Services”) to determine if its actions will impact a protected resource. While the ESA applies to private actions as well, Section 7 has established a consultation process for Federal agencies to work with the Services to determine if their actions have the potential to negatively impact listed species or their critical habitat.
If a project has no potential to impact a listed species or critical habitat, or if none are present in the project area, according to a species list obtained by the agency or by contacting a Service’s field office, no consultation with the Services is required. If a protected resource may be present, the agency will conduct a consultation process. There are two types of consultation under Section 7 of the ESA: informal and formal.
If a proposed action may affect a listed species or critical habitat, the agency and a Service will likely conduct informal consultation. If the agency determines that the proposed project will have no effect on the listed species or critical habitat, the consultation process is complete. If the agency determines the project may affect, but is not likely to adversely affect a listed species or critical habitat, and the Service agrees, the Service will provide written concurrence and no further action is necessary.
If the agency determines, through an evaluation called a biological assessment or through other type of review, that the proposed project is likely to adversely affect a listed species or critical habitat, then formal consultation is required. This consultation is a longer and more complex process that requires close coordination with the Service and may require additional surveys or studies to further evaluate the nature of the adverse effect. Following consultation, the Service will respond to the agency with a biological opinion, which provides its conclusion that a project is or is not likely to jeopardize the continued existence of a listed species or critical habitat.
In 1977, President Jimmy Carter issued EO 11988, which regulates activities within Federal Emergency Management Agency (FEMA)-designated floodplains (3 CFR Part 1977, 42 FR 26951). Examples of floodplain-impacting activities include adding fill to a floodplain, changing the grades of slopes, or restricting the movement of water across a floodplain. If a floodplain may be adversely impacted, Federal agencies are required to consider alternatives that may have smaller or no impacts in order to prevent potential loss of property or life. Adverse impacts to floodplains may require a public notice and comment period and may also be regulated and/or prohibited by State or local governments.
Because of their low profiles, Federal agencies usually can fund or approve the placement of parking lots in floodplains because they will not impact the flow of floodwater. For entities looking to place an EVSE project in a new or existing parking lot, applicants will need to determine if the property is located with a floodplain that has been identified by FEMA.
Several concerns exist with locating EVSE in a floodplain:
If a project sponsor seeks to place EVSE in a floodplain, they will need to confirm with the manufacturer that it can be safely inundated with floodwater up to the height of the base flood elevation, or the project sponsor will need to elevate the charger or elevation of the relevant parking lot. (The base flood elevation is the elevation of surface water resulting from a flood that has a 1 percent change of being equaled or exceeded in any given year.)
Project sponsors will need to evaluate decreased or fully blocked access if the EVSE location itself or roads leading to the site are within a floodplain and become inundated.
The Clean Water Act (CWA), signed into law in 1972, aims to protect “waters of the United States” (WOTUS), which includes jurisdictional wetlands and navigable waters that fall within the jurisdiction of U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) (33 U.S.C. 1344, 33 CFR Part 323). WOTUS include territorial seas and traditional navigable waters (e.g., the Mississippi River, the Great Lakes, and the Erie Canal); tributaries, lakes, ponds, and impoundments of jurisdictional waters that contribute surface water flow to the previous category; and adjacent wetlands that physically touch other jurisdictional waters.
Section 404, jointly overseen by the EPA and USACE, regulates “discharges of dredge and fill material” into jurisdictional waters. A Section 404 permit will be needed for an EVSE that would require the placement fill material in a stream, river, or wetland. The project sponsor will need to contact the USACE to determine if jurisdictional waters may be impacted by an EVSE project.
Unlike streams and rivers, wetlands can be hard to identify. If site photos and available online maps indicate that a wetland may be present on or near the project site, the project sponsor may need to hire an environmental consultant to perform a wetland delineation (a study of a site’s soil, plant species, and presence of water to determine if a wetland is present, and, if so, the location of its boundaries). USACE will use this information to determine if a Section 404 permit is required.
Section 4(f) of the USDOT Act of 1966 provides for the consideration of Section 4(f) properties (publicly owned parks and recreation lands, wildlife and waterfowl refuges, and public and private historic sites) during USDOT transportation project development (23 U.S.C. §138, 23 CFR Part 774). 23 CFR 774.3 prohibits the approval of a project if there is a “use” of a 4(f) property unless there is either no feasible and prudent avoidance alternative to the use of the land, and the action includes all possible planning to minimize harm to the property resulting from the use, or the use of the property, including any measure(s) to minimize harm (such as any avoidance, minimization, mitigation, or enhancement measures) committed to by the project, will have a de minimis impact.
When considering if the project will result in a use of a Section 4(f) property, project sponsors should consider permanent impacts such as land acquisition that incorporates land into a project, and temporary impacts like short-term easements or construction activities that may cross or limit access to a Section 4(f) property. If a project may impact or is adjacent to a Section 4(f) property, project sponsors are encouraged to consult the agency for further guidance.
EO 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations”
EO 12898, signed by President Bill Clinton in 1994, directs Federal agencies to ensure that their actions do not have a disproportionally high and adverse effect on the environmental or human health of populations of color or low-income populations, referred to as “EJ populations.” Federal agencies must also ensure full and fair participation by EJ populations in the transportation decision-making process and that agency actions allow for an equitable distribution of benefits and burdens. USDOT Order 5610.2C sets the overall EJ policy for USDOT, and FHWA has additional EJ guidance.
EVSE projects play a critical role in reducing the disproportionate exposure of harmful GHG emissions on EJ communities due to their ability to reduce vehicle-caused emissions. Agencies must ensure that the benefits of EVSE projects are equitably provided to EJ communities. An example of a benefit-related EJ violation for an EVSE project would be the selection of a location alternative that is not also accessible to EJ communities in the project’s general area. Additionally, agencies cannot allow disproportionate harm to EJ communities caused by an EVSE projects’ construction or operation; negative impacts must be avoided or mitigated if at all possible, and any alternative project design must be pursued if negative impacts are unavoidable and unable to be mitigated. The agency can help project sponsors work through the EJ analysis process (which may require consultation with potentially impacted EJ communities) and, if necessary, the development of mitigation measures.