The National Environmental Policy Act at Twenty: A Preface
37 Pages Posted: 29 Mar 2006
This article, written on NEPA's 20th anniversay, maintains that the statute's constitution-like language conveyed the hope of a nation that the federal government could be transformed from an environmental degrader to an environmental preserver and restorer. In retrospect, its optimism seems quite unrealistic. Nevertheless, its call for productive harmony between man and nature, elimination of damage to the biosphere, and non-degradation of environmental quality sounds themes that remain relevant.
By its 20th birthday, the Supreme Court had made clear that NEPA was essentially procedural, reducing it to a public disclosure statute without substantative content. This produced fewer NEPA injunctions against agency action, fewer court suits, and more agency authority to pursue environmentally objectional projects. NEPA in effect had become one part information disclosure, one part public participation, and eight parts administrative discretion.
This paper overviewed a symposium on NEPA, discussing the results of some fourteen articles on NEPA, including the statute's judicial history, a call for substantive review, a defense of judicial deference, the task of enforcing agency promises, the myth of mitigation, and war stories from public land mining, the national forests, the Corps of Engineers, the Department of Energy, the state of Washington, and Canada. The paper also suggested a number of NEPA possible reforms within federal agencies, through changes to the Council on Environmental Quality's regulations, and statutory amendments.
Lead agency reforms included producing improved biological science in environmental impact statements (EISs), monitoring agency predictions, and greater decision-making authority for those writing NEPA documents. Proposed revisons to the CEQ regulations included use of briefing-style EISs, post-decisional monitoring in the form of compliace reports, a revised definition of mitigation, more detail on Environmental Assessments, and greater CEQ oversight of agency NEPA compliance. Finally, suggested statutory changes included a 1989 amendment that passed the House of Representative which would have required agencies to consider the effects of their actions on areas outside the U.S. (particularly in terms of global climate change), require mitigation measures in EISs, and direct CEQ to evaluate the accuracy of agency predictions in EISs.
Keywords: environmental law, administrative law,
JEL Classification: K23, K32
Suggested Citation: Suggested Citation