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NEPA, the National Environmental Policy Act
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The National Environmental Policy Act of 1969 (NEPA) is a sweeping federal law often called the Magna Carta of the nation's environmental laws. The act was the brainchild of Senator Henry M. "Scoop" Jackson (1912-1983), who conceived of the bill in 1968 and shepherded it through his Senate Interior and Insular Affairs Committee and then through the full Senate in 1969. It was passed without significant opposition in the Senate on December 20, 1969, and the House on December 22, 1969, and was signed into law by President Richard M. Nixon (1913-1994) on January 1, 1970, The act declared that it would be the country's national policy to "encourage productive and enjoyable harmony between man and his environment," established a new Council on Environmental Quality and, more practically, required an Environmental Impact Statement for major federal projects (NEPA statute). The Environmental Impact Statement provision became an important tool for environmentalists, and became the basis for hundreds of lawsuits aimed at stopping or delaying projects. For those reasons, the act remains controversial, yet it is widely credited for bringing environmental protection to the forefront of American policy.
From Conservation to Environmentalism
The seeds of the National Environmental Policy Act were planted even before the word "environment" took on its present meaning in America during the 1960s. In 1959, the U.S. Senate considered a bill called the Resources and Conservation Act, which included some elements that would be revived a decade later for NEPA. The bill didn't pass. Over the next few years, concern over the environment -- an issue formerly called "conservation" or "preservation" -- became a growing political issue in the United States. By 1967, dozens of bills relating to environmental protection had been introduced, but none set forth a comprehensive policy.
Jackson, as chairman of the Senate Interior and Insular Affairs Committee, long considered a comprehensive environmental act to be one of his top legislative priorities. He was already known for his support for conservation and wilderness. By 1968, he had pushed through deals that resulted in the formation of two new national parks, Redwood National Park in California and North Cascades National Park in his own backyard.
He also "bulled through legislation that tapped federal reserves from offshore oil and added the money -- $200 million a year -- to the Land and Water Conservation Fund for purchase of park and recreation lands" (Prochnau and Larsen, p. 68-69). He helped push through his committee the Wilderness Act of 1964 and the Wild and Scenic Rivers Act of 1968.
Jackson had become convinced, after seeing previous fights over huge federal public works projects in Arizona and the Colorado River Basin, that the nation needed some way to guarantee that when the federal government went to work with bulldozers, it wouldn't end up doing as much harm as good, He believed the law had to ensure that agencies would think through the possible "environmental impact" -- a phrase the bill would later make famous -- of federal projects.
Development vs. Conservation
Jackson had also grown increasingly frustrated at seeing one part of the federal government working at cross-purposes to another. His own Interior Committee had witnessed a perfect example of that in 1967 and 1968 in Florida's Everglades. On one hand, the Interior Department and the National Park Service were seeking to acquire more land and protection for Everglades National Park.
On the other hand, the Army Corps of Engineers and other federal agencies were busy with plans for dams and canals that might dry up the Everglades. Meanwhile, the Department of Transportation proposed building a "super jet airport" next to the Everglades, which would cut off even more water and fill the future park's airspace with noise (Kaufman, p. 202-203),
So Jackson gathered the heads of the Army Corps of Engineers, the Interior and Transportation departments, together to explain what they were doing. "It was obvious that they had little or no recognition that their programs were in conflict with each other," said Bill Van Ness (b. 1938), a special counsel to Jackson's Committee on Interior and Insular Affairs, who went on to become one of NEPA's architects (Kaufman, p. 203).
Jackson realized that there was nothing in either the budgeting or planning processes "that forced these federal agencies ... to face the conflicts their programs created," especially the environmental conflicts (Kaufman, p. 203).
"This was the root of the problem that Jackson was trying to address: He wanted a mechanism to force federal decision makers at the lowest possible levels to identify objectives and conflicts before they committed funds and undertook irreversible actions," wrote Robert G. Kaufman in a 2000 Jackson biography (Kaufman, p. 203).
Making the Case for a National Policy
Jackson and his staff went to work on solving this problem. In 1967, Van Ness wrote a memo outlining the need for a true, comprehensive national environmental policy. In 1968, Van Ness and an Interior Committee consultant, Lynton Keith Caldwell, drafted a report that "made the case for a national policy" (Caldwell, p. 29). The Interior Committee made that report public on July 11, 1968.
In introducing the report, Jackson said, "In the last few years, it has become increasingly clear that soon some president and some Congress must face the inevitable task of deciding whether or not the objective of a quality environment for all Americans is a top-priority national goal which takes precedence over a number of other, often competing, objectives in natural resource management and the use of the environment. In my opinion, that inevitable time of decision is close upon us" (Caldwell. P. 23).
Then on July 17, 1968, Jackson organized a Joint House-Senate colloquium in order to hash out the environmental challenges facing the country. Although it was ignored completely by the press, it was an influential event on Capitol Hill. Half of President Lyndon B. Johnson's cabinet members attended.
"Out of that colloquium grew Jackson's idea for a National Environmental Policy Act -- a sweeping idea that, when it was enacted into law 18 months later, forced the federal government to examine the environmental consequences of almost every one of its actions, whether it was to build a supersonic transport or to carve a barge canal," said William W. Prochnau and Richard W. Larsen in a biography of Jackson published four years later (Prochnau and Larsen, p. 68-69).
Crafting the Bill
Jackson put Van Ness and Daniel Dreyfus, another staffer on Jackson's Interior Committee, to work on the draft of a bill incorporating his ideas. "He (Dreyfus) had experience that I didn't have, and kept me grounded in reality," said Van Ness many years later. "And he was a great critic" (HistoryLink, Dougherty).
They worked on the bill without much interference from either environmental lobbies or developers – and little resistance, or even input, from the Nixon Administration. The bill generated only sporadic attention from the press and was mentioned with neither jubilation nor alarm by such disparate publications as the Sierra Club newsletter and the Mining Congress Journal.
"Because it was so sweeping, with so much impact on all agencies of the federal government, nobody took it too seriously," said Prochnau and Larsen (Prochnau and Larson, p. 273). There might have been another reason that the Nixon Administration didn't interfere. It needed Jackson's support on upcoming defense and national security votes and didn't want to raise Jackson's hackles.
The bill's original version was considerably different from the final version. It did not contain a formal declaration of national policy nor did it include any "action-forcing" provisions (Swartz). Jackson himself explained the "threefold purpose" of the bill in a statement before his Interior Committee on April 16, 1969: "First, to establish a national policy on the environment; Second, to authorize expanded research and understanding of our national resources, the environment, and human ecology; and Third, to establish in the Office of the President a properly staffed Council of Environmental Quality Advisors" (Caldwell, p. 2). It did not, at this point, require the drafting of an impact statement.
Introducing the Bill
Jackson had some difficulty finding a committee of the House of Representatives to report the bill to the House, which was also necessary if the bill was to proceed. He tried to talk the House's Interior Committee into taking the bill, but the chairman declined. Jackson finally convinced Representative John Dingell (b. 1926) into introducing it as a fish and wildlife bill in his House Merchant Marine and Fisheries Committee. Jackson introduced the bill on February 18, 1969, as Senate Bill No. 1075. Dingell had introduced a similar bill in the House on February 17, 1969.
The only Senate hearing on the bill took place before Jackson's committee on April 16, 1969. Jackson said he was sponsoring the bill because "our existing institutions are not adequate to deal with the growing environmental problems and crises the nation faces" (Caldwell, p. 1). It was while testifying at this hearing that Caldwell first introduced the idea of requiring agencies to submit an evaluation of the impact on the environment. It was the seed of what would become the Environmental Impact Statement -- but it still was not in the bill (Caldwell, p. 29).
Then, a series of House hearings were held throughout May and June. According to the House committee report, "in the main, all witnesses were in favor of the legislation" (U.S. Code, p. 2752). In fact, the House committee reported that the hearings "developed no substantive opposition on the part of the public" and only "slight resistance" on the part of witnesses who appeared at the hearings. This latter comment was apparently referring to Dr. Lee DuBridge (1901-1994), Nixon's chief science advisor, who testified on June 13 at hearings in Ann Arbor, Michigan, in Dingell's district.
DuBridge was unpersuaded that the bill's proposed Council on Environmental Quality was necessary, because Nixon had just issued an executive order establishing a Cabinet-level committee called the Environmental Quality Council, chaired by the president himself. DuBridge was to be the committee's executive secretary. "He ended his brief testimony with an air of quiet dismissal," said Prochnau and Larsen (Prochnau and Larsen, p. 274).
Yet the House committee report put a different interpretation on DuBridge's testimony. It said the difference of opinion between DuBridge and just about everyone else who testified was over "whether or not the science advisor, already burdened by the many duties and offices assigned to him, and unable at best to spend more than 25 percent of the time on environmental areas, would be physically able to devote adequate time and resources to the challenging problems that would inevitably arise" (US Code, p. 2755).
Yet DuBridge's objections were unconvincing, and were skillfully defanged by Jackson. According to Prochnau and Larsen, "the Nixon Administration slowly turned around into a position of support for the measure" (Prochnau and Larsen, p. 274).
A number of amendments, both on the Senate side and House side, were spawned by these hearings. Undoubtedly the most significant was a Jackson amendment to the Senate bill which included three key elements: A sweeping declaration of national environmental policy, a statement asserting that "each person has a fundamental and inalienable right to a healthful environment," and some action-forcing mechanisms requiring federal officials to report their "findings" of probable environmental impacts of their proposed projects (Swartz). Yet it still did not require an actual environmental impact statement.
Jackson's bill was reported, unanimously and favorably, to the full Senate by the Interior Committee on July 9, 1969. With surprising speed, Jackson had it called up on the consent calendar the next morning, July 10, during the "morning hour," reserved for mostly routine matters. The bill passed unanimously, with no debate and with no amendments, and was sent over to the House of Representatives. The next day, Dingell's committee reported the similar House version of the bill favorably to the full House, where it was further debated, amended and passed by a vote of 372-15. The bill was sent back to the Senate with a request for a conference to reconcile the differences between the two bills.
Yet Jackson soon discovered that his bill had angered Senator Edmund Muskie (1914-1996), the powerful chairman of the Senate's Public Works Committee. Muskie had two essential problems with it. First, he believed NEPA conflicted with a sweeping water pollution control bill that his committee was working on. In the words of Prochnau and Larsen, Muskie considered it a "hostile overlapping of his bill" (Prochnau and Larsen, p. 276). Second, Muskie thought Jackson was attempting a power grab to take jurisdictional control of future environmental bills away from Muskie's committee. Jackson and Muskie were considered "two of the Senate's strongest advocates of environmental protection" and Muskie was disinclined to cede the issue to Jackson (Liroff, p. 18).
According to Jackson staffers, Jackson tried to make peace but Muskie was "petty and pouty" (Prochnau and Larsen, p. 276). At one point, staffers said that Jackson called Muskie but was shouted down, causing Jackson to hang up and mutter, "That guy is just utterly hopeless" (Prochnau and Larsen, p. 277).
Yet their disagreement was not just personal. It reflected a "fundamental difference over the conduct of environmental policy" (Liroff, p. 18). Jackson believed that federal agencies should address environmental issues internally, to avoid more Everglades-style contradictions. Muskie didn't trust federal agencies to enforce compliance on themselves. He believed some kind of external policing mechanism was necessary. He did not think the bill's requirement for a "finding" was sufficient.
After a long and sometimes contentious series of talks between Jackson and Muskie, the two powerful senators reached a compromise. The "findings" provision was strengthened and Van Ness and Dreyfus went to work drafting the language, now famous, requiring that federal officials produce a "detailed statement" on the environmental impact of a project, including alternatives to the proposed action. The environmental impact statement was now in the compromise bill.
To the Conference Committee
Jackson sent this compromise bill to the conference committee, whose job was to reconcile the Senate and House bills. Jackson controlled the Senate portion of the committee, which consisted entirely of members of his own committee. The House portion included Dingell and Representative Wayne Aspinall (1896-1983), chairman of the House Interior Committee, who was "noted for his support of exploitation of the natural resources found on public lands" (Liroff, p. 11). Aspinall feared, according to a staff aide, that it would provide a "new handle for environmentalists" (Liroff, p. 27).
Aspinall had already succeeded in adding a provision in the House version specifying that NEPA would not "increase, decrease or change" any federal responsibility or authority, a provision "that would have gutted" the bill (Liroff, p. 11). Yet in conference, Jackson outmaneuvered Aspinall and persuaded him to drop that provision in exchange for a minor change of wording in another passage. Jackson also had to drop his passage about each person having "a fundamental and inalienable right to a healthful environment." Instead, new language was drafted that read: "The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment" (NEPA statute).
The conference committee report said this compromise was adopted "because of doubt on the part of the House conferees with respect to the legal scope" of the original language (United States Code). Jackson was not happy about this compromise, as he said in a December 20, 1969, speech on the Senate floor: "I opposed this change ... . Every person does have a fundamental and inalienable right to a healthful environment. If this is not the law of the land ... then it is my view that some fundamental changes are in order" (HistoryLink, Caldbick).
Final Debate and Vote
After three conference report meetings, the conferees submitted their report on December 17, 1969, to both the Senate and the House. Debate was brief, if not cursory. The only significant voice of dissent came from Representative William Harsha (19211-2010), who, delivered this prophetic warning: "The impact of S. 1075, if it becomes law, I am convinced, would be so wide sweeping as to involve every branch of the Government, every committee of the Congress, every agency, and every program of the Nation" (Liroff, p. 30).
In the Senate, Jackson lamented the loss of his "inalienable right" language, but otherwise paid tribute to the bill. "The basic principle of this policy is that we must strive in all that we do to achieve a standard of excellence in man’s relationships to his physical surroundings," said Jackson in a floor speech on December 20, 1969. "If there are to be departures from this standard of excellence they should be exceptions to the rule and the policy. And as exceptions they will have to be justified in light of the public scrutiny as required by Section 102” (NEPA Success Stories, p. 5).
NEPA easily passed the Senate without a roll call vote on December 20, 1969, and passed in the House just as easily on December 22, 1969. Congress members were anxious to get home for Christmas. Caldwell said it was "probable" that many Congress members voted for it on the mistaken assumption "that the Act was essentially an antipollution statute" (Caldwell. p. 27).
Broad Yet Opaque
The press thought the same thing. When Nixon signed the bill into law a week later, The New York Times headline read, "Nixon Promises an Urgent Fight to End Pollution" (The New York Times). Whether Nixon grasped the true implications of NEPA are unclear, but it was obvious that he used the bill to advertise his own concern for the environment. When he signed the bill at San Clemente, California on January 1, 1970, he said it was "particularly fitting that my first official act in this new decade is to approve the National Environmental Policy Act" (Prochnau and Larsen, p. 277-278).
"The 1970s must absolutely be the years when America pays its debt to the past by reclaiming the purity of its air, its waters and our living environment," said Nixon at the signing. "It is literally now or never" ("Nixon," The New York Times).
Both Nixon and the news coverage concentrated almost entirely on the provision in Title II of the act that created a three-person Council on Environmental Quality. A month later, Nixon would appoint Russell Train (b. 1920), Robert Cahn, and Gordon J. F. MacDonald as the first members. Although the Council was undoubtedly a significant part of NEPA, nobody yet seemed to grasp the significance of the passage in Title I calling for a "detailed statement" on a project's environmental impact.
Environmental scholar Richard A. Liroff quoted a Congressional staffer as later saying that "if Congress had appreciated what the law would do, it would not have passed" (Liroff, p. 35). People were slow to realize the act's import partly because much of its language was purposely general. It was, as Jackson intended, a statement of broad policy, with passages more poetic than legalistic, such as "enjoyable harmony between man and his environment," and "a wide sharing of life's amenities" (NEPA statute). One federal judge later called it "almost constitutional" in its breadth and lack of specificity and another called it "so broad, yet opaque" (Liroff, p. 5).
Impact of the Environmental Impact Statement
Yet environmental activists didn't take long to notice that the Environmental Impact Statement provision could be NEPA's most potent tool. The act said such a statement must be prepared before undertaking "major federal actions significantly affecting the quality of the human environment" (NEPA). Within a few years, environmentalists had filed an avalanche of lawsuits which delayed or halted federal projects ranging from canals to oil pipelines to atomic power projects, on the basis that the required Environmental Impact Statement was either flawed or nonexistent. By 1975, the Army Corps of Engineers had claimed that "NEPA had been responsible for modifications, delays or halts in 350 of its projects" (Liroff, p. 211).
The courts have repeatedly been asked to rule on two of the act's key, if general, phrases: What constitutes a "major federal action" and what, exactly is the meaning of "significantly affecting the quality of the human environment"? (Rychlak and Case, p. 114-115). The courts tended to interpret the law broadly and were reluctant to allow federal agencies to evade their obligation to provide a "detailed statement."
NEPA also "paved the way for more than a dozen major federal environmental regulatory programs enacted by Congress over the next ten years," including the Clean Water Act of 1972, the Endangered Species Act of 1973, and the Superfund act of 1980 (Rychlak and Case, p. 111-112). It also was "emulated in various degrees by almost half the states," which passed similar state laws called SEPAs, including Washington in May 1971. It was also emulated internationally by "an estimated 80 or more countries abroad," according to Caldwell (Clark and Canter, p. 337).
The act spawned a backlash among some lawmakers, who sought unsuccessfully to amend or repeal it, but it also earned a stature as an uncommonly effective -- and inexpensive -- tool for small groups of citizens to take on the massive federal bureaucracy. Federal agencies learned that their Environmental Impact Statements couldn't be cursory and superficial -- they had to be sizable, expensively researched tomes.
The Environmental Impact statement became a part of American culture, and even became a punch line in a 1975 Playboy magazine joke. It depicted the Lord telling Moses that he had some good news and some bad news. The good news? Plagues of locusts would smite the Egyptian oppressors and the Nile would turn to blood. The bad news? "It will be up to you, Moses, to write the Environmental Impact Statement" (Liroff, p. 3).
Jackson had his own trials with his own act. Just a month after NEPA was passed, Russell Train, chairman of the act's new Council on Environmental Quality, declared Boeing's SST (supersonic transport) proposal to have "environmental problems" that are "exceedingly serious" (Congress and the Nation, p. 160). The project -- long championed by Jackson -- was later scuttled.
Jackson was also a strong supporter of the Trans-Alaska Oil Pipeline project in the early 1970s, which was tangled in litigation partly involving NEPA's Environmental Impact Statement requirement. Meanwhile, NEPA-related lawsuits delayed the construction of another project important to Jackson, the Trident Submarine Base at Bangor.
Jackson became increasingly frustrated with the courts and regulatory agencies for "vastly inflating the requirements of the Environmental Impact Statement" (Kaufman, p. 208). But he never lost faith in the Act itself. Kaufman wrote that Jackson came to believe that "the benefits of NEPA ... outweighed this unintended defect," even though it "impeded some legitimate as well as illegitimate development" (Kaufman, p. 208).
The Magna Carta of the Environment
In any case, the practical application of NEPA has evolved over the decades. The Council on Environmental Quality reported that litigation connected with NEPA “dropped significantly, from a high of 189 cases in 1974 to 81 in 1992” (Clark and Canter, p. 199). In addition, the number of “Environmental Assessments” filed every year has vastly overtaken the number of more rigorous Environmental Impact Statements (EIS) (Canter and Clark, p. 199). An Environmental Assessment is a “mini-EIS designed to provide sufficient information to allow the agency to decide whether the preparation of a full-blown EIS is necessary” (Rychlak and Case, p. 117). A 2009 report showed 6,300 Environmental Assessments completed that year, compared to 715 Environmental Impact Statements (NEPA Success Stories, p. 7).
Meanwhile, the role and effectiveness of the Act’s other key legacy, the Council on Environmental Quality, has varied from administration to administration. In 2005, the council was touched by controversy when Phillip A. Cooney, President George W. Bush’s chief of staff for the council, resigned after revelations that he had “repeatedly edited government climate reports” to cast doubt on global warming (Revkin). The current council, as of 2011, has become a key element of President Barack Obama’s green initiatives, under chair Nancy Sutley.
Russell Train, the council’s original chairman, looked back on NEPA’s legacy 40 years after its signing by writing, “It is fair to say that NEPA brought environment front and center to federal agencies, and this can be deemed a success brought about, in no small part, by the many federal employees and citizens who have applied the law over these decades. ... No longer could federal agencies say ‘we know best’ ... . NEPA democratized decision-making” (NEPA Success Stories, p. 3).
NEPA accomplished all three of the goals that Jackson articulated when he first introduced the bill: It established a lasting national policy, it spawned vast amounts of environmental research, and it permanently established an environmental presence in the executive branch. Train called it a “revolutionary change” (NEPA Success Stories, p. 3). Others have gone even further.
It "is often referred to as the Magna Carta of the country’s national environmental laws” (Rychlak and Case, p. 111).
William W. Prochnau and Richard W. Larsen, A Certain Democrat: Senator Henry M. Jackson (Englewood Cliffs, N.J.: Prentice-Hall, 1972); Lynton Keith Caldwell, The National Environmental Policy Act: An Agenda for the Future (Bloomington and Indianapolis: Indiana University Press, 1998); Robert G. Kaufman, Henry M. Jackson: A Life in Politics (Seattle: University of Washington Press. 2000); Lucinda Low Swartz, Esq., "NEPA Legislative History," Linda Low Swartz website accessed March 14, 2011 (http://www.lucindalowswartz.com/); HistoryLink.org Online Encyclopedia of Washington State History, "Van Ness, William J." (by Phil Dougherty) http://www.historylink.org/ (accessed Aug. 6, 2011); Comments of Senator Henry M. Jackson during debate on NEPA (December 20, 1969), 115 Congressional Record 40416; United States Code: Congressional and Administrative News, 91st Congress, First Session, 1969 (St. Paul: West Publishing Co. 1970); Richard A. Liroff, A National Policy for the Environment: NEPA and Its Aftermath (Bloomington: Indiana University Press, 1976); National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. 4321 et seq. (Public Law 91-190, 91st Congress, S. 1075), available at the official NEPA website (http://ceq.hss.doe.gov/); "Nixon Promises an Urgent Fight to End Pollution," The New York Times, January 2, 1970, p. 1; HistoryLink.org Online Encyclopedia of Washington State History, "Washington's State Environmental Policy Act (SEPA) is approved on May 10,1971 (by Peter Blecha) http://www.historylink.org/ (accessed Aug. 6, 2011); Congress and the Nation, Vol. III, 1969-1972 (Washington: Congressional Quarterly, Inc. 1973); HistoryLink.org Online Encyclopedia of Washington State History, "D.C. Court of Appeals rules National Environmental Policy Act (NEPA) applicable to proposed Trident Submarine Base at Bangor on October 13, 1976 (by John Caldbick) (http://www.historylink.org/) (accessed August 10, 2011); Ronald J. Rychlak and David W. Case, Environmental Law: Oceana's Legal Almanac Series (New York: Oxford University Press, 2010), p. 111-120; Environmental Policy and NEPA: Past, Present and Future ed. by Ray Clark and Larry Canter (Boca Raton, Florida: St. Lucie Press, 1997); NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government, Environmental Law Institute, August 2010, available at (http://ceq.hss.doe.gov/nepa_information/NEPA_Success_Stories.pdf), accessed Aug. 13, 2011; Andrew C. Revkin, “Editor of Climate Report Resigns,” The New York Times, June 10, 2005.
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