Excerpt from the National Environmental Policy Act
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.
After 150 years of rapid industrialization and urban expansion, along with two world wars, all of which required significant natural resource extraction, the environment of the United States by the end of the 1960s was under considerable stress. Many forested public and private lands had been or were being cleared of trees; industrial water pollution and acid mine drainage made rivers and streams unusable for various purposes, including recreation; many wild and scenic rivers were no longer free-flowing but dammed and silent; smog and other types of air pollution blanketed urban areas; and concrete highways and the developments they encouraged were consuming large areas of rural America, to name just a few of the more obvious sources of concern. At the same time, the increasingly affluent American family that traveled extensively across the continent and was witness to these changes began to put more value on the elimination of these threats to public health and of the destruction and despoliation of the places, vistas, and natural landmarks that had come to symbolize the American wilderness as it presented itself to the explorers, early settlers, and pioneers.
In this context, it was clear to many concerned and knowledgeable observers that agencies of the federal government were themselves significantly responsible for the deteriorating state of the environment within the United States. Federal agencies undertook massive projects themselves (e.g., building dams) or approved work undertaken by state governments or private companies (e.g., interstate highway construction) that involved environmentally destructive consequences. However, confronted with claims that they should consider the potential environmental effects in deciding what actions to take or avoid, federal officials responded by arguing that they had not been authorized by Congress to protect the environment; rather, their respective responsibilities were to build dams, highways or airports, to insure that timber production could meet the demand for new housing construction, and to otherwise carry out the nonenvironmental goals of the legislature.
Provisions of the National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) (P.L. 91-190, 83 Stat. 852), signed by President Richard Nixon and effective on January 1, 1970, was Congress's attempt to eliminate these pleas of helplessness offered up by the federal bureaucracy. It is a statute that, for its authority, relies on Congress's well-nigh plenary power, or complete authority, to organize the way in which federal agencies go about their work.
The National Environmental Policy Act was the first of the modern federal environmental statutes, shortly followed in the early 1970s by the enactment of those federal laws that now form the bedrock of environmental legislation in the United States. Like those other laws, NEPA responded to the increasing public outcry, symbolized by the first Earth Day in 1970, for protection of the national and global environments. Unlike those other laws, however, NEPA is short and lacks significant detail. Rather, to a great extent, it is composed of ambitious pronouncements of purpose and policy phrased in broad generalities. For example, Section 101 makes it the "continuing responsibility of the Federal Government ... to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may ... fulfill the responsibilities of each generation as trustee of the environment for succeeding generations ... [and] assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.... "
The most important specific legislative accomplishments of NEPA are three: (1) the expansion of the legal authority of federal agencies to require them, as part of their decision-making processes, to consider the environmental consequences of each action they take; (2) the imposition of a requirement that, prior to making any final decision on a major program, plan, or project, each federal agency prepare and consider a "statement" examining the environmental costs and benefits of action and alternatives to avoid environmental harm (the so-called Environmental Impact Statement [EIS] requirement); and (3) the creation of the President's Council on Environmental Quality (CEQ).
The Legislative History of Nepa
The legislative history of NEPA is as remarkable for what it leaves unstated (and perhaps unconsidered) as for what it expressly says. As early as 1959, Congress had considered legislation purporting to offer a national policy on conservation and use of natural resources as well as to establish a presidential advisory counsel on the environment. Nothing came of that legislative effort. However, in 1969 Senator Henry Jackson of Washington and Representative John Dingell of Michigan introduced similar bills in the Senate and the House of Representatives. As originally conceived, there was no "operational" aspect to the proposed bills, that is to say, no specific mechanism to try to insure that environmental protection would be forthcoming. But at a hearing in the Senate, Professor Lynton Caldwell of Indiana University noted the need for "an actionforcing, operational aspect" to the bill being considered. Senator Jackson and his staff then worked with Professor Caldwell to draft what later became Section 102(2)(C) of NEPA, the requirement that, at the time of proposing legislation or a major federal action that might significantly effect the environment, the agency responsible for the action prepare an EIS. With modest changes and little debate or other legislative history to suggest how Congress intended this provision to be implemented, it became law and a keystone of environmental policy as implemented by the federal bureaucracy. Of all the provisions of NEPA, the impact statement requirement has provoked by far the largest amount of attention within and outside the government.
Other amendments were attached to the bill enacted as NEPA as it made its way through the legislative process. Two of the most important reflected to some degree a "turf" fight within the Senate over the control of federal environmental policy. Senator Edmund Muskie of Maine chaired the subcommittee that was to produce the Clean Air and Clean Water Acts. He did not want the environmental standards created by or under that or other environmental legislation disregarded or otherwise undercut by NEPA. Nor did he want the views of the federal agencies subject to the oversight of his subcommittee ignored in the decision-making processes required by NEPA. Accordingly, the bill was amended to clarify that NEPA did not trump the environmental obligations imposed by other federal law and that federal agencies preparing Environmental Impact Statements had to solicit comments on draft Environmental Impact Statements from the U.S. Environmental Protection Agency and other federal agencies that possessed the primary responsibility for environmental protection.
The Role of the Council on Environmental Quality
Both the original bills and the one finally enacted and signed by President Nixon established a Council on Environmental Quality within the Executive Office of the President. In essence the role of the CEQ, a three-member body, is to gather authoritative information on the state of the environment and assist in the dissemination of that information through preparation of an annual report as well as conduct studies relating to ecological systems and environmental quality, oversee federal agency compliance with the policy and other obligations imposed by NEPA, and recommend to the president national policies for improvement of environmental quality.
In connection with these functions the CEQ has adopted a set of elaborate regulations that restate, clarify, and elaborate on the obligations that NEPA imposes on federal agencies. As a practical matter, the most important components of those regulations are the provisions dealing with the need to prepare an EIS, the timing for such preparation, and the contents of an acceptable EIS. These regulations divide agency actions into three categories: actions that generally do not amount to major actions requiring in-depth environmental analysis; actions that are, without question, major ones likely to have significant environmental effects and, therefore, subject to the EIS requirement; and, finally, those for which it is not clear whether an EIS is necessary, so the agency must first prepare an Environmental Assessment (EA) in order to determine the scope and nature of the potential effects and whether they amount to the "significant" effects that trigger full-blown EIS analysis.
Challenges to the Act
In the early years following the enactment of NEPA, there was widespread federal agency resistance to its mandates, not surprisingly since compliance could delay program and project implementation and add significantly to costs. Hundreds of lawsuits were brought against agencies on the grounds that no EIS had been prepared when it should have been or, even if prepared, the EIS was fatally incomplete or otherwise inadequate in addressing relevant environmental impacts and alternatives to avoid those impacts. Many federal actions were stopped in their tracks by courts issuing orders to agencies to comply with NEPA. However, because of the costs of noncompliance with NEPA, increasingly agencies have more seriously considered their NEPA obligations: hundreds of EAs and EISs are prepared every year, and many of those comprise volumes of data and analysis.
While lawsuits continue to be brought on the basis of violations of NEPA, it is increasingly difficult to win them. In part, this is because of a series of Supreme Court cases, including, for example, Vermont Yankee Nuclear Power Corp. v. NRDC (1978), that have consistently found that NEPA merely mandates a particular decision-making process; it does not mandate certain results in terms of actions taken or environmental effects avoided. Accordingly, NEPA operates merely as a "stop and think first" statute: before a federal agency acts, it must consider the possible environmental consequences; having prepared an appropriate EA or EIS and having taken it into account, the agency can go right ahead with its plans—despite alternative courses of action that might mitigate or eliminate the adverse environmental consequences that may result from the proposed agency action.
As a result, more than thirty years after the enactment of NEPA, debate continues to rage with regard to whether the statute has resulted in agency decision making that minimizes, to the greatest practicable extent, the adverse impact of federal actions on the natural environment. This debate has not, however, discouraged states, other countries, and the international community from transplanting NEPA's technique of environmental impact assessment into their own distinctive legal systems.
Bibliography
Anderson, Frederick R. NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act. Washington, DC: Resources for the Future, 1973.
Caldwell, Lynton K. The National Environmental Policy Act: An Agenda for the Future. Bloomington, IN: Indiana University Press, 1998.
Council on Environmental Quality. NEPAnet. July 2003. .
Mandelker, Daniel R. NEPA Law and Litigation, 2nd ed. New York: Clark Boardman Callaghan, 1992.
The National Environmental Policy Act: A Study of Effectiveness after Twenty-Five Years. Washington, DC: Council on Environmental Quality, Executive Office of the President, 1997.
Taylor, Serge. Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform. Stanford, CA: Stanford University Press, 1984.
