Administering the National Environmental Policy Act

Date01 April 2015
4-2015 NEWS & ANALYSIS 45 ELR 10287
the National
Policy Act
by Jamison E. Colburn
Jamison E. Colburn is Joseph H. Goldstein Faculty
Scholar and Professor of Law at Penn State University.
In practice, the Council for Environmental Quality
(CEQ) has been treated as the “administering agency”
for the National Environmental Policy Act (NEPA),
and courts and most action agencies have regarded
its rules as binding law. Yet, a close examination of
NEPA’s language and evolution reveals that CEQ
authority is grounded more in the president’s Article II
power than in any statutory delegation from Congress.
is executive-branch authority to implement NEPA
has garnered strong judicial deference and remained
unquestioned despite prevailing doctrine to the
opposite eect. e paradox of NEPA also creates an
opportunity, as the president’s constitutional authority
could likewise be used to put NEPA’s more substan-
tive elements into eect. NEPA’s administration can
and should inform a refocused approach by the White
House that executes NEPA to its fullest potential: the
making of America into a sustainablecivilization.
I. Introduction
A. Questions Plague CEQ’s Role
e Council on Environmental Quality (CEQ) was cre-
ated by the National Environmental Policy Act (NEPA),1
which by its terms casts CEQ as an advisor to the presi-
dent. President Richard M. Nixon rst ordered CEQ in
1970 to create gu idelines for federa l agencies to follow in
discharging their duties under the statute. ose guidelines
also inuenced the courts that rst interpreted NEPA in
some obvious and some subtle ways.
In 1977, President Jimmy Carter ordered that CEQ
issue rules binding on all agencies, replacing the informal
guidelines with purportedly binding regulations imple-
menting NEPA. Did that make CEQ NEPA’s adminis-
tering agency? Can presidential action of this sort entitle
CEQ’s interpretations of NEPA to Chevron2 deference? If
so, what of the “agencies of the Federal Government” that
are charged by the statute with generating its “detailed
statements” and pursuing its “national policy”?
In practice, CEQ’s ru les have been regarded by courts
and most action agencies as law, at least in a sense. Yet, the
CEQ rules cover only a tiny fraction of NEPA’s domain.
ey say virtually nothing about the priorities t hat deci-
sionmakers should set, the types of environmental damage
we must strive to avoid, or the ways that environmental
risks and benets should be balanced. e U.S. Supreme
Court has ad monished the lower federal courts repeatedly
that it is not the courts’ place to opine on any of that, and
has done so emphatically and often enough that virtually
no one contends otherwise. is leaves NEPA’s substance
virtually ignored by both CEQ’s interpretations and those
of reviewing courts.
CEQ and its rules are more than some errant departure
from prevailing doctrine, though. ey demonstrate some-
thing fundamental about our president’s authority in the
administrative state and perhaps how presidents exert their
most enduring inuences. If a n administration hopes to
utilize NEPA to its fullest potential in setting the nation’s
environmental agenda, it would do well to understand the
paradoxes of NEPA’s administration to date.
B. Background on NEPA’s Administration
NEPA’s administration has been full of paradox. e
authority of the president and CEQ to implement NEPA,
garnering strong judicial deference in doing so, remain
unquestioned despite prevailing doctrine to the opposite
1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
2. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 14
ELR 20507 (1984).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
eect. NEPA nowhere vests the authority to “administer” it
as a whole, yet it is precisely the sort of policyma king stat-
ute that courts know is not for their administration. NEPA
is renowned for its oft-copied procedural innovation: the
environmental impact statement (EIS). Yet, the statute’s
real goals are no less than the remaking of America into a
sustainable civilization.
Finally, the authority that has made NEPA regulations
“law”—the president’s power to guide and supervise ocers
of the United States who execute the law— also estranges
them from NEPA’s champions. NEPA’s typical champions
are environmental progressives who regard the “imperia l
president” skeptically and have attacked White House reg-
ulatory review for a generation.3 To them, executive power
is usually cravenly political and anti-environment.
Yet, it is the president’s constitutional powers that
ground the very NEPA rules forming t he basis of contem-
porary NEPA law. Indeed, as I arg ue here, only the presi-
dent’s constitutional authority to see that laws are executed
can put NEPA’s more substantive elements into eect. Part
II of this Article explains what it means for an agency to be
the administering authority of a goal statute. Part III traces
the evolution of NEPA from nonbinding CEQ guidelines
to CEQ’s regulations and their place in contemporary law.
Part IV reconciles NEPA’s administration with prevail-
ing Supreme Court doctrines on agency authority. Part V
argues that NEPA’s administration can and should inform
a refocused approach by the White House that executes
NEPA to its fullest potential.
II. An Agency’s Authority to Administer
is part introduces key terms and relationships in under-
standing NEPA and its implementation since 1970. Section
A describes what modern courts have cal led the authority
to administer a statute. Section B traces the outlines of a
typical regulatory agency and the ways that it makes law.
A. Authority to Administer a Statute
Whether an agency is empowered with what might be
called jurisdictional authority—the authority to govern
others with the binding force of law—was long overlooked
in court.4 Only where a challenger’s case or controversy5
3. See, e.g., Robert V. Percival,  -
, 54 L.  C. P. 127
(1991);  , 51 D L.J.
963 (2001); and -
  , 79 F L. R. 2487 (2011)
[hereinafter Percival, ].
4. See omas W. Merrill & Kathryn Tongue Watts,   
    , 116 H. L. R. 467, 529-37
(2002). omas Merrill and Kathryn Watts identied at least eight dierent
Supreme Court opinions of the last century where the Court ignored the
granting or withholding of agency jurisdictional authority. Id. at 528 n.306.
ey singled out Mourning v. Family Pubs. Serv., Inc., 411 U.S. 356, 373-77
(1973), and   , 393 U.S. 268,
274-81 (1969), as “the low-water mark in terms of attention to congressio-
nal delegations of power to agencies to act with the force of law.” Id. at 537.
5. U.S. C., art. III, §2.
turns on the matter must a court reach a determination.6
Indeed, in pa rt because of the structure of our judicial
power, three distinct questions of agency authority have
often run together here: (1)the availability a nd scope of
judicial review of agency action; (2) the degree of defer-
ence, if any, owed by courts to agencies’ interpretations of
law; and (3)whether agency actions possess the properties
of law. e “system of judicial remedies,” as Prof. Louis L.
Jae called it,7 has worked as a powerful constraint on the
judiciary’s attention to these issues.
An exception is Chrysler Corp. v. Brown, where the
entire controversy turned on whether an agency’s rule
was “law” within the meaning of the governing statute.8
To resolve the issue, the Supreme Court had to establish
whether and which of the agency’s rules could possess the
properties of law. e preemption of inconsistent state law,
the creation or revision of “substantive ... individual rights
and obligations,” and other similar properties were held up
as the indicia of agency rules that t the description of law.9
In order for agency rules to “have ‘the force and eect of
law,’” the Court held, “it is necessar y to establish a nexus
between the [rule] and some delegation of the requisite leg-
islative authority by [the U.S.] Congress.”10 An executive
order directing that agencies pursue some policy or take
other action was not sucient to the task, according to the
Chrysler Court.11
e Court’s drift on this set of issues long left its prec-
edents virtually irreconcilable.12 Several of the precedents
cited in Chevron13 had conated the Chrysler issue with
what deference is owed to an agency’s interpretation of
law.14 Chevron itself was less about U.S. Environmental
Protection Agency (EPA) delegations of authority in the
Clean Air Act (CAA)15 than it was about EPA’s particular
CAA interpretation being challenged.16 EPA’s interpreta-
6. See, e.g., National Petroleum Reners Ass’n v. Federal Trade Comm’n, 482
F.2d 672 (D.C. Cir. 1973); National Nutritional Foods Ass’n v. Weinberger,
512 F.2d 688, 694-98 (2d Cir. 1975); General Elec. Co. v. Gilbert, 429 U.S.
125 (1976); Chrysler Corp. v. Brown, 441 U.S. 281 (1979); Adams Fruit
Co. v. Barrett, 494 U.S. 638 (1990); Kelley v. EPA, 15 F.3d 1100, 24 ELR
20511 (D.C. Cir. 1994).
7. L L. J, J C  A A 152
8. Chrysler Corp., 441 U.S. at 294-316.
9. Id. at 295-302.
10. Id. at 304.
11. Id. at 303-08; see also United States v. Howard, 352 U.S. 212, 219 (1957).
12. Inconsistency by the Court is perhaps to be expected. See Frank H. Easter-
brook, , 95 H. L. R. 802, 823-31 (1982)
(arguing that the Court is bound to exhibit inconsistency over time). But see
M J. G, T P  P 79 (2008) (judges “gen-
erally know from experience, training, and temperament [that] they cannot
be too disdainful of precedents or else they risk having other justices show
the same, or even more, disdain for their preferred precedents”) Michael
Gerhardt calls this “the golden rule.”
13. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
14 ELR 20507 (1984).
14. See, e.g., Batterton v. Francis, 432 U.S. 416, 424-25 (1977); Morton v. Ruiz,
415 U.S. 199, 231-37 (1974); Mourning v. Family Pubs. Serv., Inc., 411
U.S. 356, 369-70 (1973); see Merrill & Watts, supra note 4, at 528-87; 
Henry P. Monaghan, Marbury , 83 C. L.
R. 1, 5-6 (1983).
15. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
16. e U.S. Court of Appeals for the District of Columbia (D.C.) Circuit had
twice previously construed the CAA’s term “stationary source,” both times
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
4-2015 NEWS & ANALYSIS 45 ELR 10289
tion was contrary to the U.S. Court of Appeals for the Dis-
trict of Columbia (D.C.) Circuit precedent construing the
CAA, and that court’s reversal of EPA was, in largest part,
protecting its judicial power to settle the law.17 But stat-
utes like the C AA, the Supreme Court warned,18 do more
to charge administrative agencies with missions and goals
than they do to create standards of conduct by which any-
one—including the agency—shall be judged.19
Chevron’s directions proved much easier to signal than
to follow. Precedents addressing our three dierent ques-
tions (with less than perspicuous reasoning) had long
seemed virtually interchangeable.20 For years a fter Chev-
ron, commentators and courts focused on whether and to
what extent t he decision had overruled the mountain of
precedents factoring out whether and to what degree courts
should defer to agencies’ interpretations of law.21 Statutes
must, af ter all, grant federal courts jurisdiction to review
administrative agency action.22 So, the dierences between
rejecting EPA’s interpretation. See ASARCO, Inc. v. EPA, 578 F.2d 319, 8
ELR 20164 (D.C. Cir. 1978); Alabama Power Co. v. Costle, 636 F.2d 323,
10 ELR 20001 (D.C. Cir. 1979).
17. en-Circuit Judge Ruth Bader Ginsburg’s opinion in  
Council, Inc. v. Gorsuch, 685 F.2d 718, 720, 12 ELR 20942 (D.C. Cir.
1982), began by noting that “[i]n ruling upon EPA’s regulatory change, we
do not write on a clean slate.” After describing the holdings in 
and , the D.C. Circuit panel found itself “impelled” by those
precedents to overrule EPA’s interpretation of the term stationary source.
Gorsuch, 685 F.2d at 720 & n.7 (quoting Potomac Alliance v. NRC, 682
F.2d 1030, 1031 (D.C. Cir. 1982)). Curiously, even as it disclaimed any
view or judgment not dictated by  or , the court
then took eight pages to explain why EPA’s regulations were contrary to the
Act’s structure and legislative history. Id. at 721-28.
18. See Chevron, 467 U.S. at 843-44 (“If Congress has explicitly left a gap for
the agency to ll, there is an express delegation of authority to the agency to
elucidate a specic provision of the statute by regulation.”).
19. See, e.g., Edward L. Rubin, ,
89 C. L. R. 369 (1989).
20.  Frank C. Newman, How Courts Interpret Regulations, 35 C. L. R.
509, 513 (1947) (“e Supreme Court has decided hundreds of cases which
relate to regulations. In most, the dispute has involved only validity; or
words of a regulation were quoted merely to justify some other ... hold-
ing.”) (citations omitted). Frank Newman reviewed dozens of cases involv-
ing interpretive, jurisdictional, or both types of authority and concluded
that “[t]he rule of deference cases” had come to ser ve as “precedents for
nearly all other cases.” Id. at 528. In decisions relaxing the restrictions on
interpreting delegations of lawmaking power, it has been commonplace to
cite precedents that involve deferring to agencies’ interpretations of their en-
abling statutes. See, e.g., National Petroleum Reners Ass’n v. Federal Trade
Comm’n, 482 F.2d 672, 676-97 (D.C. Cir. 1973); National Nutritional
Foods Ass’n v. Weinberger, 512 F.2d 688, 695-99 (2d Cir. 1975); Santise v.
Schweiker, 676 F.2d 925, 933-34 (3d Cir. 1982).
21. Compare Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 Y
J.  R . 283, 299 (1986) (“[I]t is not clear to what extent the ‘sliding
scale’ [factored] approach is still appropriate, or to what extent any of the
factors usually employed in that analysis [of whether a court should defer
to an agency’s interpretation] are still relevant.”), with Stephen Breyer, Ju-
  , 38 A. L. R. 363, 373
(1986) (“To read Chevron as laying down a blanket ru le, applicable to a ll
agency interpretations of law, such as ‘always defer to t he agency when
the statute is si lent,’ would be seriously overbroad, cou nterproductive and
sometimes senseless.”).
22. Whether by way of express or implied preclusion of review, the default po-
sition in availability of review has long been that some statute must both
authorize and locate the appropriate forum of judicial review. See, e.g.,
Heckler v. Chaney, 470 U.S. 821, 15 ELR 20335 (1985); Block v. Com-
munity Nutrition Inst., 467 U.S. 340 (1984); FTC v. Standard Oil of Cal.,
449 U.S. 232 (1980); Califano v. Sanders, 430 U.S. 99 (1977); FCC v.
Pottsville Broad. Co., 309 U.S. 134 (1940); United States v. Los Angeles &
S.L.R. Co., 373 U.S. 299, 308-13 (1927). On the gradual transition from
jurisdictional and interpretive authority had confounded
reviewing cour ts not merely in how to review an agency’s
interpretation of legislation23; the dierences had also con-
founded courts in how they interpret their own authority
to act.24 Put simply, Chevron’s precedent—whether syn-
thesis or revolution25—could scarcely have prevented our
three issues from intermixing.26
Finally, the Chevron case was an odd vessel of change:
e opinion’s author, Justice John Paul Stevens, seems not
to have been onboard27; the opinion simply ignored con-
trary authority28; and in retrospect, its grounds seem satu-
rated w ith irony if not mistaken.29 Deriving legal norms
from judicial reasoning is never easy.30 In practice, “[t]he
Court has no rules for determining the breadth or narrow-
ness of a particular ruling, how much or how little defer-
ence a justice ought to give a prior decision, the requisite
conditions for determining error,” or “how to prioritize
sources of decision, or how to read prior cases, including
the appropriate level of generality at which to state the
principles set forth within precedents.”31
e Court is well aware of its duty to settle the law.32
Using a sequence of opinions to elaborate, the Court even-
the common-law writs to the 20th century’s statutory regime, see J L.
M, C  A C: T L O
H Y  A A L (2012).
23.  General Elec. Co. v. Gilbert, 429 U.S. 125, 140-44 (1975) (holding that
the Equal Employment Opportunity Commission (EEOC) lacked author-
ity to issue guidelines interpreting Title VII of the Civil Rights Act of 1964,
contrary to the Supreme Court’s interpretation).
24. Compare FCC v. American Broad. Co., 347 U.S. 284, 286-96 (1954)
(holding that the Federal Communications Commission (FCC) exceeded
the scope of its authority to enforce its statute and that, therefore, the chal-
lengers’ actions were properly heard in the district court), with Columbia
Broad. Serv., Inc. v. United States, 316 U.S. 407, 415-25 (1942) (nding
that the order promulgating the regulations that the broadcasters challenged
was within the scope of the jurisdiction-conferring statute because the regu-
lations were determinative of the challengers’ primary conduct rights).
25.  S G. B  ., A L  R
P 282 (7th ed. 2011) (beginning the discussion of Chevron by ques-
tioning whether the decision was a synthesis or a revolution).
26. See, e.g., United States v. O’Hagan, 521 U.S. 642, 673 (1997) (Securities
Exchange Commission entitled to Chevron deference in interpreting its gov-
erning statute because the statute gave the agency authority to adopt rules);
United States v. Haggar Apparel Co., 526 U.S. 380, 392 (1999) (Chevron
cited for giving “controlling weight” to an agency’s interpretation of its own
regulation interpreting its statutes); FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132-33 (2000) (Chevron deference was denied to the
Food & Drug Administration’s interpretation inferring jurisdictional au-
thority from one statute in part because of other, subsequent statutes’ denial
of such authority).
27. See omas W. Merrill, Justice Stevens and the Chevron , 106 N. U.
L. R. 551, 556-60 (2012) (noting evidence from retired Justice’s papers
and his own subsequent opinions that Justice John Paul Stevens had no
intention of changing the law through his Chevron opinion).
28. See Starr, supra note 21, at 298-300.
29. Chevron purports to be an interpretation—or at least a constructive rehabili-
tation—of congressional intent. See Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843-44, 14 ELR 20507 (1984); United
States v. Mead, 533 U.S. 218, 227-28 (2001). But the interpretation seems
based less on hard evidence than on intuition. See Cynthia Farina, Statu-
   , 89
C. L. R. 452, 471 (1989).
30. See F S, T L  L, A N I
 L R 36-60 (2009).
31. G, supra note 12, at 104-05.
32. Compare Di Santo v. Pennsylvania, 273 U.S. 34, 42 (1927) (Brandeis, J.,
dissenting) (“It is usually more important that a rule be settled, than that it
be settled right.”), with Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson,
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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