Administering the National Environmental Policy Act

• Date: 01 April 2015

4-2015 NEWS & ANALYSIS 45 ELR 10287

A R T I CL E S

Administering

the National

Environmental

PolicyAct

by Jamison E. Colburn

Jamison E. Colburn is Joseph H. Goldstein Faculty

Scholar and Professor of Law at Penn State University.

Summary

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 guidelines for federal 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 Chevron2deference? 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 rules 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 that 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 admonished 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 an 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®, http://www.eli.org, 1-800-433-5120.

45 ELR 10288 ENVIRONMENTAL LAW REPORTER 4-2015

eect. NEPA nowhere vests the authority to “administer” it

as a whole, yet it is precisely the sort of policymaking 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

sustainablecivilization.

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 “imperial

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 the basis of contem-

porary NEPA law. Indeed, as I argue 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’sAuthority 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 called 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 jurisdictionalauthority—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 part because of the structure of our judicial

power, three distinct questions of agency authority have

often run together here: (1)the availability and 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.14Chevron 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.16EPA’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

(1965).

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®, http://www.eli.org, 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 after Chev-

ron,commentators and courts focused on whether and to

what extent the decisionhad overruled the mountain of

precedents factoring out whether and to what degree courts

should defer to agencies’ interpretations of law.21 Statutes

must, after 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. SeeChevron, 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 courts 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.24Put 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 with 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.”), withBrown v. Allen, 344 U.S. 443, 540 (1953) (Jackson,

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