Chapter 1 NEPA: Still the Pathway to Better Decisions

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Chapter 1 NEPA: Still the Pathway to Better Decisions

LeRoy (Lee) Paddock
Distinguished Professorial Lecturer in Environmental Law
The George Washington University Law School
Washington, D.C.

LEROY C. PADDOCK is a Distinguished Professorial Lecturer of Environmental Law at The George Washington University Law School, and a Visiting Scholar at the Environmental Law Institute where he is Managing Director of the International Network for Environmental Compliance and Enforcement. He previously served as Associate Dean for Environmental Law Studies at The George Washington University Law School from 2007-2019 and was Director of Environmental Legal Studies at Pace University's Haub School of Law from 2002-2007. Lee's research has focused on private environmental governance, environmental compliance and enforcement, environmental justice, aspects of energy law, citizen environmental science, climate change litigation, public participation, and materials conservation. He is the author of the forthcoming book titled "Advanced Introduction to Environmental Compliance and Enforcement," the editor of four other books, and has published nearly 40 book chapters and law review articles. Lee is a member of the International Union for the Conservation of Nature's World Commission on Environmental Law and the Academic Advisory Group on Energy for the International Bar Association Section of Environment, Energy, Resources and Infrastructure Law. From 1978 until 1999, Lee was an Assistant Attorney General with the Minnesota Attorney General's Office where he served as Director of Environmental Policy for 13 years, as manager of the Office's Agriculture and Natural Resources Division and as a member of its Executive Committee. He has been named to several national panels including the Aspen Institute's Series on Environment in the 21st Century and the American National Standard Institute's ISO 14000 Environmental Management Systems Council. He was a Senior Consultant for the National Academy of Public Administration for eight years. Lee clerked for Judge Donald Lay of the U.S. Eighth Circuit Court of Appeals. His law degree is from the University of Iowa Law School and his undergraduate degree from the University of Michigan.

While NEPA has now long passed the statute's 50th anniversary the law remains crucial for ensuring agencies have the information they need to make environmental decisions and the public is aware of and has the opportunity to play a role in this process. Although the law remains burdened with a number of issues that a variety of administrations have attempted to address to make the process more efficient (some too enthusiastically) and there will be important challenges as the new infrastructure projects are implemented, thousands of projects are more environmentally sound than they would have been in the absence of NEPA. Further, the NEPA policy which anticipated the idea of sustainable development, remains an element of national policy that should continue to be taken into account by Federal agencies, and supports agency actions to reduce environmental impacts in implementing their statutory authority. This paper explores in some detail the history of NEPA to remind us of the uniqueness of its development, the circumstances that drove its adoption, the consensus that supported its passage, the unique role that the courts have played in assuring compliance with the procedural aspects of NEPA, and the worldwide influence of NEPA. The paper concludes with some observations about NEPA's importance and its future.

The Resources and Conservation Act of 1959 was perhaps the first expression of the need for a law focused on understanding the impact of development on the environment. The legislation sponsored by Senator James Murray from Montana would have established a Council on Environmental Quality, declared a national environmental policy, required the preparation of an annual environmental report.

In the early 1960s Rachel Carlson's Silent Spring raised public awareness to environmental threats. Among her observations were that "man is a part of nature, and his war against nature is inevitably a war against himself" and that "The more clearly we can focus our attention on the wonders and realities of the universe about us, the less


taste we shall have for destruction." Her warnings were manifested in dramatic events such as the Santa Barbara oil spill and the 10th fire on the Cuyahoga River near Cleveland, both in 1969.

The 1960s were also characterized by high-profile environmental litigation. The Scenic Hudson Preservation Conference v. Federal Power Agency, 354 F2d 608 (2d Circuit 1965) ( challenging on aesthetic impact grounds a proposed license to site a pump storage unit for Consolidated Edison that would have defaced Storm King Mountain on the Hudson River. The case was an early instance where a court found that an environmental plaintiff had standing to protect aesthetic resources. The court held that "In order to ensure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas must be held to be included in the class of 'aggrieved' parties under s. 313 (b)." Judge Hayes went on to note "the cost of a project is only one of several factors to be considered" in addition to "the preservation of natural beauty and national historic sites."

In 1969, litigation was initiated in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1970). The court ultimately blocked a highway proposal that would have crossed through a park. The court held that under 4f of the Transportation Act of 1966 the Secretary of Transportation may not authorize use of federal funds to finance construction of highways through public parks if a "feasible and prudent" alternative route exists. If no such route is available, he may approve construction only if there has...

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