CHAPTER 2 THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

• Jurisdiction: United States

Natural Resources Environmental Law
(Feb 1972)
CHAPTER 2
THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
Peter Keppler
Staff Attorney Environmental Planning and Protection Committee American Metal Climax, Inc.

TABLE OF CONTENTS

A. Introduction

B. Legislative History (Committee Reports)

1. House of Representatives

2. Senate

3. Conference Committee

C. NEPA Provisions

1. Title I — Declaration of National Environmental Policy

2. Title II — Council on Environmental Quality

D. Practical Application of the Act

E. Court Decisions

1. Cause of Action

2. Scope of Review

3. Standing

4. Retroactivity

F. Conclusion

G. Bibliography

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A. Introduction

The purpose of this paper is to lay the foundation for the papers and panel discussions to follow. The response of Federal agencies and business, problems of administering the National Environmental Policy Act of 1969, the role of the Council on Environmental Quality and the Environmental Protection Agency, and a step-by-step analysis of preparing and reviewing an environmental impact statement will be considered in depth by the other speakers on the program. The objective here has been to give the reader a concise, practical orientation to the Act and the major court decisions interpreting this historic statute.

In light of this objective, references to secondary sources have been minimized. Some of the excellent articles providing valuable insight to the Act, its legislative history, and pertinent court decisions are listed in the bibliography appended hereto. The author is indebted to David E. Lindgren, Associate Solicitor for Public Lands, Department of the Interior, whose paper, "Conservation, the Environment and Federal Oil and Gas Operations: The Future under the National Environmental Policy Act of 1969," presented

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at the 17th Annual Rocky Mountain Mineral Law Institute (1971), provided much of the background information for this analysis.

At the outset, it should be noted that the National Environmental Policy Act, a statute of far-reaching impact which is just now beginning to be recognized, has a relatively meager legislative history. It appears that Congress suddenly was made aware of the need for a declaration of national policy recognizing that economic growth could no longer be promoted at the cost of environmental degradation. Widely differing versions of the Act were introduced in both Houses of Congress in February, 1969, reported out of committee in July, quickly passed by both the House and the Senate, considered in conference committee, and the committee compromise was passed and submitted to the President for his signature in December of the same year. The House version (H.R. 12549) was merely in the form of an amendment to the Fish and Wildlife Coordination Act that would have created a five-member Council on Environmental Quality to advise the President, and through him the Congress and the American people, on steps which should be taken to improve the quality of the national environment. On the other hand, the

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Senate proposal (S.1075) contained the broad declaration of policy and specific procedures for implementing this policy which carried over to the final draft of the Act.

B. Legislative History (Committee Reports)

1. House of Representatives

The concept of an independent advisory council to the President on environmental matters was first recommended in a task force report to the Secretary of Health, Education and Welfare in June, 1967, titled "A Strategy for a Livable Environment."¹ Legislation to accomplish this purpose was introduced in the 90th Congress by several members of the House. No action was taken on any of these proposals. On February 17, 1969, Congressman Dingell introduced H.R. 6750, providing for an independent advisory council on environmental problems.

Several similar bills were subsequently introduced in the House. The Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries held seven days of hearings on this legislation in May and June, 1969. Thereafter, the Subcommittee unanimously reported to the full Committee a clean bill, H.R. 12549, which was in essence H.R. 6750,

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with amendments.²⁴¹ H.R. 12549 would have amended the Fish and Wildlife Coordination Act²⁴² to provide for the establishment of a five-member Council on Environmental Quality in the Executive Office of the President.

After indicating that many environmental problems confront us today and thus point to the need for such legislation, the Committee report states that the purpose of H.R. 12549, "...is to create, by legislative action, standing outside the programs that can be done and undone by unilateral executive action, a Council which can provide a consistent and expert source of review of national policies, environmental problems and trends, both long term and short term."²⁴³ The House bill did not contain the broad policy declarations and environmental impact statement requirement incorporated in the final version of this legislation.

2. Senate

S. 1075, the National Environmental Policy Act of 1969, was introduced on February 18, 1969, by Senator Jackson. Many of the concepts incorporated in S. 1075 and two related bills introduced by Senators Nelson (S. 1752) and McGovern (S. 237) were drawn from proposals introduced

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in previous Congresses.²⁵¹ Hearings were held on these three bills on April 16, 1969, before the full Senate Committee on Interior and Insular Affairs. After several committee meetings and consultations with representatives of other Federal departments, some amendments were incorporated in S. 1075, and the measure was ordered reported to the Senate on July 8, 1969.

The Senate Interior and Insular Affairs Committee expressed the urgent need for this legislation:

...In our management of the environment we have exceeded its adaptive and recuperative powers, and in one form or another we must now pay directly the costs of maintaining air, water, soil, and living space in quantities and qualities sufficient to our needs. Economic good sense requires the declaration of a policy and the establishment of a comprehensive environmental quality program now. Today we have the option of channeling some of our wealth into the protection of our future. If we fail to do this in an adequate and timely manner, we may find ourselves confronted, even in this generation, with an environmental catastrophe that could render our wealth meaningless and which no amount of money could ever cure.²⁵²

The committee believes that America's capacity as a nation to confront these

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conditions and deal more effectively with the growing list of environmental hazards and problems resulting from these conditions can be improved and broadened if the Congress clarifies the goals, concepts, and procedures which determine and guide the programs and the activities of Federal agencies. Moreover, this can be done with the reasonable prospect that State, local, and private action will also be favorably influenced.²⁶¹

The Committee report states that the purpose of S. 1075 "...is to establish by Congressional action, a national policy to guide Federal activities which are involved with or related to the management of the environment or which have an impact on the quality of the environment."²⁶² One of the ways in which the Senate proposal would contribute to a more orderly, rational, and constructive Federal response to environmental decision making noted in the report is through certain "action-forcing" provisions and procedures incorporated in S.1075 which were designed to insure that all Federal agencies plan and work toward meeting the challenge of a better environment.²⁶³

S. 1075, as passed by the Senate, was a more extensive and all-encompassing proposal than the House

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version. Much of the "Declaration of National Environmental Policy" that appears in Title I of NEPA came from S. 1075. The Senate bill was actually more sweeping and broad in its provisions than the final version enacted by Congress and approved by President Nixon.

3. Conference Committee

Many provisions of S. 1075 were retained in the final version of the bill agreed to by the House and Senate conferees.²⁷¹ Two changes made in the Senate version merit special attention. Section 101(d) of S. 1075, which provided that the Congress recognizes that "each person has a fundamental and inalienable right to a healthful environment...," was redrafted to read "The Congress recognizes that each person should enjoy a healthful environment...." This language was adopted because of doubt by the House conferees regarding the legal scope of the original Senate provision.²⁷² Also, section 102 of S. 1075 was amended to provide that the Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with policies set forth in this Act, and (2) all agencies of the Federal Government shall comply with

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certain requirements set forth in subparagraphs (A) through (H) of clause (2), section 102. The conference substitute provided that the phrase "to the fullest extent possible" applied to both clauses (1) and (2) of section 102; in the Senate bill the phrase applied only to the directive in clause (1). As noted in the Conference Report, "The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in such subparagraphs (A) through (H) unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible."²⁸¹ Further, "...it is the intent of the conferees that the provision 'to the fullest extent possible' shall not...