How'd We Get Divorced?: The Curious Case of NEPA and Planning

• Date: 01 July 2009

7-2009 nEwS & anaLYSiS 39 ELR 10645

How’d We Get Divorced?: The

Curious Case of NEPA and Planning

by Oliver A. Houck

Oliver A. Houck is Professor of Law, Tulane University. e research assistance of Diana Csank

and Claire Yancey, Tulane Law School 2010, is acknowledged with gratitude.

e battle for the qual ity of the A merican environment is a

battle against neglec t, mismanagement, poor planning, and

a piecemeal approach to problems of natur al resources. It is

a battle that will h ave to be fought on every level of govern-

ment ... we must re-examine a ll existing Federal programs

with the aim of coordinating them.... We cannot aord a

policy that promises much but delivers little.

—President Richard M. Nixon, l9681

If the framers of the National Environmental Policy Act

(NEPA),2 the expert witnesses and agency personnel who

testied on its behalf, the staers who massaged and

drafted it, the legislators who enacted it, and the president

of the United States who signed it were to see NEPA today,

in what regard would they be the most surprised and disap-

pointed? One would be the relegation of §101’s principles to

the scrap bin, and another would certainly be the extent to

which §102 would be driven forward by litigation. e big-

gest surprise, however, might be the separation of environ-

mental considerations from federal planning, which, per the

legislative history, was the whole problem in the rst place.

Forty years later, many federal agencies and programs

have stuck with the notion of environmental planning and

struggle to make it work. But not the biggest. Two federal

actors whose projects more than any others generated the

public anger and call for environmental reform that led to

NEPA in the rst place have managed to escape it. One is

the Federal Highway Administration (FHwA) (nee Bureau

of Roads), which by the l960s had converted a modest net-

work of inter-city civil defense highways into the largest con-

struction program in the world, funded by its own trust and

impervious to opposition.3 “Highways,” editorialized the

1. Statement of President Richard M. Nixon on October 19, 1968, reprinted in

Bills to Authorize the Secretary of the Interior to Conduct Investigations, Studies,

Surveys, and Research Relating to the Nation’s Ecological Systems, Natural Re-

sources, and Environmental Quality, and to Establish a Council on Environmental

Quality: Hearing on S. 1075, S. 237, and S. 1752 Before the Comm. on Interior

and Insular Aairs U.S. Sen., 91st Cong., 1st Sess. 105-07 (1969) [hereinafter

Hearing of 1969].

2. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

3. For a discussion of the origins of the federal-aid highway program, rising op-

position to it, and the literature that followed, see Atlanta Coalition, in Oliver

New York Times in 1966, “march—imperially, relentlessly,

inexorably—across stream, meadow and woodland” and “as

neighborhoods are sliced in two and cemeteries are relocated,

neither the quick nor the dead are safe.”4 Years before the

advent of NEPA, these were the rst environmental lawsuits,

based on slender legal threads, and the literature of the time

speaks volumes of the frustration behind them: e Pavers

and the Paved, Superhighway-Superhoax, Road to Ruin, e

End of the Road. Small wonder, then, that following NEPA’s

passage, federal highway projects took a major hit.5

Another NEPA trigger was national forest management,

which following the Second World War had been trans-

formed from Giord Pinchot’s principles of sustained yield

to a maximum-board-foot machine based on widescale

clearcutting.6 e pushback here was equally widescale and

deeply felt. Well before NEPA, the lawsuits started coming

in based on multiple use, the Organic Act of 1897, and other

theories, few of them successful (although one, spectacularly

so).7A district court in A laska approved, as multiple use, a

proposal to “liquidate” 99.4% of the Tongass national for-

est, the largest timber inventory in the United States.8 en

came NEPA, followed by a forest management act based on,

of all novel ideas, planning.9 Plans are one thing, however,

and changes in behavior another. Small wonder, then, that

the clearcutting continued and would be contested tooth-

and-nail in the NEPA process.

A. Houck, More Unnished Stories: Lucas, Atlanta Coalition, & Palia/Sweet

Home, 75 U. C. L. R. 331, 368-77 (2004), and sources cited therein.

4. Editorial, N.Y. T, Nov. 20, 1966.

5. Between 1966 and 1969, 14 lawsuits were led challenging federal aid highways.

In 1970, following the enactment of NEPA, the total rose to 17 lawsuits, to 27

the following year, and to 48 the next. R A. L, A N P

  E: NEPA  I A 34 (1976). With NEPA,

people pushed aside by the highways nally had the means to push back.

6. Oliver A. Houck, e Water, the Trees, and the Land: ree Nearly Forgotten

Cases at Changed the American Landscape, 70 T. L. R. 2279, 2292-96

(1996).

7. e spectacular exception was West Virginia Division of Izaak Walton League of

America v. Butz, 522 F.2d 945(4th Cir. 1975), which found clearcutting to be a

violation of the forest Organic Act of 1897, providing momentum for a new law.

8. Sierra Club v. Hardin, 325 F. Supp. 99, 1 ELR 20161 (D. Alaska 1971).

9. National Forest Management Act (NFMA) of 1976, 16 U.S.C. §§1600-1687,

ELR S. NFMA §§2-16. Prescriptive planning provisions are found in

§1604 of the Act.