Judicial Review

• Author: Nicholas C. Yost
• Pages: 25-34

Page 25

Introduction

The Importance of Courts in the NEPA Process

It is judicial review that has given NEPA its signicance. e Act places regulatory obligations on agen-

cies without apparent means of oversight. By the conscious choice of its drafters, NEPA internalizes each

agency’s environmental obligations and is thus essentially self-regulatory in nature. Rather than relying on

an outside agency for environmental analysis, each agency is to consider the environmental impacts of its

own actions. While NEPA supplies a pervasive impetus for environmentally responsible decisionmaking

throughout the government, the absence of institutional enforcement invites administrative inattention

and noncompliance.1 e CEQ, as a White House agency, is too small to get involved in numerous

individual projects. EPA’s leverage under §309 of the CAA is murky at best, and the Agency is no disinter-

ested party, given its conicting role as a principal preparer of EISs on its own actions. Clearly, successful

implementation of NEPA must depend on some other institution removed from the administrative process.

NEPA’s enforcement ultimately depends on the courts. Fortunately, the action-forcing provisions of the

Act neatly lend themselves to judicial enforcement. e importance of the role these provisions have played

in fostering judicial acceptance of the Act cannot be overemphasized. Judges may, and usually should,

reasonably question their competence to second-guess the scientic determinations of administrative agen-

cies. Judges may also lack understanding of or sympathy for claimants’ environmental goals. But all judges

understand procedure. e requirement that an EIS must be led as a condition precedent to an action is

just the sort of requirement that taps familiar judicial strains. Implementation of the procedural provisions

of NEPA is judicially comfortable. It has also ensured the success of the Act.

NEPA Litigation in the Courts

NEPA litigation, while not extensive, constitutes a signicant proportion of the environmental litigation

against the government. In 1980, for example, the United States was a party to 63,628 actions commenced

in federal district court.2 Of these, 26,835 actions were brought under statutes3; of these, the United States

was plainti in 8,600 cases and defendant in 18,235.4 e United States was defendant in 201 of the 457

statutory cases that involved environmental causes of action.5 In that same year, the CEQ reported that 140

1. Sen. Edmund Muskie ( D-Me .) was somewhat leery of NEPA’s self-scrutiny approach. As part of the negotiation between Sens. H enr y

Jackson ( D. Was h.) and Muskie,therequirementsofa“detailedstatement”—theNEPAtermforwhathasbecomepopularlyknownas

theEIS—wassubstitutedforarequirementof“ndings”becauseSenatorMuskiebelievedthatsuchndingswouldtoostronglyreect

self-servingagencies’mission-orientedpriorities.115C.R.29053(1969).

2.

ARDAOUSC1980,at376,tbl.C3

(1981).

3. enonstatutorycaseswereoverwhelminglyactionsundercontracts,whilethebalanceprimarilyinvolvedtortsandrealproperty.Id.

4. Id.at374,tbl.C2.

5. Id.Lessthan1%(0.716%)ofthecasestowhichtheUnitedStateswasapartywereenvironmentalinnature.Ofthestatutoryactionsinwhich

theUnitedStatesasadefendant,1.102%wereenvironmental.

III. JudicialReview