Judicial Review

AuthorNicholas C. Yost
Pages25-34
Page 25
Introduction
The Importance of Courts in the NEPA Process
It is judicial review that has given NEPA its signica nce. e Act places regulatory obligations on agen-
cies without apparent means of oversight. By the conscious choice of its dra fters, NEPA internali zes each
agency’s environmental obligations and is thus essentially self-regulatory in nature. Rather tha n 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 t he 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 fami liar judicial strains. Implementation of the procedural provisions
of NEPA is judicially comfortable. It has also ensured the succe ss 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, the requirements of a “detailed statement”—the NEPA term for what has become popularly known as
the EIS—was substituted for a requirement of “ndings because Senator Muskie believed that such ndings would too strongly reect
self-serving agencies’ mission-oriented priorities. 115 C. R. 29053 (1969).
2.
A R   D   A O   U S C 1980, at 376, tbl. C3
(1981).
3. e nonstatutory cases were overwhelmingly actions under contracts, while the balance primarily involved torts and real property. Id.
4. Id. at 374, tbl. C2.
5. Id. Less than 1% (0.716%) of the cases to which the United States was a party were environmental in nature. Of the statutory actions in which
the United States as a defendant, 1.102% were environmental.
III. Judicial Review

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