NEPA and Liberty, Now and Forever
| Date | 01 July 2009 |
| Author |
7-2009 nEwS & anaLYSiS 39 ELR 10629
NEPA and Liberty, Now and Forever*
by James M. McElsh Jr.
James M. McElsh Jr. is a senior attorney at the Environmental Law Institute.
The National Environmental Policy Act (NEPA)1 is
as American as it gets. It was invented here, and far
from being just an environmental review law (as so
many imitators are around the globe), it reects core ideas
about how government should relate to citizens, and citizens
to their government.
I. NEPA Is the One Law That Doesn’t
Presume That Government Has All the
Answers
NEPA makes it clear that our government works for us. And
sometimes we know better (or a little better) tha n the many
dedicated public servants and experts who, we hope, are
doing their best for us.
NEPA and its implementing regulations require the
federal government to consider the recommendations and
knowledge of citizens, companies, institutions, government
entities, and others who have rea sonable solutions or alter-
native approaches that may work better. NEPA requires the
government to review, understand, and address environmen-
tal issues a nd alternatives that its own employees or politi-
cal appointees may have overlooked. It requires the agencies
to seek out and encourage public awareness of actions, and
engage them in the process.2
e NEPA reg ulations provide, among other things, for
public participation in scoping (identifying potential alterna-
tives to the proposed action and environmental issues deserv-
ing consideration)3 and for public review and comment on
draft environmental impact statements (DEISs);4 and they
authorize agencies to seek comments on environmental
assessments (EAs).5 Federal agencies are required to respond
to all substantive comments, either by making warranted
changes in the analysis or by explaining why the comments
do not warrant further agency response.6
* With apologies to Daniel Webster, Reply to Hayne (Jan. 1830) (“Liberty and
Union, now and forever...”)
1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
2. 40 C.F.R. §1506.6.
3. 40 C.F.R. §1501.7.
4. 40 C.F.R. §1503.1.
5. 40 C.F.R. §1504(b).
6. 40 C.F.R §1503.4. ey must also explain why potential alternatives were
eliminated from detailed study. 40 C.F.R. §1502.14(a).
e result of these procedures is that alternatives are con-
sidered that the government would not have identied on its
own, that data are discovered t hat the government would
not have other wise identied, and that environmental issues
are studied that the government would not have identied or
studied. Bad decisions are sometimes avoided and good deci-
sions made even better. Mitigation measures are identied;
some of them are even adopted.
is happens more often than you would think....
In numerous cases, NEPA alternatives proposed by towns,
tribes, individuals, and others have been selected by federal
agencies after completion of the NEPA review in prefer-
ence to those the agency started with.7 is includes deci-
sions about land management, roads and infrastructure, use
of pesticides, disposa l of radionuclides, and management of
genetically modied organisms, among others. Early in my
own environmental practice, I represented a town concerned
about the siting of a new railroad line that was to ser ve a
new electric-generating plant. What became t he preferred
alternative, the route which was in fact built and is still oper-
ating today more than 25 years later, was identied during
scoping—not by the federal government nor by the power
company’s high-priced engineers and consultants—but by
an apple farmer who knew the land better than anyone else.
Just this month, the Bay Journal revealed t hat a 1,500-
page DEIS prepared by the U.S. Army Corps of Engineers
with the assistance of several state agencies, several years in
the making, contained mathematical errors t hat substan-
tially understated the risk prole of introducing non-native
oysters into the Chesapeake Bay. e errors were discovered
by a citizen commenter, a retired test pilot, who delved into
the tables and models used by the lead agency and its coop-
erators. e errors understated the risk of certain alterna-
tives by several orders of magnitude.8 Had NEPA not made
7. See C R M W, R NEPA’ P-
: C C P I E D-
(2000), and CEQ, T N E P A: A
S I E A T-F Y (1997); see also “e
Role of NEPA Alternatives,” app. A, Oliver Houck, e U.S. House of Rep-
resentatives’ Task Force on NEPA: e Professors Speak, 35 ELR 10911 (Dec.
2005) (list of citizen and non-federally proposed alternatives that produced
superior outcomes).
8. Karl Blankenship, EIS Math Error May Underestimate Risk of Ariakensis In-
troduction: Oyster Gardener Finds Mistake at Others Missed in 1,500-Page
Report, B J. (Mar. 2009), available at http://www.bayjournal.com/article.
cfm?article=3534.
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