NEPA and State NEPAs: Learning From the Past, Foresight for the Future

• Date: 01 July 2009

7-2009 nEwS & anaLYSiS 39 ELR 10675

NEPA and State NEPAs:

Learning From the Past,

Foresight for the Future

by Kenneth S. Weiner

Kenneth S. Weiner is a senior partner in the environmental, land, and natural resources practice at K&L Gates LLP.

He is a principal author of federal NEPA Rules and Washington state SEPA Rules, as well as other environmental

laws. He served as Deputy Executive Director of the White House Council on Environmental Quality and has advised

Democrat and Republican presidents and governors on regulatory reform. In 35 years in the private and public sectors,

no environmental impact assessment in which he had been substantially involved has been found inadequate.

I. Foresight as a Foundation for Security

e National Environmental Policy Act (NEPA)1 has often

been called our nation’s environmental Magna Carta.

NEPA’s structure and language are constitutional in char-

acter. Widely recognized as the world’s rst comprehensive

statement of environmental policy, NEPA became a model

for environmental policy and law around the globe.

NEPA has had as much impact as any environmental stat-

ute in history. With some imagination and daring, NEPA

could help us meet the 21st century challenge to confront

global climate change, restore human and natural ecosys-

tems and species, and build a green economy.

A prime motivation for NEPA was the explicit concern

that economic and social factors were overriding environ-

mental quality in public decisions. In a time of war and

national security priorities (Vietnam, nuclear threats, Cold

War detente with China and Russia), social upheaval (racial

and gender equality and urban neglect), and economic prob-

lems (energy crisis, budget decits, ination, and scarce pub-

lic dollars), the U.S. Congress and ultimately the president

agreed that the deteriorating quality of our environment

could not be relegated to second-class status. e parallels

today to the need for NEPA are striking.

NEPA recognized environmental quality—including the

health of our natural resources and urban communities—as

an integral and interrelated aspect of our social and economic

well-being and national security in the short and long term.

NEPA’s motto to “look before we leap” forcefully articulates

its fundamental focus on foresight needed to address envi-

ronmental challenges domestically and globally.2

1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

2. NEPA expressly recognizes the “worldwide and long-range character of envi-

ronmental problems” and maximizing “international cooperation in anticipat-

Both the U.S. Senate’s and the U.S. House of Representa-

tives’ prime sponsors of NEPA believed that the lasting leg-

acy and biggest impact of NEPA would be the establishment

of the White House Council on Environmental Quality

(CEQ), with a lead environmental advisor to the president.

As experienced Washington insiders in a time of a strong if

not imperial presidency, they understood the power that a

top White House ocial with an adequate sta can have in

shaping policy.3

e CEQ was modeled after the National Security Coun-

cil and its national security adviser and the Council of Eco-

nomic Advisers in the Executive Oce of the President (the

extended White House family, which includes other power-

ful oces such as the Oce of Management and Budget).4

Just as there are multiple Cabinet departments and other

agencies with primary national security roles—such as the

U.S. Departments of State, Defense, Homeland Security,

and the Central Intelligence Agency and other intelligence

agencies—so there are multiple agencies with primary envi-

ronmental and natural resource roles, including the U.S.

Departments of Energy, the Interior, Agriculture, Com-

ing and preventing a decline in the quality of mankind’s world environment.”

42 U.S.C. §4332(2)(F).

3. Sen. Edmund Muskie (D-Me.) even deferred to Sen. Henry “Scoop” Jackson

(D-Wash.) on the prime sponsorship of NEPA in the Senate because Sen.

Muskie was satised with the compromise that he would be the prime sponsor

of the companion measure to NEPA, the Environmental Quality Improve-

ment Act (42 U.S.C., §§4371-4375), providing sta to the Council on Envi-

ronmental Quality (CEQ), which he felt would be the lasting contribution of

NEPA. e legislative history of NEPA in the U.S. House of Representatives

gives even more emphasis to Title II of NEPA and the establishment of the

CEQ and the president’s environmental adviser.

4. Lynton K. Caldwell, Implementing NEPA: A Non-Technical Political Task, in

E P  NEPA, P, P,  F(E. Ray

Clark & Larry W. Cantor eds., 1997). See, e.g., National Security Act of 1947,

50 U.S.C. §§401 et seq., and the Full Employment Act of 1946, 15 U.S.C.

§§1021 et seq. e composition of the Executive Oce of the President is

described at http://www.whitehouse.gov/administration/eop/.