Thoughts on NEPA at 40

• Date: 01 July 2009

39 ELR 10640 EnviRonmEntaL Law REpoRtER 7-2009

Thoughts on NEPA at 40

by Daniel R. Mandelker

Daniel R. Mandelker is Stamper Professor of Law, Washington University in St. Louis.

The 40th anniversary of the National Environmental

Policy Act’s (NEPA’s)1 birth calls forth images of a

statute, perhaps framed in innocence, that has pro-

found eects on decisionmaking by federal agencies. ough

the legislative history is unclear, there is a strong suggestion

that the U.S. Congress believed they were enacting a law that

would allow agencies to write their own compliance ticket.

is changed with a landmark case soon a fter NEPA was

adopted that made the statute enforceable in federal courts.

With that decision, the playing eld changed and the statute

became enforceable in court.

NEPA now is a major environmental statute that requires

a freewheeling and extensive analysis of the environmen-

tal impacts of agenc y actions and programs. If the agency

makes a mista ke by failing to prepare a n impact statement

when it should, or if the impact statement it prepares is

inadequate, it must start over, often at great cost. Because

NEPA compliance has become such a major issue, it is use-

ful to exami ne how the statute works and some of the prob-

lems it has created.

I. The Whole and the Parts

NEPA cases are a glory for the lawyer. Issues abound, because

case law and Council on Environmental Quality regulations

create a host of requirements that NEPA compliance must

satisfy. A n impact statement on a major new highway, for

example, gets dissected for compliance with NEPA require-

ments, such as whether all available alternatives and cumu-

lative impacts are identied and adequately considered and

whether environmental eects created by the highway are

properly described. NEPA litigation can become a n endgame

in which each party looks for weaknesses in the other side’s

defenses that it can exploit in order to succeed in the litiga-

tion. Each issue has its own importance, but the question is

whether the breakdown of a case into its many parts allows a

court to consider an action or project in a comprehensive way

that identies the major issues it presents.

e answer to this question is contingent. A NEPA case

can be sliced so thin that a synoptic view of the problems it

presents does not emerge. In other cases, some of the issues

litigated are so critical that they decide t he environmental

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

importance of the action or project under review. An agency

may have so neglected its a nalysis of alternatives, for exa m-

ple, that the correction of this problem becomes the major

issue. Still, some amendment to regulations or some change

in judicial review of agency decisions to require a compre-

hensive review of agency actions would provide a more use-

ful examination and balancing of environmental issues. is

kind of review could produce an overall evaluation that

includes a balancing of issues and priorities.

II. The Mission Agency Syndrome

One of the guiding concerns t hat led to the adoption of

NEPA was the need to correct the sometimes myopic vision

of federal mission agencies. A mission agency is an agency

that has a limited statutory purpose dened to exclude or not

require the consideration of environmental values. is was

certainly the case at the time Congress adopted NEPA. A

classic example was the provision in the federal highway law

that required highway agencies to select the shortest route

between two points. No matter that the highway tore up an

attractive park or damaged a n important historic site. C on-

gress adopted a law just before NEPA to stop these insults

in highway and transportation projects, and NEPA was

intended to accomplish the same purpose on a broader scale

by making environmental values part of al l agency decision-

making. As one court put it, an agency must comply with its

own statute, but it must also comply with NEPA.

e question is how successfu l this restraint of mission

agencies has been, and whether this NEPA goal needs to

be restated in a dierent administrative age. In the judicial

arena, courts will and do intervene to correct limited agency

decisionmaking. ey are often prevented in doing so by

the restraints that exist on judicial review, but judicial rejec-

tion of agency decisions does occur. A related issue is how

agencies have responded to NEPA’s mandate by improving

their consideration of environmental values.  is question

has been fairly extensively researched and ha s brought forth

mixed answers. Studies suggest a modest inuence, not only

on agency decisions but on the process through which they

are made and the type of personnel brought in to help make

them. e addition of environmental specialists is an impor-

tant outcome.