Toward a Better NEPA Process for Decisionmakers

• Date: 01 July 2009

39 ELR 10656 EnviRonmEntaL Law REpoRtER 7-2009

Toward a Better NEPA Process

for Decisionmakers

by Edward A. Boling

Edward A. Boling has served as Council on Environmental Quality (CEQ) General Counsel (2008-2009) and Deputy General

Counsel (2000-2007). e views expressed here are his own and do not necessarily reect the view or policies of the CEQ.

e primary means of translating NEPA’s policy into

action is through environmental impact assessment, based

upon alternative analysis and interagency coordination, for

decisions regarding federal agency actions that may signi-

cantly aect the quality of the human environment.5 Such

major federal actions typically involve important decisions

with broad ramications for the economy, society, and

agency policy. Agency NEPA processes and decision-specic

environmental documents thus provide a substantial oppor-

tunity to manage and direct an agency based on a framework

for collaboration among federal agencies and those who will

bear the environmental, social, and economic impacts of

their decisions.

Ultimately, successful NEPA implementation depends on

its use by decisionmakers who value analytical rigor, the pub-

lic evaluation of signicant environmental impacts, and use

NEPA to structure the management of agency commitments

and future decisions. NEPA needs decisionmakers who need

its information, who value its public process for validat-

ing this information, and who are in a position to demand

more analysis, higher quality, and more timely information

from agency environmental programs. In its 25-year study

of NEPA’s eectiveness, the Council on Environmental

Quality (CEQ) found that NEPA’s requirements to consider

alternatives and involve the public and other agencies with

expertise make it easier to discourage poor proposals, reduce

the amount of documentation during implementation, and

support innovation.6However, the success of any NEPA

process depends on whether the lead agency has systemati-

cally involved those who will be most aected by a proposal,

gathered their ideas, and used their input to modify or add

reasonable alternatives for decisionmaking.

5. NEPA §102(2)(C); cf. NEPA §102(2)(E).

6. NEPA E S, supra note , at 12.

Some extraordinary government ocials have used

the implementation of the National Environmental

Policy Act (NEPA)1 as a national charter to struc-

ture decisions that promote sustainable development and

agency governance for protection of the environment.2 ey

appreciated that NEPA establishes policy, sets goals (§101),

and provides means (§102) and authority (§105) for carry-

ing out the policy. e testimony of Adm. James Watkins,

while Secretary of the U.S. Department of Energy, is illus-

trative: “thank God for NEPA because there were so many

pressures to make a selection for a technology that might

have been forced upon us and that would have been wrong

for the country. ...”3 Admiral Watkins and his successor,

Hazel O’Leary, used reform of the NEPA process to move

that department toward a more transparent problem-solving

approach to decisionmaking.

Most recently, in the A merican Recovery and Reinvest-

ment Act,4 the U.S. Congress rearmed NEPA’s utility in

public decisionmaking, nding that:

(1) NEPA protects public health, safety, and environmen-

tal quality by ensuring transparency, accountability,

and public involvement in federal actions and in the

use of public funds;

(2) NEPA provides “direction” for the country to “regain

a productive harmony between man and nature”; and

(3) NEPA helps to provide an orderly process for consider-

ing federal actions and funding decisions and prevents

litigation and delay.

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

2. e U.S. Congress, the president, the federal agencies, the federal courts, and

the public share responsibility for implementing NEPA so as to achieve the

requirements of §101. Section 102(2) contains “action forcing” provisions that

provide authority and mandates to translate policy into action.

3. C  E Q, T N E

P A: A S  I E A T-F Y 13

(1997) (quoting House Armed Services Committee testimony, 1992), avail-

able at http://www.nepa.gov/nepa/nepa25fn.pdf [hereinafter NEPA E-

 S].

4. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5,

§1609(a), 123 Stat. §116.