Taking Congress' words seriously: towards a sound construction of NEPA's long overlooked interpretation mandate.

• Author: Mintz, Joel A.
• Position: National Environmental Policy Act of 1969

1. INTRODUCTION II. NEPA's INTERPRETATION MANDATE: PLAIN LANGUAGE, LEGISLATIVE HISTORY, AND UNANSWERED QUESTIONS III. WHAT POLICIES DOES NEPA SET FORTH? IV. TO WHOM DOES THE INTERPRETATION MANDATE APPLY? V. WHAT IS MEANT BY "TO THE FULLEST EXTENT POSSIBLE"? VI. HOW NEPA's INTERPRETATION MANDATE MAY APPLY IN ENVIRONMENTAL CASES: NATIONAL ASS'N OF HOME BUILDERS V. DEFENDERS OF WILDLIFE AS AN EXAMPLE VII. CONCLUSION I. INTRODUCTION

   The National Environmental Policy Act of 1969 (NEPA) (1) was one of the first federal environmental enactments of the modern environmental era. Best known for its environmental impact statement (EIS) requirement, (2) and its establishment of the Council on Environmental Quality (CEQ) in the Executive Branch, (3) NEPA has been the basis of numerous lawsuits regarding federal governmental projects that will or may have an adverse impact on the human environment. (4) Despite that fact, however, and notwithstanding the significance of the statute as a catalyst to the study and analysis of environmental trends and the environmental consequences of major federal actions, some of NEPA's provisions have been persistently overlooked by the federal courts and the attorneys who appear before them.

   This Article focuses on one such provision: subsection 102(1). (5) Surprisingly (at least to this author), in the thirty-nine years since NEPA's enactment, that brief subsection has been directly applied only six times in judicial opinions. (6)

   In Part II of this Article, I will discuss the plain language of NEPA subsection 102(1) and its pithy (and unenlightening) legislative history, and I will identify several important questions that the provision appears to raise. In the following three Parts I will consider each of those questions in more detail, taking account of the (minimal)judicial construction thus far given to subsection 102(1). Those three portions of this Article examine in turn what policies are "set forth" in the statute as a guidepost for regulatory and statutory interpretations, to whom the NEPA interpretation provision applies, and what is meant by the statutory phrase "to the fullest extent possible." Finally, drawing for illustration on the United States Supreme Court's decision in National Ass'n of Home Builders v. Defenders of Wildlife (7)--a recently decided environmental case in which subsection 102(1) played no part--I will examine how NEPA's interpretation requirement can and may be applied in future disputes where federal judges are called upon to explain (and harmonize) the meaning of environmental legislation.

2. NEPA's INTERPRETATION MANDATE: PLAIN LANGUAGE, LEGISLATIVE HISTORY, AND UNANSWERED QUESTIONS

   The interpretation provision of NEPA is notable for its brevity. Subsection 102(1) simply states that "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter." (8)

   On a careful reading of this sentence, several of its aspects are immediately apparent. First, the subsection is unmistakably mandatory. In clear terms, Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA's policies, it has required that to occur. The subsection employs the verb "shall," as opposed to "may" to describe what must occur, traditionally an indication of an intended command as opposed to a mere aspiration. (9) The first sentence of section 102 also indicates that Congress both "authorizes and directs" that the sort of legal interpretation and administration that the provision mentions must take place. (10) That phraseology provides a further unambiguous indication that what Congress refers to in the provision is nondiscretionary.

   Second, the subsection makes plain that what is to be construed and administered in accordance with NEPA's policies are "the policies, regulations, and public laws of the United States." (11) This set of laws is referred to without any term of qualification. Thus, at a minimum, subsection 102(1) directs that the nation's environmental laws--certainly including but by no means limited to NEPA itself--must be administered and interpreted in the fashion indicated in the provision. These laws are, after all, unquestionably public laws. Notably, however, the language of subsection 102(1) is not limited in its applicability to federal environmental policies, regulations, and enactments. By its terms, the subsection appears to encompass, without limitation, all federal legal authorities that may be described as policies, regulations, or public laws.

   Third, NEPA's interpretation mandate plainly directs that the required legal interpretation and administration it refers to must take place "to the fullest extent possible." (12) I will further consider the ways courts have thus far construed that phrase--mostly in the context of another NEPA provision, subsection 102(2)--shortly. Nonetheless, even a cursory reading of that phrase makes it evident that in subsection 102(1) Congress was requiring a wholehearted and vigorous application of the policies set forth in NEPA. Partial and/or conditional implementation of NEPA's policies, or a failure or refusal to apply them to some particular subset of national policies, regulations, or public laws, seems far less than the statute demands.

   Notwithstanding these self-explanatory features, however, the plain language of subsection 102(1) standing alone leaves certain questions unresolved. It is unclear from the provision itself precisely which policies "set forth in this chapter" are to provide the basis for interpreting and administering federal policies, regulations, and public laws. Moreover, NEPA's interpretation directive does not indicate, at least in so many words, to whom the provision applies. Finally, the phrase "to the fullest extent possible" is not squarely defined, either in subsection 102(1) or elsewhere in the statute.

   The legislative history of NEPA sheds little light on these questions. Like the interpretation requirement of NEPA itself, the legislative history is pithy. AS Professor Daniel R. Mandelker observes, "NEPA's legislative history provides some but only limited guidance on the meaning of the statute.... The legislative history of the statute is important more for what is omitted than what is included in the way of explanation." (13) Mandelker's observation appears particularly apt with respect to subsection 102(1).

   In fact, the only reference to section 102 in NEPA's legislative history may be found in the report of the conference committee on the bill that was later enacted. (14) That conference report makes no specific mention of subsection 102(1). It refers instead to section 102 in its entirety, a section including NEPA's EIS requirement along with the statute's interpretation provision. The report's comments seem mostly to pertain to the EIS portion of section 102:

   The purpose of [section 102] is to make it clear that each agency of the Federal Government shall comply with the directives set out in sub-paragraphs (A) through (H) unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However as to other activities of that agency, compliance is required.... [T]he language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section "to the fullest extent possible" under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance. (15) As several commentators have explained, the conference committee version of NEPA reflected a House-Senate compromise, in which the House conferees agreed to drop a House-passed amendment that would have limited the impact of NEPA's EIS requirement on federal agencies. (16) The deleted language would have provided that "nothing in this Act shall increase, decrease, or change any responsibility or authority of any Federal official or agency." (17)

   Conceivably, it might be argued that the language of the NEPA conference report reflects a consensus among the conferees that NEPA's interpretation mandate applies only to federal agencies. Such a reading of the conference report, however, appears strained and incorrect. Although NEPA's sponsors were undoubtedly concerned with the possibility that federal agencies would attempt to avoid NEPA's action-forcing requirements, absolutely nothing in the statute's legislative history indicates that subsection 102(1) was not also intended to apply to any other federal governmental entity that is charged with the interpretation of federal law. In particular, as I will discuss forthwith, the statute's text and the judicial interpretations rendered thus far support the conclusion that the provision squarely applies to the federal judiciary as well as to federal agencies and departments. (18)

3. WHAT POLICIES DOES NEPA SET FORTH?

   Although subsection 102(1) does not itself define the "policies set forth in the chapter" to which the interpretation mandate applies, it seems plain that those policies were fully expressed in sections 2 and 101 of NEPA, the portions of the statute to which that phrase obviously refers.

   Section 2 provides:

   The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to...