The Substantive Right to Environmental Quality Under the National Environmental Policy Act
The proliferating field of environmental law presents a timely example of the always fascinating interplay of law and fact, of science and jurisprudence. It also tests the vitality of many traditional notions of the functions of courts in a republic, the relative distribution of power among appointed judges, the people's elected representatives in Congress, and administrative officials who in most instances are neither elected nor directly chosen by anyone who has been elected. In particular, what is the role of the courts in protecting "the environment," that nebulous concept that seems at times to be all things to all men, and that bids fair to encompass the whole world? Do judges appointed for life and deliberately removed from popular correction have any role to play in this respect, or are the hard social and economic questions to be addressed solely by the Congress and its delegates? An approach to answering these questions should illuminate not only the conjunction of law and science, but also the usefulness of non-elected officials in helping a democratic society choose and reach its goals.1 In this article I shall venture to suggest some answers, using as a framework the varying attitudes of the courts towards the enforcement of our nation's most widely applicable expression of environmental policy, the National Environmental Policy Act,2 which became law on January 1, 1970. The statute declares policy in broad terms and imposes procedural requirements on federal agencies in rather specific terms. It is my purpose in this Article to determine whether courts, having once ensured that the procedures commanded by Congress have been scrupulously observed, have any further duty to perform. In other words, does NEPA create any substantive rights enforceable in the courts?
The inquiry must begin with the words of the statute. As already noted, NEPA basically does two things: it declares national policy, and it imposes certain enumerated procedures.3 The statute is not a model of brevity, but the pertinent sections must be set out in extenso. Section 2, 42 U.S.C. §4321, reads: