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The Legislative Environmental Impact Statement: An Analysis of Public Citizen v. Office of the U.S. Trade Representative

November 1993

Citation: 23 ELR 10653

Issue: 11

Author: Andrew Kimbrell and Joseph Mendelson

At its heart, the National Environmental Policy Act (NEPA)1 is an informational statute. Designed to make Congress and the public the beneficiaries of environmental impact information for all major federal projects, NEPA § 102(2)(C) requires all federal government agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on the environmental impact of the proposed action."2 NEPA's requirement that federal agencies perform environmental impact statements (EISs) before undertaking specific major federal actions has been publicized, analyzed, and enforced relatively thoroughly.3 In contrast, Congress and the executive branch have largely ignored NEPA's mandate that agencies prepare legislative environmental impact statements (LEISs) to help the legislative branch predict, prevent, and analyze environmental impacts of broader, proposed programs. As a result of this indifference, federal agencies usually prepare NEPA documents about legislative programs, if at all, only after initiating them and responding to legal challenges. At that point, Congress may have already committed substantial resources to the programs, limiting the usefulness of environmental impact information.

A recent ruling by the U.S. District Court for the District of Columbia initially transformed the LEIS requirement's moribund status. In Public Citizen v. Office of the U.S. Trade Representative,4 the court issued a declaratory judgment that the Office of the United States Trade Representative (OTR) violated NEPA by failing to prepare a legislative EIS to accompany the completed North American Free Trade Agreement (NAFTA). The decision was promptly overturned by the U.S. Court of Appeals for the District of Columbia Circuit. The decisions have renewed interest in NEPA's role in improving legislation, the use of LEIS deficiency as a cause of action, and the judicial remedies available when agencies fail to perform LEISs. This Dialogue looks at the history of the LEIS requirement, analyzes the Public Citizen decisions, and recommends several steps for revitalizing NEPA's LEIS provisions.

Joseph Mendelson III is an attorney with the Foundation on Economic Trends (FET) and the Greenhouse Crisis Foundation, Washington, D.C. The activities of the FET are centered around the environmental, economic, and ethical concerns raised by the development and commercialization of emerging technologies. Mr. Mendelson received his B.A. from Colgate University (1988) and his J.D. from the George Washington University (1991). Andrew Kimbrell is Policy Director and Counsel for the FET and the Greenhouse Crisis Foundation. Mr. Kimbrell received both his undergraduate and law degrees from New York University. A frequent writer and lecturer on biotechnology, the greenhouse effect, and other questions of science and law, his most recent publication is the book, The Human Body Shop (Harper Collins).

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