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Administering the National Environmental Policy Act

April 2015

Citation: ELR 10287

Author: Jamison E. Colburn

In practice, the Council for Environmental Quality (CEQ) has been treated as the “administering agency” for the National Environmental Policy Act (NEPA), and courts and most action agencies have regarded its rules as binding law. Yet, a close examination of NEPA’s language and evolution reveals that CEQ authority is grounded more in the president’s Article II power than in any statutory delegation from Congress. This executive-branch authority to implement NEPA has garnered strong judicial deference and remained unquestioned despite prevailing doctrine to the opposite effect. The paradox of NEPA also creates an opportunity, as the president’s constitutional authority could likewise be used to put NEPA’s more substantive elements into effect. NEPA’s administration can and should inform a refocused approach by the White House that executes NEPA to its fullest potential: the making of America into a sustainable civilization.

Jamison E. Colburn is Joseph H. Goldstein Faculty Scholar and Professor of Law at Penn State University.

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