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NEPA’s Trajectory: Our Waning Environmental Charter From Nixon to Trump?

May 2020

Citation: 50 ELR 10398

Issue: 5

Author: Sam Kalen

Heralded in 1970 as the nation’s environmental Magna Carta, the National Environmental Policy Act’s (NEPA’s) luster seems faded and its future uncertain. While Trump Administration initiatives threaten to diminish further and perhaps even dismantle aspects of NEPA, this Article chronicles how the current assault merely continues NEPA’s unfortunate trajectory, examining how the courts, the U.S. Congress, and the executive branch each have whittled away at the Act. NEPA consequently sits at a critical juncture: it could soon fade away or it could hew back toward its original promise. The Article urges the latter path, and proposes two atypical and one oft-recommended changes. First, the Council on Environmental Quality (CEQ) ought to be charged with authority to oversee the development of environmental documents. Next, CEQ ought to require that agencies engage in balancing environmental harms against the benefits of a proposed action. Finally, the NEPA process should better incorporate the post-decision ability to monitor and adapt as new information and effects are understood.

Sam Kalen is Centennial Distinguished Professor of Law, University of Wyoming College of Law. 

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