Article in This Issue: "Substantive Rights Under NEPA," by Richard S. Arnold

NEPA watchers who were asked in late 1972 what they thought the chances were that the courts would review agency project decisions on their merits under NEPA's substantive provisions usually gave a pessimistic answer. By February, 1973, however, three (and possibly four) circuit courts appeared to have resolved the issue in favor of such review. In his article, The Substantive Right to Environmental Quality Under the National Environmental Policy Act (3 ELR 50028). Richard Arnold analyzes the cases which brought about this important recent development in NEPA's generally remarkable legal history. As an attorney who has brought several NEPA suits for the Environmental Defense Fund, including the two in which the key Eighth Circuit decisions on substantive review were delivered (the Cossatot River and Cache River cases), Mr. Arnold is especially well equipped to write an important expansion of judicial review under NEPA.

Two short paragraphs from the article summarize the author's intent:

To pose the issue to which this article is addressed in more specific terms, do courts have power, once an agency has carried out all the specific procedural requirements of § 102, to enforce the substantive declaration of §§ 2 and 101 by reviewing agency action and setting it aside if it violates the latter two provisions or some other relevant declaration of environmental policy? If courts do have such power, what is its source, and what is its worth in a democracy?

After a phrase-by-phrase analysis of NEPA's substantive provisions [§§ 2, 101, 102 (1)], the author states the scope of the remainder of his article: Having in mind, then, what Congress and the President said when they enacted NEPA, I turn to the specific inquiries to be pursued here: (1) How have the courts received the words of Congress? (2) Has the courts' treatment of the statute accorded with the generally accepted corpus of administrative law? (3) If the courts should eventually settle upon the view that NEPA does create judicially enforceable substantive rights, would they be trespassing on the proper domain of the political branches of government?

Judicial review of federal decision-making under NEPA may be the logical culmination of the courts' role in seeing that congressional intent is carried out. The courts already review compliance with NEPA's procedural requirements. They have ruled many times on whether, under a particular set of facts, an impact statement has to be prepared, and on whether statements are adequate in scope and detail.The courts have also agreed, relying on Calvert Cliffs' and its progeny, that unreasoned mechanical compliance with procedural duties is not enough; agencies actually have to consider the information which they were required to develop in making their decisions. The next step is a logical one for the courts to take. It involves going beyond these forms of judicial review to review of actual agency decisions on their merits to see if they accord with NEPA's detailed statement of substantive policy.

The bench mark decision in Calvert Cliffs' may have had a great deal to do with this evolution. In that case, the D.C. Circuit gave NEPA its first comprehensive reading. Judge Wright's decision held that an agency had to comply strictly with NEPA's information-gathering and analysis provisions and engage in a "finely tuned and systematic balancing analysis" in which in its final decision it traded off competing environmental, economic, social and technical factors. But the court avoided detailed consideration of what "balancing" really meant. The agencies' obligations, if any, to be specific about how incommensurable costs and benefits were traded off, or how weights were assigned to both quantifiable and nonquantifiable factors, were not discussed. Further, basic agency missions under other statutes set priorities and create conflicts which Calvert Cliffs' did not help resolve. The decision, in other words, left agencies and courts alike in need of a good deal more substantive guidance.

The balancing process, therefore, appears to deliver only half of NEPA's loaf. Calvert Cliffs', rather than serving as the final statement of NEPA's scope and requirements, may actually have the effect of stimulating the courts to probe NEPA's policy statement for more explicit substantive standards. In fairness to Judge Wright, Calvert Cliffs' does suggest the possibility of wider review in dictum.But no court has as yet begun to spell out the "law to apply" that exists in § 101's substantive provisions, although, as Mr. Arnold makes clear, the way is now open for such a development.