The National Environmental Policy Act (NEPA) is a declaration of national policy intent, reflecting a reorientation of priorities to accord with changing environmental values and perceptions. It does not amend the Constitution; it is not a regulation; and it cannot compel the President to administer its principles and provisions in any particular way: Nor can it cause the Congress to activate more fully its potentialities through supplementary legislation and more generous funding.

But although NEPA cannot mandate the policy it declares, it has nevertheless changed public life in four important respects. First, through its declaratory provisions and annual environmental report, it has kept the environmental issue before the American people, the Congress, and the President; second, through the environmental impact statement requirement and associated stipulations regarding program planning, it has altered the decision process in the federal agencies; third, in association with the Freedom of Information Act, it has forced public disclosure of that process and opened the way to public participation in it; and fourth, it has provided a model that has influenced environmental policy legislation among the several states and in a number of nations abroad.²

There has been general agreement that the Act has been effective, but not all critics have subscribed to the same criterion of effectiveness. From the viewpoint of tradition-minded engineers, fiscal officers, lawyers, and mission-directed administrators, NEPA has been effective in generating costly delays, mountains of paper work, and irresponsible interference in agency business. Ecologically-oriented citizens, on the other hand, have seen the Act as a Magna Carta of environmental protection and a cornerstone of a new era in the responsible exercise of public power.³ But many people confuse NEPA with regulatory legislation for clean air, water quality, pesticides, and the management of solid waste. NEPA has been blamed, by some critics who should know better, for regulations administered by the Environmental Protection Agency. In the minds of many people, EPA and NEPA seem thoroughly confused. In fact, the direct impact of NEPA is felt only by the federal administrative agencies, although its indirect effects ramify widely throughout the national economy.

There is more than one way to evaluate the effectiveness of NEPA, but no evaluation can be adequate that does not measure the accomplishments of the Act in relation to its purpose. The legislative history of NEPA makes this purpose clear; the documentary record is comprehensive and explicit. The Act should be read as a redirecting of national priorities, with particular reference to the responsibilities of the national government. NEPA has offended the technical predilections of some bill drafters and legalists, but the Act was not intended to accommodate conventional licensing and regulatory procedures. It was not intended to draw nice distinctions between agency discretion and the public concern for the environment. It was intended to modify fundamentally the basis of Executive decision making on matters affecting the quality of the environment; legal technicalities of agency procedure were to accommodate its policy objectives — not vice versa.

The drafters of the Act knew that the agencies wouldnot willingly alter their established policies and programs, nor voluntarily take measures to comply with the intent of the Act. Action-forcing provisions were necessary if the new priorities set forth in the Act were to be realized in practice. Enactment of this law, unwanted by the Executive Branch and familiar to the public generally, was the achievement of an initial victory in a larger struggle to reorder national priorities. How enduring and how significant this victory may prove to be belongs to the subject-matter of future history.

[6 ELR 50031]

Criteria for Evaluation

To judge the merits of legislation solely by what has been accomplished under its administration may be logical, but also may be misleading. This risk is present when agencies responsible for the administration of a law fail, by indifference or intent, to utilize fully its potential. The possibility of erroneous conclusions also occurs when the administration of a law for whatever reason, is imbalanced in relation to its substance and intended application. And time may be a significant factor. Policy guiding legislation such as NEPA cannot be both fully and promptly implemented. As much as a decade may be required to assess adequately the full effects of such acts.

All of these factors must be taken into account in any adequate review of NEPA. The potentialities of the Act exceed its applications thus far and attention has been focused on its principal action-forcing provision, the five-point environmental impact statement, to the relative neglect of other important policy directives. The ultimate effectiveness of the Act has been threatened by underemphasis on its intended ends and over-emphasis on one of several means to those ends. This is not to say that the ends of NEPA are being sacrificed to its means. The educative, procedure-reforming, and action-forcing values of the § 102 impact statement greatly overweigh the alleged misuse and abuse of this innovative provision. But to understand and appreciate the significance of NEPA, the statute must be viewed in its entirety as a coherent and operational statement of public policy intent.

NEPA undertakes to do three things, each of which is clearly delineated in the text of the legislation. First, the Act declares a national policy for the environment. Second, it directs the agencies of the federal government as to how this policy is to be put into practice and provides procedures for making its directives enforceable. Third, it established institutional arrangements in the Council on Environmental Quality Report for reviewing the extent to which its objectives are being accomplished.

The statement of policy intent in § 101 and the public disclosure and participation provisions of § 102 form a coherent piece of legislation, mutually reinforcing and intended to enlarge the opportunities of the American people in determining the kinds of environments available to them in the future. The argument that NEPA is vague and loosely drawn reflects misunderstanding of its purpose. The criticism is legalistic, based apparently on belief that the Act is regulatory. But the procedural aspects of the Act neither require nor lend themselves to precision except in relation to the review of draft environmental impact statements. Detailed implementation of the Act was intentionally left to administrative initiative, because it was administrative performance that the Act was intended to reform.

In the hands of an administration determined and able to achieve a high-quality environment for all Americans within the ascertainable future, NEPA could be a powerful instrument. In fact, the commitment of the Executive Branch and the independent agencies to the stated objectives of the Act has been ambivalent. Nor has the Congress been free from inconsistency; it has never jettisoned the "pork barrel" in the interest of environmental quality or of long-range economic good sense. Achievements under the Act owe as much to judicial enforcement as to administrative initiative, or to the integrity of the Congress in honoring its own declared principles.

The Interrelated Provisions of the Act

The declaratory provisions of the Act are found in the section entitled "Preface" and under Title I, § 101, "Declaration of National Environmental Policy." These provisions are intended to make explicit the objectives of a national policy for the environment. They are necessarily general in character, and no more detailed than would be wise for long-range guidelines to policy. For example, § 101 declares that

… it is the responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —

1. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

2. Assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

3. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

4. Preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

5. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

6. Enhance the quality of renewable resources and approach maximum attainable recycling of depletable resources.⁴

This set of objectives is, of course, qualified by the phrase "… consistent with other essential considerations of national policy…." The President and the federal agencies are not instructed where to place environmental objectives on a scale of national priorities. And yet the six points, and the declaration generally, afford minimal guidelines for national action. They specifically require the inclusion of environmental quality in the priorities of the federal agencies and make actions to realize these priorities a federal responsibility. All other sections of the Act are intended to implement the Declaration. This conceptual interrelating of the sections of NEPA should be recognized in any practical interpretation of its intent. The point is of special importance in judicial construction of § 102(2)(C), the environmental impact statement, in its relationship to the preceding sections of the Act and all paragraphs of § 102. The extent to which the courts will look beyond the formalities of the impact statement to the substance of the action that it was intended to force appears as yet to be unsettled.⁵ But unless judicial construction links procedure [6 ELR 50032] to purpose, there is danger that the Act might, in effect, become largely procedural and this would be manifestly contrary to congressional intent.

In the leading case of Calvert Cliffs' Coordinating Committee v. AEC, Judge J. Skelly Wright of the United States Court of Appeals, District of Columgia Circuit, stated what appears to be the prevailing judicial view of the relation between §§ 101 and 102 of NEPA. He said:

We conclude, then, that Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors — conducted fully and in good faith — it is the responsibility of the courts to reverse.⁶

In interpreting the judicial role with respect to NEPA, Judge Wright declared that: "Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy."

Action-Forcing Provisions

Sections 102 and 103 are instructions to federal agencies as to how the congressional intent is to be realized through administrative action. For reasons presently to be considered, attention has been focused inordinately upon § 102(2)(C), the five-point environmental impact statement requirement. This provision is perhaps the most innovative, and certainly the most controversial, feature of the Act. Because of my role in the development of the concepts embodied in the Act, and especially in relation to its action-forcing provisions, a personal comment may be appropriate at this point.

A. Background of the Action-Forcing Concept

Contrary to some journalistic conjecture, the action-forcing provisions were not added to the NEPA as a last-minute afterthought. The need for language to make the Act operational was recognized early in the drafting stage.

Upwards of 40 distinct bills and resolutions were introduced into the 91st Congress to declare a national policy for the environment and/or to establish a body to study the environmental problems of man.⁷ None of these proposals, however, were operational in the sense that they provided means to implement or enforce their statements of principle. During 1968 and 1969, as consultant to the Senate Interior Committee and briefly to the Citizens Committee on Recreation and Natural Beauty, I urged the development of a strategy to make a national environmental policy operational. S. 1075, sponsored by Senator Henry M. Jackson, had taken the lead among the competition and ultimately became the National Environmental Policy Act of 1969, and there was general agreement between the Interior Committee staff and the Senator that S. 1075 should be operational — should differ in its enforceable quality from the other bills that were merely declaratory.

As early as November 1969, I stated the rationale for action-forcing legislation in an unpublished report to the Citizens Advisory Committee on Recreation and Natural Beauty. Following are pertinent excerpts from this document:

… a mere hortatory statement of intent would very likely remain inoperative. It could be ignored with impunity and would thus be open to ridicule, comtempt, or relegation to political oblivion. A policy statement without provision for its execution could be supported by persons hostile or indifferent to its purpose as a means of forestalling any practical consequences.

During the ensuing months, the staff of the Senate Committee on Interior and Insular Affairs, with which I was associated, developed the language which was to become § 102(2)(C) and which I recommended in principle to the Committee at a hearing on the Bill (S. 1075) on April 16, 1969.

Following are the more pertinent portions of these remarks.

[A] statement of policy by the Congress should at least consider measures to require the Federal agencies, in submitting proposals, to contain within the proposals an evaluation of the effect of these proposals upon the state of the environment, that in the licensing procedures of the various agencies such as the Atomic Energy Commission or the Federal Power Commission or the Federal Aviation Agency there should also be, to the extent that there may not now exist fully or adequately, certain requirements with respect to environmental protection, that the Bureau of the Budget should be authorized and directed to particularly scrutinize administrative action and planning with respect to the impact of legislative proposals, and particularly public works proposals on the environment.

Now, these are what I mean by action-forcing or operational measures. It would not be enough, it seems to me when we speak of policy, to think that a mere statement of desirable outcomes would be sufficient to give us the foundation that we need for a vigorous program of what I would call national defense against environmental degradation. We need something that is firm, clear, and operational.⁸

B. The Section 102(2)(C)⁹ Impact Statement

The anxiety and resentment in some federal agencies over the 102 statement requirement has led to a number of unfortunate misconstructions inside and outside of the agencies. Two are especially important. The first error, already noted, is that NEPA is primarily a procedural statute rather than a fundamental reconstruction of national priorities. The second is the opinion that the impact statement is a costly capricious burden upon the normal business of government rather than the logical outcome of program analysis, planning, and choice in federal agencies pursuant to the declaration of national environmental policy.

[6 ELR 50033]

Complaints about the costs, delays, and uncertainties of 102 impact statement procedures are not fairly leveled against the Act. They are largely consequences of three interacting factors: the unwillingness of the agencies to modify and redirect their missions in accordance with the preceding sections of the Act; the tendency of lawyers to emphasize procedure over policy; and reluctance of the Executive through the Office of Management and Budget, or by other means, to "persuade" the agencies to take seriously the declaration of policy and guidelines for program planning stated broadly in the preceding sections of the Act and made more explicit through guidelines and other published statements of the Council on Environmental Quality.

It was not the intention of the drafters of NEPA to impose an unreasonable burden of paper work upon the agencies and the Act does not do so The impact statement was required to force the agencies to take the substantive provisions of the Act seriously, and to consider the environmental policy directives of the Congress in the formulation of agency plans and procedures. To the extent that agencies have built the criteria specified in § 101 into their assumptions and policies and have utilized the planning procedures indicated in § 102(2)(A) and (b), the impact statement need be no more than a summary of agency action. Acknowledging exceptions, it may be generalized that impact statements of great length and detail indicate programs or projects of dubious environmental merit.

Although exceptional cases may be distinguished, the primary cause of the alleged burden of the 102 statement is the attempt of agencies to manipulate the requirement so as to justify procedurally projects substantively inconsistent with the purpose of the Act. Costly, detailed, and voluminous compendia of ecological data have often been offered as presumptive evidence of agency compliance with the intent of the law, and with the hope that the depth and opacity of the "snow bank" of paper will conceal the same old agency terrain beneath. Instances may be cited, e.g., the Corps of Engineers's Bie Pine Lake Project in Indiana,¹⁰ in which the environmental impact statement in effect refuted the cost-benefit analysis of the project. But the tendency of the agencies is to push ahead with minimal regard for the consistency of the project with the substantive criteria stated in § 101 of NEPA.

Agencies have, however, made some progress. Observers of 102 statement procedures claim that increased interdepartmental communication has prompted cooperative interagency action in planning, and that agency planners are developing a greater awareness of environmental factors and greater sophistication in building ecological consideration into agency thinking. The effect of NEPA on the environmental conscience of agency personnel, especially of younger staff members, appears to have been positive and reinforcing. Differences in values and perceptions may be found in even the most mission-directed federal agencies … none are "monolithic." The necessities of the 102 procedures provide opportunity for agency personnel who are sympathetic to the purpose of NEPA to tip agency policy a little further toward that direction than might otherwise have been possible.

Nevertheless, it is obviously easier to build NEPA criteria into new programs and projects than to graft them onto congressional authorizations pre-dating NEPA. The Congress could alleviate agency dilemmas over environmentally-destructive projects by reexamining all pre-1970 authorizations, or de-authorizing all that appeared to have dubious environmental consequences. Yet, in fact, the nation is today ostensibly committed to a costly budget of public works voted by past Congresses and inspired by values and expectations no longer dominant in American society. The stubborn refusal of the federal government, and most states to apply well-established lessons of science and experience to the management of flood plains, strip-mined lands, and fragile and unstable ecosystems should be viewed as scandalous.

Commitment to assumptions and expectations that are now demonstrably erroneous is evidenced by the intransigency of the more conventional agency personnel and perhaps even by collusion among agencies in frustrating the meddling of "environmentalists." A large number of cases before and after the enactment of NEPA are on record in which top agency officials, in effect, "conspired" with representatives of private economic interests to sacrifice environmental values which the Congress in the substantive sections of NEPA had directed them to protect. The tourist tower at Gettysburg Battlefield, negotiated behind closed doors in the Department of the Interior and concealed from local representatives of the National Park Service, is a flagrant example of all too frequent dereliction of public trust and violation of congressional intent.¹¹ More common, perhaps, is a conventional reluctance of one federal agency to criticize another agency's plans or projects. Some analyses of impact statements have indicated that mutual forebearance has on occasion degenerated into interagency "backscratching" to the derogation of the public interest in the quality of the environment.

These responses to NEPA confirm the realistic assumptions of its drafters as to the readiness of the agencies to comply with its expressed intent. It was assumed that rather than to reorder their priorities, the agencies would employ 102 procedures to protect their missions, programs, and projects from modification on behalf of environmental quality. By overconforming to procedural requirements, they might hope to escape reversals in the courts. There could be no certainty as to the willingness of the Executive to enforce compliance with the spirit of the Act. An alternative to Executive enforcement was therefore provided in opening the decision processes of the agencies on environmental issues to public scrutiny by reference to the Freedom of Information Act.¹²

The effectiveness of this provision was greatly enhanced by related and parallel developments — the [6 ELR 50034] rapid rise of public interest law suits, the modification of traditional rules regarding standing-to-sue, and the judicial interpretation of the 102 impact statement to impose more than a merely procedural requirement. The subject matter of public interest lawsuits extends beyond environmental policy,¹³ including a broad range of consumer, civil rights, and honesty-in-government issues. It includes the somewhat uncertain interpretation of the right-to-sue under the provision of the Administrative Procedure Act,¹⁴ that a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review. The practical availability of this provision also depends upon the funding of citizen-initiated public interest lawsuits. This issue is beyond the scope of this paper, but its future could have serious implications for the enforcement of NEPA.

The Neglected § 103 Statement

The traditional response of many federal administrators to complaints regarding the environmental impact of agency actions has been to place the blame on Congress. The damming, dredging, draining, irrigating, airport-building, highway-building, clear-cutting, predator-poisoning, pesticide-spraying activities of government have been defended as mandated by the Congress. In these and other actions with potentially adverse environmental impacts, the agency defense has been that "We're just doing what Congress told us to do." But there have been 94 Congresses since the Constitution was adopted. Some agencies are acting under mandates laid down by Congressmen long departed. For example, a congressional mandate of 1872¹⁵ has, for more than a century, in effect given the exploration and exploitation of minerals a position preminent over most social and environmental considerations. Accordingly, § 103 of NEPA required all federal agencies to "… review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act."¹⁶

Section 103 required all agencies to propose to the President "… such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes and procedures set forth in this Act." Unfortunately because the agencies were required by law to report to the President by July 1, 1971 (the actual date was qualified by administrative action) this section has been assumed to have a one-time applicability. As might have been expected, few agencies found anything in their statutory authority, regulations, or policies that they would propose to change. As a corrective, § 103 appeared to be ineffectual, but it could embarass agency attempts to avoid compliance with NEPA on grounds of conflicting mandates. It seems probable that the conflicting authority argument could be successfully invoked only if the compatible agency mandate were accorded a higher priority than the environmental considerations involved. Agency logic would be to argue that the "other essentiall considerations of national policy" in § 101 would justify any incompatibility between their missions and NEPA.

Administrative Implementation

Title I establishes policies and procedures; Title II provides institutional implementation through the President's Annual Environmental Quality Report and the Council on Environmental Quality (CEQ). The report is in fact prepared by the CEQ. The power and duties of the CEQ are specified in eight paragraphs, some of which, if backed by the President and supported by adequate funds, could be powerful tools of policy. Their exercise might, however, arouse displeasure in the Congress and in the mission-oriented agencies affected.

For example, § 204, paragraph (3) declares it the duty and function of CEQ "… to review and appraise the various programs and activities of the Federal Government determining the extent to which such programs and activities are contributing to the achievement of such policy, and to make recommendations to the President with respect thereto…."¹⁷ Obviously, the extent to which this provision is implemented is a matter of political judgment and discretion as well as of material facts. How far the CEQ can effectively move toward implementing this provision is difficult to say. Much depends upon the commitment of the President to the objectives of NEPA in relation to other priorities.

Closely related is paragraph (4) authorizing the CEQ "… to develop and recommend to the President national policies to foster and promote the improvement of environmental quality to meet the conservation, social, economic, health, and other requirements and goals of the Nation…" Here again, the effectiveness of the CEQ depends very largely upon the interest and receptivity of the President. The Council has made recommendations that, on a few occasions, have gone beyond policy preferences in "the White House." The President's fiscal program has also been an ever-present constraint.

Paragraphs (5) and (6) are vestigial provisions from the Gaylord Nelson Ecological Survey and Research Bill from which NEPA in part developed. Under (5), the CEQ is authorized "… to conduct investigations, studies, surveys, research and analyses relating to ecological systems and environmental quality." Paragraph (6) provides authority "… to document and define changes in the natural environment … and to accumulate necessary data and other information for a continuing analysis of these changes or trends and an interpretation of their underlying causes." When these provisions are supplemented by § 205(2) directing the [6 ELR 50035] CEQ "… to utilize to the fullest extent possible, the services, facilities, and information … of public and private agencies and organizations and individuals …,"¹⁸ it seems clear that by law the CEQ could become a major institution for the stimulating, funding, and coordinating of ecological and environmental research. However, under Reorganization Plan No. 3 of 1970, President Richard Nixon transferred the implementation for much of § 204(5) as applied to research on ecological systems to the newly established Environmental Protection Agency.¹⁹

Full implementation of Title II would be at least in theory, technically less dependent on the priorities and preferences of the President than are most functions of most other agencies within the Executive Office. They are statutory duties, and the Congress could fund the Council to carry them out at any level upon which the Congress and the President might agree. Conceivably, the CEQ could administer a multibillion dollar effort in ecological research and environmental monitoring and data gathering. The MIT Club of Rome Study on The Limits to Growth could have, under the rationale of § 204, been sponsored and funded by the CEQ. But there are, in practice, political difficulties in an agency in the Executive Office becoming a major source of funding for scientific research and development. In neither the Nixon or Ford Administration has environmental quality received a high priority relative to other issues, and the CEQ as an executive agency is expected to conform to the President's value preferences. Should the CEQ have been made jointly responsible to the President and the Congess? This relationship was proposed during the drafting of the Act, but never seriously considered.

There are good arguments for and against the decision to place the CEQ in the Executive Office. Some theorists, including evidently some associated with President Nixon's Advisory Council on Executive Reorganization [Ash Council], have argued that "live" functions are inconsistent with the staff or advisory role proper to agencies within the Executive Office of the President.²⁰ But this argument would hardly hold against the statutory functions of the CEQ if compared with the de facto line operations of the Office of Management and Budget. The more plausible arguments against administering research through the CEQ are political.

It may also be argued that implementation of these provisions is now unnecessary because the functions are being performed by other organizations such as the Environmental Protection Agency, the National Science Foundation, the National Oceanic and Atmospheric Administration, and the National Institutes of Health. But, in relation to the need, funding for environmental research has not been given high priority. Most of the available money, largely administered through the Environmental Protection Agency, appears to have been allocated to specialized and technical problems largely relating to environmental pollution. Policy-oriented, synthesizing studies receive little encouragement from any source. The proposal, endorsed by President Nixon in 1971, to create a government-sponsored but independent institute of environmental policy studies with assistance from the CEQ and the National Science Foundation was one possible answer to the charges given to the CEQ under §§ 204 and 205.²¹ This effort miscarried, largely because of political considerations. Alternative possibilities have been proposed, but none have as yet obtained support sufficient to obtain action. Nevertheless, NEPA provides a means for fact finding and research that is available to the Congress and the President whenever their evaluation of the importance of the functions it might perform prompts them to use it.

The intended strategy of NEPA requires the greater part of its implementation to be within the planning and decision processes of the federal agencies. But evaluation of agency action is something other than evaluation of the Act. It requires an informed judgment on agency policy and action and especially upon the President, the White House staff, and the Office of Management and Budget. Had the Act proved unworkable in all agencies that sincerely strove to implement it, the inference could be drawn that the Act was at fault. No such evidence has emerged and considerable variation has been found in the extent to which agencies have accepted or resisted application of the Act.

As might be exected, the independent regulatory commissions, such as Interstate Commerce and Federal Power, have been among the recalcitrants. The former Atomic Energy Commission did not fully accede to the requirements of the Act until chastised by the U.S. Court of Appeals for the District of Columbia Circuit in the Calvert Cliffs case. The Corps of Engineers appears to have made one of the more serious efforts to develop effective environmental impact analysis, but tradition, organizational structure, and public works politics have prevented this effort from fully achieving the objectives of NEPA in the greater number of Corps projects. The Bureau of Reclamation, as presently constituted, could conform to NEPA only with greatest difficulty and with abandonment of its efforts to forestall its long overdue demise.

It is unrealistic to expect that any federal agency can readily reform itself without the assistance of the Congress and the Office of Management and Budget. If there has been commitment to NEPA in the OMB, it has been a well kept secret in a city in which secrets are not well kept. The Congress has never organized to deal effectively with environmental issues. Economic interests continue to dominate most environmental controversies except where health has become a compelling factor, as in automobile emission controls. "Reasonable compromise" in legislation has very often meant that economic values are given the substance of the action and environmental values are served by symbolic recognition. However, to attempt a thorough review of Executive and congressional performance in relation to [6 ELR 50036] the Act would shift the focus of attention from the Act itself to the treatment of environmental issues in the federal government, an obviously related but more extensive subject. But without broadening the scope of consideration to this extent, it is possible to report certain general observations on governmental responses to NEPA that may reveal the de facto status of federal environmental policy.

Defining and Implementing Priorities

A general review of experience under NEPA thus far indicates that judges rather than administrators have become the principal interpreters of the Act, and that § 102 impact statement procedures have become a preoccupying concern of its critics. To understand these developments, the Act must be viewed within the context of politics in the United States at the beginning of the 1970's. Obviously, only the most relevant aspects of this context can be considered here.

No generalization is without its exceptions, but the effectiveness of legislation may depend as much upon the political environment in which it is applied as upon its substance and intended effect. NEPA implies a major modification and even a reversal of long established priorities in the political economy of the Nation. The disruptive effects of the Act on the business-as-usual economy do not appear to have been foreseen by the Congress or by those interests most likely to have been affected. However, the weekly news magazine Time observed, in its issue of August 1, 1969, that if NEPA became law, its impact might be felt by "… every imaginable special interest — airlines, highway builders, mining companies, real estate developers, …" and all federal policies with environmental implications would be open to challenge.²²

The prevailing assumptions of business and politics have not been favorable to a vigorous or comprehensive effort to realize the objectives of NEPA. There is a general national commitment to economic growth and development and to private enterprises as its principal agent. This commitment tends to be poorly defined and indiscriminate. It has been reinforced by moral conviction, often with highly emotional content. Conservative and liberal opinions differ primarily over how the economic benefits of the enterprise system should be divided. But Americans have been slow to consider how the benefits of private economic enterprise can be sustained without ever-growing pressure upon natural resources and environmental quality. The basic issue of the relationship of economic growth to the general quality of life has yet to be realistically faced. The American way has been to seek solutions to public problems through distributive manipulation of benefits and costs, usually through the medium of money. Nevertheless, § 101(b)(5) of NEPA declares it federal policy to "… achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities."²³

But the costs of a serious effort to restore and maintain the quality of the American environment appear to be greater than the present political and economic leaders of the nation seem willing to agree upon or to accept. Public opinion surveys indicate a general willingness to pay higher taxes, specifically for environmental improvement, and the 92nd Congess passed a $25 billion water-pollution-control bill over the veto of the President. But there is also evidence to suggest that many civic and business leaders give environmental quality lower priority than do perhaps a majority of their constituents.²⁴ This should not be surprising, however, for this largely middle-aged leadership rose to prominence under the very circumstances that have led to massive environmental deterioration. Their measure of the importance of an issue tends to be highly subjective … those issues that force themselves upon their personal attention are "important." Their assumptions and values were largely formed in the economic depression of the 1930's; their conventional yardstick for measuring the quality of life has been individual purchasing power. Thus a priorities gap may be widening between the traditional leaders in American business and politics and growing numbers of their constituents.

The rapid rise of the environmental movement caught the American business community and a large part of the political leadership off-guard. It has taken several years for trade associations, union leaders, and executives to define their relationship to the new ecological values and expectations. Organization and strategy has now been developed from among these groups to restrain further environmental measures, — land-use and strip-mining controls, for example. Thus, although the environment continues to rank high on the public's list of priorities, environmental legislation is now subject to sharp and well concerted attack by economic and arch-conservative interests with curious assistance from some spokesmen for the liberal left. At a time when the nation's flag, marriage, and motherhood have become controversial issues, it is hardly to be expected that environmental quality would remain immune to political contention.

Given the commitment to full employment and to economic growth through private business enterprise, environmental policies that retard, reduce, or redirect economic activity present public officials with disagreeable alternatives. Whatever course they take, there will be trouble with some sector of their constituencies. But neither the issues, their economic implications, nor the alternative solutions to the resulting problems are clearly definable. Because of their complexity and variable components there is an area of uncertainty surrounding nearly all environmental issues. And this uncertainty offers the politician and the administrator a way to evade the cross-fire of environmental disputes. The way is to transfer responsibility for decision marking to another political jurisdiction. For the federal Executive and Congress, the courts and the states are the obvious places to shift responsibility.²⁵

Yet, faced with political pressure and evidence of substantial popular demands, federal authorities, and [6 ELR 50037] especially the President, cannot wholly evade a nationwide issue. Recourse is thus sought to another method of high-level response to priority conflict. This is symbolic politics, an art that has been progressively practiced at the presidential level under the administrations of Presidents Kennedy, Johnson, Nixon and Ford. Political symbolish should not necessarily be equated with insincerity. It may or may not be joined to effective action. But symbolic acts are often performed to provide the appearance of action without incurring its actual risks.

Whether the ceremonialisigning of NEPA by President Nixon on January 1, 1970 was more than political symbolism is conjectural. From Theodore H. White's account of the Nixon Administration's concern with the environment, one might infer a high priority for environmental protection. The evidence is contradictory. The President and his immediate advisers opposed passage of the Act in the Congress, declaring that the President's cabinet-level environmental council, established by Executive Order, made NEPA unnecessary.²⁶ But once the Act had been adopted overwhelimingly by the Congress, President Nixon gave it strong initial support, appointing a distinguished CEQ, issuing a strong implementing Executive Order, and taking firm Executive action on behalf of environmental action in a number of highly controversial cases.²⁷ Yet, this commitment to environmental quality appeared to be short lived. Before the end of 1970, the President appeared to have backed off from his earlier position "… that the 1970's absolutely must be the years when America pays its debt to the past by reclaiming the purity of its air, waters, and living environment. It is literally now or never."²⁸

As opposition to environmental protection measures began to organize more effectively and to apply pressure upon Congress and the White House, the Nixon policies tended to become inconsistent and evasive, a trend possibly exaggerated by the President's strategy to build conservative support against impeachment. Critics allege that Nixon seemed more interested in personalizing and publicizing his action on behalf of environmental quality than in reforming the administrative agencies. It is not evident that the staff of the OMB have ever perceived agency implementation of NEPA as a high presiential priority.

The Ford Administration, caught up in "crises" of energy and recession, appears to have favored economic over ecological priorities. Yet, clearly, neither President Ford nor the congressional leadership wish to advertise an indifference to environmental quality, and this desire may be the best protection for NEPA at a time of political uncertainty. NEPA, unenthusiastically administered, retains its symbolic value, but NEPA, crippled by amendment, or repealed, would symbolize contempt for quality-of-life values widely held throughout American society.

In brief, the political leadership that alone has the power to dismantle NEPA could not benefit from doing so and would risk becoming the visible target of organized public anger. Political symbolism often has a positive value and, in the case of NEPA, may insure its survival until a time more propitious for its more full and effective utilization.

Should implementation of the National Environmental Policy Act have been left wholly to the President? The possibility of constituting the CEQ as an independent agency was discussed in the Senate Interior Committee Hearing of April 1969. In response to a question from Senator Jordan of Idaho, I suggested that there might be "… as many disadvantages in having such a Council in the Executive Office of the President as there would be in having it an independent agency." The idea of a council with a status similar to that of the General Accounting Office was suggested as a measure of protection against presidential indifference. My observations regarding the relationship of the Council and the Act to the President may yet be of sufficient pertinence to justify repetition:

The argument is, os course, that it (the Council) needs to be close to the seat of power, the seat of action — the President. On the other hand, even if it is in the Executive Office of the President, it won't be effective unless the President really wants to use it. If it is in the Executive Office of the President, the question does not arise as to the privileged character of its communications. Would it be subject, for example, to question by the Congress? In my judgment, it should be.

I am not unmindful of the important leadership role of the President in these matters, but I must confess that I feel that we have perhaps moved a little too far to a position on an almost exclusive reliance upon the President or the White House, as we say, for leadership and guidance in these matters. And it seems to me that the country is too big, the issues are too complex, to make this a realistic attitude. And we do not yet have, even in the President, a superman…. The idea … of an agency that is independent in some respects of the Executive Branch does not disturb me as long as Congress has enacted a kind of policy that is clear and operational and as long as the relationship between this Council and the Executive Branch is worked out to avoid unnecessary friction.

But let us be quite realistic. If we have such a Council, there are going to be times when there is going to be friction. Such a Council is going to have before it findings and reports which heads of Executive Agencies will not like.²⁹

Would NEPA have had a significantly different history if its implementing machinery had been partially removed from presidential control? In retrospect, I think the Act may have fared better during the years of Nixon support for being in the Executive Branch. An independent agency could, in any event, hardly achieve the central purpose of the Act in reordering the priorities and planning procedures of the executive agencies. Only the President is in position to do that, but the Congress has the means to "admonish" the President if he fails to take care that the laws are faithfully executed. Congressional oversight remains a powerful and conventional instrument for achieving [6 ELR 50038] most of the objectives that might be gained through an independent environmental council. And it is also possible for the Congress to strengthen the CEQ in ways that are consistent with the constitutional separation of powers and presidential responsibility for the Executive Branch. Use of the power to appropriate funds is one of the more obvious of these.

Beyond the First Five Years

Thus, the effectiveness of its administrative implementation by the federal government does not provide full measure of the effectiveness of the NEPA. The Fifth Annual Report on Environmental Quality³⁰ reported that 21 states, the commonwealth of Puerto Rico and, at least, two cities have adopted legislation based upon, or influenced by, NEPA. In effect, the states have supplemented and extended a national policy for the environment. Some states, moreover, have taken what Senator Jackson and President Nixon, at one time, deciared to be the next logical step to implement NEPA — land-use planning. And, given the division of powers in the American federal system, state action on behalf of environmental quality is necessary to a truly national environmental policy.

Several other countries, including Australia, Canada, and Israel, have adopted the impact statement requirement, and the impact statement idea has been widely discussed in relation to the environment-affecting activities of a number of European governments and of international agencies, including the World Bank and the Organization for Economic Co-operation and Development.³¹ The United States may therefore be credited with a governmental innovation that has been emulated abroad at a time when American institutions appear to be more often criticized than admired.

Yet, the single most significant accomplishment of NEPA may be the statement of a public ethic for the human environment joined to practical means for its realization. The ethic is not uniquely American, nor, following adoption abroad, is the principle mechanism for its enforcement through environmental impact analysis. But the ethic is without precedent in American public life. To unreservedly put NEPA into effect would offend powerful interests in the nation, already resistant to its relatively modest implementation. The prospect for NEPA is uncertain — not because the Act is seriously threatened, but because the political climate of its implementation cannot clearly be foreseen.

The future of NEPA is surely linked to the emergent issue of "growth." Semantic clarification of the growth issue reveals it as a division of opinion over the extent and direction of growth and the proper role of government in relation thereto. NEPA implies planning and control in relation to all forms of environment-affecting growth. It does not address the growth issue, but by implication rejects the proposition that unrestricted growth is the route to national welfare. Section 101(b)(5) calls for "… a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities."³² This, and indeed all other provisions of NEPA, require some form of public nationwide planning to attain realization.

Although a case may be made that physical and economic growth are not inevitably detrimental to the environment, the past record, and present evidence, makes the case difficult to defend. Increase in population growth and affluence in an energy-intensive economy can only be attained at proportional environmental cost or by a degree of social consensus, planning, and control foreign to American experience. Reaction against uncontrolled growth is already evident in numerous communities³³ and in some states.³⁴ In almost every instance in which growth has become a political issue, the primary argument for controlling growth has been to preserve environmental quality.

It is no coincidence that the greatest suspicion and dislike of NEPA appears to be among the advocates of unfettered freedom for growth. Conversely, the values stated in § 101 of NEPA correspond to those advocated by proponents of planned or restricted growth. It is improbable that NEPA will ever be fully invoked in a progrowth national administration. But the Act could be a cornerstone of policy in a government determined to bring growth under purposeful control, consistent with the criteria specified in the declaratory sections of NEPA. During four of its five year history — since 1970 — NEPA has been administered in a political milieu that, however sympathetic to its principles, has been antipathetic to their attainment by any practical means that would superimpose serious environmental NEPA must therefore await a change of political climate.

2. As of August 1, 1974, 13 states and the Commonwealth of Puerto Rico had adopted legislation influenced by NEPA and containing a comprehensive environmental impact statement (EIS) requirement: California, Connecticut, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, North Carolina, South Dakota Virginia, Washington, and Wisconsin. Three additional states — Michigan, New Jersey, and Texas — have extablished comprehensive EIS requirements by administrative action. Five states have limited EIS requirements pertaining to certain classes of projects. New York City initiated an EIS requirement by executive order. For details on the local, state, and international influence of NEPA see Environmental Quality: The Fifth Annual Report of the Council on Environmental Quality and 399-420 (1974). See also, T. Cardinal, The National Environmental Policy Act of 1969 and Its Implementation: A Socio-Political-Legal Look at the "New" Environmental Planning, 50 J. Urb. L. 465-485 (1973); S. Deutsch, The National Environmental Policy Act's First Five Years, 40 Env. Aff. at 3-80 (1975); F. Friedman, The National Environmental Policy Act of 1969 The Brave New World of Legislation, 6 Nat. Res. Lawyer 44-72 (1973); J. Sandler, The National Environmental Policy Act: A Sheep in Wolf's Clothing?, 39 Brook L. Rev. 139-150 (1970); H. Yarrington, The National Environmental Policy Act, 4 Env. Rep. 1-47 (1974).

3. See F. Hanks & J. Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969. 24 Rutgers L. Rev. 239-272 (1970); A Murphy, The National Environmental Policy Act and the Licensing Process: Environmental Magna Carta or Agency Coup de Grace, 72 Colum. L. Rev. 963-1007 (1972); and T. Stribling, National Environmental Policy Act Interpreted as Requiring Strict Procedural Compliance of Federal Agencies, 12 Nat. Res. J. 116-124 (1974).

4. 42 U.S.C. § 4331, ELR 41009.

5. See O. Briggs, NEPA as a Means to Preserve and Improve the Environment — The Substantive Review, 15 B.C. Ind. & Com. L. Rev. 699-720 (1974); B. Cohen & J. Warren, Judicial Recognition of the Substantive Requirements of the National Environmental Policy Act of 1969, 13 B.C. Ind. & Com. L. Rev. 665-704 (1972); L. Fox, Substance and Procedure in the Construction of the National Environmental Policy Act, 6 U. Mich. J. L. Reform 491-510 (1973); G. Haynes, Judicial Review of Factual Issues under the National Environmental Policy Act, 15 Ore. L. Rev. 408-417 (1972); J. Kumin, Substantive Review under the National Environmental Policy Act: E.D.F. v. Corps of Engineers, 3 Ecol. L. Q. 173-208 (1973); M. McDonald, The Relationship Between Substantive and Procedural Review under NEPA: A Case Study of SCRAP v. U.S., 4 Env. Affairs 157-178 (1975); S. Smith, Environmental Law — Substantive Review under the National Environmental Policy Act of 1969, 51 N.C.L. Rev. 145-154 (1972).

6. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1112, 1 ELR 20346, 20349 (D.C. Cir. 1971).

7. Cf. M. Ayton, Environmental Quality: Selected Bills and Resolution, (Legislative Reference Service, U.S. Library of Congress, Aug. 18, 1969) (revised and updated).

8. National Environmental Policy: Hearing on S.1075, S. 237 and S. 1752 before the Senate Comm. on Interior and Insular Affairs, 91st Cong., 1st Sess. at 116 (1969).

9. 42 U.S.C. § 4332(2)(C), ELR 41009.

10. See Draft Environmental Impact Statement: Big Pine Lake, Indiana, U.S. Army Engineer District, Louisville, Ky. (July 1974) (ELR Order No. 41169).

11. See C. Roe, Land Use: The Second Battle of Gettysburg, 42 Appraisal J. 90-102 (1974).

12. 5 U.S.C. § 552, ELR 41015.

13. See T. Jorling, Federal Statutes for Citizen Suits, 5 Nat. Res. Lawyer 337-343 (1972); R. Lutz & S. McCaffrey, Standing on the Side of the Environment: A Statutory Prescription for Citizen Participation, 1 Ecol. L. Q. 561-652 (1971); H. Malin Jr., Citizens Gain Ground in Right to Sue, 5 Env. Sci. & Tech. 586-587 (1971); J. Sax, Standing to Sue: A Critical Review of the Mineral King Decision, 13 Nat. Res. J. 76-88 (1973); A. D. Tarlock, Balancing Environmental Considerations and Energy Demands: A Comment on Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 7 Ind. I. J. 645-679 (1971).

14. 5 U.S.C. § 702, ELR 41007.

15. Mining Law of 1872, 30 U.S.C. § 22, ELR 41410.

16. 42 U.S.C. § 4333, ELR 41010.

17. 42 U.S.C. § 4344, ELF 41011.

18. 42 U.S.C. § 4345, ELR 41011.

19. Weekly Compliation of Presidential Documents (July 13, 1970) at 910, 918. The CEQ retained its authority to conduct research relating to environmental quality.

20. See, Memoranda for the President of the United States, Federal Organization for Environmental Protection, April 29, 1970 (unpublished).

21. See "The President's Message on the Environment, February 8, 1971," reprinted as Appendix F of Environmental Quality: The Second Annual Report of the Council on Environmental Quality, at 303 (1971).

22. Time, Aug. 1, 1969, at 42.

23. 42 U.S.C. § 4331(b)(5), ELR 41009.

24. D. Miller, Power in the Bowash Megalopolis 413 (1975).

25. Life, June 26, 1970, at 36-40.

26. Note statements by Presidential Advisor Dr. Lee A. Dubridge and others in National Environmental Policy Hearing on S. 1075 …, supra, n. 8 at 69-85, and in Transferring Environmental Evaluation Functions to the Environmental Quality Council: Hearing on H.R. 11952 Before a Subcomm, of the Comm, on Government Operations, 91st Cong., 1st Sess., 14-25 (1969).

27. E.g., action stopping the Cross Florida Barge Canal, prohibiting poisoning of predators on public lands, and sharply restricting the drilling for oil in the Santa Barbara Channel off the California Coast. Cf., Environmental Quality: The Third Annual Report of the Council on Environmental Quality at vii (1972).

28. Weekly Compilation of Presidential Documents (Jan. 5, 1970) at 11.

29. National Environmental Policy: Hearing, supra, n. 8 at 124.

30. Environmental Quality, supra, n. 1 at 401-420.

31. Id. at 399-401.

32. 42 U.S.C. § 4331(b)(5), ELR 41009.

33. E.g., Boulder, Colorado; Petaluma, California; Boca Raton, Florida; and Ramapo, New York.

34. E.g., Colorado, Montana, Oregon, and Vermont.

6 ELR 50030 | Environmental Law Reporter | copyright © 1976 | All rights reserved