The National Environmental Policy Act Today, with an Emphasis on Its Application across U.S. Borders

Article excerpt

I. BACKGROUND

The National Environmental Policy Act ("NEPA") was enacted in 1969 and became effective on January 1, 1970. (1) A hallmark environmental law, it has important aspirational components, a number of substantive provisions, a section establishing the Council on Environmental Quality ("CEQ"), and a requirement that, "to the fullest extent possible," all federal agencies shall "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 environment[al] impact of the proposed action ..." and other specified requirements. (2) This Environmental Impact Statement ("EIS") requirement has become, over time, a central feature of NEPA and indeed, in the public mind, the primary feature of the statute.

The Environmental Review (comprising the EIS and the Environmental Assessment ("EA") component of NEPA) serves several critical purposes: it obliges the agency to develop effective information about the environmental impacts of a proposed action; it obliges the agency decision-maker to consider "every significant aspect of the environmental impact of a proposed action;" (3) and it involves the public in the agency's decision-making process. (4) Court review of agency application of NEPA, while somewhat deferential to agencies, is crucial to keeping agencies honest in applying NEPA, just as court review of substantive agency decisions under the Administrative Procedure Act and similar provisions in other statutes assures that agency exercise of discretion is within the bounds of the law. Thus, judicial decision-making plays a significant role in the operation of NEPA.

In early 1995, NEPA turned twenty-five. A review at that time of its evolution revealed that the Act had stood the test of time well. Its growth has followed many steps. Courts gave meaning to the short paragraphs of the statute. The CEQ issued guidance and later promulgated regulations interpreting the statute. Virtually every agency adopted its own NEPA regulations applying the CEQ regulations to its own activities. (5) Through court interpretation and agency regulation, agencies came to have a reasonably clear idea of when a full EIS was required and when a more short-form EA would be sufficient. Under CEQ regulations, a "categorical exclusion" process developed allowing agencies to undertake routine actions without an EIS or EA. The public actively participated in the EIS process, and therefore in the agency decision-making process. Agency decision-makers more fully took environmental information and values into account as a result of the NEPA process. At mellow middle age, NEPA was energetic and effective.

To understand the effect of the EIS requirements on agency decision-making, it is helpful to know that agencies issue approximately 500 EISs and 50,000 EAs each year. Each EIS must be filed with the EPA, which then publishes a notice of its availability in the Federal Register. (6)

States and other countries have emulated NEPA. The CEQ website lists seventeen states (including the District of Columbia and Puerto Rico) that have laws similar to NEPA. (7) Further, over one hundred countries, as well as many international organizations such as the World Bank, have analogous laws and procedures. (8) The United States has been considered a model of environmental leadership, in part because of the importance of its environmental review process.

So what is happening to NEPA as middle age wears on? This article will focus on two conditions of NEPA's advancing middle age. First, efforts by the Bush Administration to limit this important tool through statutory interpretation, litigation, and legislation to the detriment of the statute and to United States global leadership in environmental issues will be discussed. Then, the influence of NEPA beyond U. …