Taking Congress's Words Seriously: Towards a Sound Construction of NEPA's Long Overlooked Interpretation Mandate

Article excerpt

  I. INTRODUCTION
 II. NEPA's INTERPRETATION MANDATE: PLAIN LANGUAGE, LEGISLATIVE
     HISTORY, AND UNANSWERED QUESTIONS
III. WHAT POLICIES DOES NEPA SET FORTH?
 IV. TO WHOM DOES THE INTERPRETATION MANDATE APPLY?
  V. WHAT IS MEANT BY "TO THE FULLEST EXTENT POSSIBLE"?
 VI. HOW NEPA's INTERPRETATION MANDATE MAY APPLY IN ENVIRONMENTAL
     CASES: NATIONAL ASS'N OF HOME BUILDERS V. DEFENDERS OF WILDLIFE
     AS AN EXAMPLE
VII. CONCLUSION

I. INTRODUCTION

The National Environmental Policy Act of 1969 (NEPA) (1) was one of the first federal environmental enactments of the modern environmental era. Best known for its environmental impact statement (EIS) requirement, (2) and its establishment of the Council on Environmental Quality (CEQ) in the Executive Branch, (3) NEPA has been the basis of numerous lawsuits regarding federal governmental projects that will or may have an adverse impact on the human environment. (4) Despite that fact, however, and notwithstanding the significance of the statute as a catalyst to the study and analysis of environmental trends and the environmental consequences of major federal actions, some of NEPA's provisions have been persistently overlooked by the federal courts and the attorneys who appear before them.

This Article focuses on one such provision: subsection 102(1). (5) Surprisingly (at least to this author), in the thirty-nine years since NEPA's enactment, that brief subsection has been directly applied only six times in judicial opinions. (6)

In Part II of this Article, I will discuss the plain language of NEPA subsection 102(1) and its pithy (and unenlightening) legislative history, and I will identify several important questions that the provision appears to raise. In the following three Parts I will consider each of those questions in more detail, taking account of the (minimal)judicial construction thus far given to subsection 102(1). Those three portions of this Article examine in turn what policies are "set forth" in the statute as a guidepost for regulatory and statutory interpretations, to whom the NEPA interpretation provision applies, and what is meant by the statutory phrase "to the fullest extent possible." Finally, drawing for illustration on the United States Supreme Court's decision in National Ass'n of Home Builders v. Defenders of Wildlife (7)--a recently decided environmental case in which subsection 102(1) played no part--I will examine how NEPA's interpretation requirement can and may be applied in future disputes where federal judges are called upon to explain (and harmonize) the meaning of environmental legislation.

II. NEPA's INTERPRETATION MANDATE: PLAIN LANGUAGE, LEGISLATIVE HISTORY, AND UNANSWERED QUESTIONS

The interpretation provision of NEPA is notable for its brevity. Subsection 102(1) simply states that "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter." (8)

On a careful reading of this sentence, several of its aspects are immediately apparent. First, the subsection is unmistakably mandatory. In clear terms, Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA's policies, it has required that to occur. The subsection employs the verb "shall," as opposed to "may" to describe what must occur, traditionally an indication of an intended command as opposed to a mere aspiration. (9) The first sentence of section 102 also indicates that Congress both "authorizes and directs" that the sort of legal interpretation and administration that the provision mentions must take place. (10) That phraseology provides a further unambiguous indication that what Congress refers to in the provision is nondiscretionary.

Second, the subsection makes plain that what is to be construed and administered in accordance with NEPA's policies are "the policies, regulations, and public laws of the United States. …