Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

Half of the National Environmental Policy Act is a Dead Letter

Laws enacted by Congress can be either substantive, procedural, or some of both. Substantive provisions of congressional statutes pertaining to environmental protection in effect say things to the effect of “manage this area as wilderness,” “prevent extinction of species,” and “the water shall be clean.” Substantive provisions are preferred. Procedural provisions of such congressional statutes say in effect “have public involvement,” “consider the best available science,” “consider alternatives to the proposed action,” and “seek to mitigate harm.” Procedural statutes direct federal agencies to adhere to certain processes in the expectation, or at least hope, that this will result in better decisions to protect the environment, but they cannot mandate this result.

The substantive provisions of the National Environmental Policy Act (NEPA) were bold and sweeping and could have made over the federal government to be more environmentally friendly. However, the courts have never found that NEPA’s substantive provisions really mean anything and have found that they are not enforceable upon federal agencies. The procedural provisions may still hold but amount to no more than forcing the government to go through the motions before reaching a foregone conclusion.

A dead letter is what legal scholars call a law still on the books but ineffectual or defunct in practice. Half of NEPA a dead letter?

NEPA’s Substance: High Hopes

The National Environmental Policy Act was enacted into law in 1970. It was signed by President Richard Nixon, who knew a political bandwagon when he saw it and knew that a veto would be overridden (Figure 1). (Note that it is not the National Environmental Protection Act, as many often miscall it, perhaps conflating it with the Environmental Protection Agency, established later that same year.) As a statute, NEPA is best known for having established the White House Council on Environmental Quality and bringing about the environmental impact statement.


Figure 1. Happy new year! President Richard Nixon signing the National Environmental Policy Act into law on January 1, 1970. Source: Nixon Library

Congress’s purposes in passing NEPA were stated as follows:

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.[emphasis added]

Congress went on:

[I]t is the continuing responsibility of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. [emphasis added] 

Congress went on and on:

[I]t is the continuing 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 trusteeof the environment for succeeding generations

(2) assurefor 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 the maximum attainable recycling of depletable resources[emphasis added]

NEPA’s Practical Reach: Hopes Dashed

In 1978, the US Supreme Court in deciding Kleppe. v. Sierra Club unambiguously dashed any hope that NEPA’s substantive provisions meant anything substantial. At issue was whether the Department of the Interior could grant leases, approve mining plans, and issue permits to a number of small private companies wanting to mine coal in four northwestern states without requiring, as the Sierra Club insisted, the preparation of a comprehensive regional environmental impact statement (EIS). The court’s decision in favor of Interior Secretary Thomas Kleppe reads in part

In Vermont Yankee Nuclear Power Corp. v. NRDC,we stated that NEPA, while establishing “significant substantive goals for the Nation,” imposes upon agencies duties that are “essentially procedural.” As we stressed in that case, NEPA was designed “to insure a fully informed and well-considered decision,” but not necessarily “a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency.” Vermont Yankee cuts sharply against the Court of Appeals’ conclusion that an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot “interject itself within the area of discretion of the executive as to the choice of the action to be taken.”

In other words, all the courts can do is require that an EIS be prepared if it is required by NEPA. They cannot force an agency to elevate environmental concerns to the degree suggested by the substantial provisions of NEPA. In this case, the court decided that a regional EIS did not need to be prepared because the Department of the Interior plan involved many minor projects that didn’t add up to a major federal action. 

If the U.S. Army Corps of Engineers proposes to pave over the Earth, NEPA, in and of itself, will not stop them. All the Army has to do is prepare an environmental impact statement that considers a reasonable range of alternatives, proposes reasonable and prudent mitigation measures and fully discloses to the public the impact.

NEPA’s Process: Under Threat

Now the other half of NEPA—the procedural provisions—are under congressional and administrative threat. The public lands conservation community must fight those proposed rollbacks. However, even if we are successful, it is prudent to rely less on NEPA process to obtain its conservation goals. Later Public Lands Blog posts will examine how to do both.