Final Report (all chapters)

10.9.1 The National Environmental Policy Act of 1969
NEPA is often referred to as the father of all environmental statutes, the “Magna Carta” of
the environmental movement – and with good reason. 75 With NEPA, Congress enacted a very
ambitious statute that, among other things, was supposed to “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 […].” 76
The centerpiece of these efforts is the environmental impact statement (EIS), a detailed
description of possible negative impacts on the environment. Section 102(C) of the statute
requires the agency to make the EIS, along with comments from other federal agencies with
relevant expertise, available to the general public for comments. Following the statute’s passage,
the Council on Environmental Quality (CEQ), the executive office administering NEPA,
promulgated numerous regulations that translated these rather generic requirements into specific
obligations.
NEPA does not establish specific performance standards. It achieves its main goal
procedurally by requiring federal agencies to develop methods and techniques to study the
impact of their endeavor on the natural environment and to make a “determination of
significance” thereof. In this, NEPA was a visionary statute, anticipating by more than 20 years
modern tools of environmental management such as the ISO14000 set of standards. NEPA also
fosters what could be described as a dialogue with the public: Agencies have an obligation to
inform the public about a project’s environmental impact by disseminating the EIS. The public,
for its part, is given an opportunity to improve on the quality of the analysis by submitting
comments.
There is no doubt that NEPA has been widely successful in broadening the decision-making
process beyond contractual stakeholders. Environmental groups quickly recognized that the
rhetoric of “public participation” would have shifted the center of political gravity from the
agencies and their closest clients to a much larger universe of advocacy groups, neighborhood
associations, ad hoc citizens’ coalitions, and just plain folks. Legislators had hoped that a more
inclusive process of decision-making would have increased the legitimacy of the final outcome
and reduced litigation. More than 35 years after the enactment of this statute, it has become clear
that NEPA, far from quelling public controversies over federal projects, has actually contributed
to amplifying them. The end result, according to some commentators, has been both
administrative paralysis and litigiousness.
The fact that consulting with the public has in some cases paralyzed the bureaucratic
machinery is not necessarily an indication of political failure. One could argue that injecting
public views and allowing environmental groups to comment on proposed projects actually has
contributed to correcting a political failure characterized by distorted planning processes in
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76
Michael C. Blumm, "The National Environmental Policy Act at Twenty: A Preface," Environmental Law 20
(1990).
See P.L. 91-190, Section 2.
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