Much of American environmental legislation is outdated and in need of reform. Still authoritative today are the Clean Water Act of 1972, the Endangered Species Act of 1973, the Resource Conservation and Recovery Act of 1976, and the Toxic Substances Control Act of 1976. The list goes on despite incredible scientific and technological advances of this century that definitively prove current environmental problems and offer means of mitigating these problems. The people that first heard the news of these legislative acts considered platform shoes, bell bottom pants, and feathered hair fashionable. None of these Acts have been majorly amended in this century. Though there is room for improvement in many US environmental laws, the National Environmental Policy Act of 1969 is on the shortlist due to its breadth and potential to become tremendously more effective. Below NEPA is compared to a similar piece of legislation, and though a disparity of domestic and international law must be noted, relevant improvements to NEPA can be extrapolated.
NEPA and the Convention on Environmental Impact Assessment in a Transboundary Context (CEIA) of 1991 signed in Finland have fundamental similarities in their intention and purpose. Both were written mindful of the need and importance to develop policy and procedural framework that legally requires consideration, prevention, and mitigation of adverse environmental impacts. A key difference between NEPA and CEIA is that NEPA is strictly procedural, while CEIA is both procedural and substantive. In fact, there are multiple provisions included in CEIA, to which the US is a party, that the US fails to satisfy through NEPA. These various provisions are explored below.
The fact that NEPA is strictly procedural is limiting, but this does not mean it is without teeth. Though one would hope a bill with such a title would force government-agency decision outcomes to comply with environmental considerations, the US Supreme Court has held that NEPA only serves to inform the decision-making process, as discussed in Stryker Bay v. Karlen. However, litigating parties can compel executive branch action via the judiciary upholding NEPA, as held in Calvert Cliffs Coordinating Committee v. US Atomic Energy Commission. Regardless, clauses of CEIA are stronger and enforceable due to their “shall take” diction in Article 2, Sections 1 and 2, as opposed to NEPA’s “shall encourage” language in its Purpose and throughout. For example, Article 2, Section 1 of CEIA reads, “Parties shall…take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.” This language is enforceable, whereas NEPA’s goal of “encourag[ing] productive and enjoyable harmony between man and his environment” is not. The encouragement of environmental considerations is much weaker than obligatory compliance with environmentally considered policies.
As a generality about the effectiveness of NEPA, it is notable that the ambiguous language used in its Articles gives rise to “policy space” –a concept that the Supreme Court reviews in Chevron v. NRDC and its “Chevron two-step” test. Much of the case law surrounding NEPA arose from this implicit-delegation ambiguity and stretching of words. This ambiguity weakens NEPA, and although the judiciary can be leaned on for clarification, this clarification takes a great deal of time and energy. This brings to mind Benjamin Franklin’s words, “an ounce of prevention is worth a pound of cure.”
Another aspect in which NEPA fails to satisfy CEIA is in the process of notifying Parties affected by adverse environmental impacts. Article 3, Section1 of CEIA requires that those potentially responsible for an adverse environmental impact “notify any Party which it considers may be an affected Party as soon as possible.” Not only is the government of the affected Party notified, but Section 8 requires the concerned Parties to “ensure the public of the affected Party in the areas likely to be affected be informed of, and be provided with possibilities for making comments or objections on, the proposed activity.” This differs from NEPA in that NEPA does not compel notification; it only requires that the EIS of a project be published to the Federal Registry and available for comment before a final decision to act is made. If CEIA notification requirements were applied to NEPA, the comprehensive EIS conducted in Kleppe v. Sierra Club would have required the US Department of the Interior to actively notify all US citizens of the potential adverse public health effects of mining and burning coal.
After the period of public comment required by NEPA ends, the government agency proposing the action is left to itself to consider received comments, and has discretion to finalize their decision. Articles 5 and 6 of CEIA, on the other hand, not only require the consideration of comments, but compel Parties to enter into consultations with affected Parties after the Environmental Impact Statement (EIS) is completed, and require the final decision be proposed along with its reasoning. More such thorough procedural requirements in the US would serve to strengthen the weight of environmental considerations in the final decision-making stage by opening up multi-directional dialogue, instead of trusting the judgment of an independent and opaque agency. For example, in Stryker Bay v. Karlen, the affected neighborhood community would have been given a platform to discuss the US Department of Housing and Urban Development’s planned action and given an explanation of their reasoning, rather than abruptly presented with the USDHUD final decision.
Not only is CEIA more thorough in the final decision-making stage, but Article 7 provides procedural guidelines for post-project analysis at the request of any Party. If the Party has “reasonable grounds for concluding that there is a significant adverse transboundary impact…the concerned Parties shall then consult on necessary measures to reduce or eliminate the impact.” This aspect is absent in NEPA; its only functional equivalent being lengthy litigation based on harm to a party as a result of the action.
One final provision of CEIA that NEPA fails to satisfy is Article 9, which states that “Parties shall give special consideration to setting up, or intensification of, specific research programs” aimed at improving the scientific and analytical methods for assessing, monitoring, and solving issues of adverse environmental impact. NEPA’s Council on Environmental Quality serves a similar purpose but lacks the plurality suggested in Article 9.
In conclusion, there is clear room for improvement in domestic environmental law pertaining to legal consideration of government action. NEPA’s procedural requirements are helpful, but they are clearly outdated and do not encourage prudent action in regard to environmental harm. CEIA-modeled substantive and procedural provisions compelling environmentally considered actions would serve much more effectively. NEPA’s broad reach and already-paved improvement path make it an effective and sensible candidate for legislative reform.
Author: Ben Criswell, EDN Intern