I suggested a while back in this column that those looking for a functional definition of sustainability might turn for wisdom to the environmental practitioner’s ancient text — the National Environmental Policy Act, passed in 1969. My thought was that NEPA’s frame on the sustainability ideal was as clear and helpful as anything else I have seen. If we gear our choices to avoiding the irretrievable or irreversible loss of resources as contemplated by NEPA Section 102, then we will necessarily be driven toward sustainable behavior in our approach to everything from materials reuse, to resource conservation, to energy choice.

As I watch the most recent swinging of the pendulum around issues like climate change, my thoughts once again take me to the ancient text. We all know the fluctuating regulatory climate around climate change. The Obama administration’s Clean Power Plan sought to address emissions from electricity generation through a state-by-state planning regime that allowed states to meet emissions targets through economy-wide measures, including drivers for a rapid build-out of renewable energy.

That rule was stopped in its tracks by an unusual Supreme Court stay. It would subsequently be taken down by the Trump administration on the premise that it exceeded EPA’s authority. The rule was replaced by the Affordable Clean Energy rule (with the ill-fated acronym “ACE”). The ACE rule, which allowed consideration of only within-the-fence-line operations at power plants, was in turn recently torpedoed by the D.C. Circuit Court as unlawfully restrictive in approach. Unless the appeals panel’s decision undergoes en banc review or is taken up by the Supreme Court, which seems unlikely in view of the certainty of the Biden administration’s non-defense of the ACE rule, opposition to certiorari, and commitment to replace the rule, it looks as though the path has been cleared for a third chapter in the EPA quest for a workable climate rule for the electricity sector.

The key question that has carried through this ebb and flow has been the reach of Clean Air Act authorities to drive the country’s energy choices. This question has largely been approached as a four-corners exercise — determined by the metes and bounds of the CAA’s text and legislative history. And, as the Biden administration rolls out its whole-of-government approach to climate change, this same four-corners consideration of authorities will likely guide agencies and departments in their review of opportunities for action.

But what if the question of authority was not viewed so much as a four-cornered square but rather as a pentagon, with a fifth corner? James McElfish’s recent post on ELI’s Vibrant Environment blog (“Biden on Administrative Law,” January 25) reminds us of a possible fifth corner — NEPA. The interesting question is this: Does NEPA provide an authority-booster or interpretive overlay that could make a difference in examining questions of authority under other environmental statutes? Section 102(1) 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” (emphasis added).

Among these are policies in Section 101(b) that mandate trusteeship for future generations, environmental equity, and beneficial use without degradation or risk. The section also ensures historical, cultural, and biological diversity and individual liberty, widespread sharing of life’s amenities, and management for quality of renewable resources and maximum attainable recycling of depletable resources.

The kicker is Section 105, which states that NEPA’s imperatives are “supplementary to the [policies and goals] set forth in the existing authorizations of federal agencies.” Might that mean that absent the express contravention of the statute’s policies in subsequent authorizing legislation, NEPA’s imperatives should be seen as infused into the authorities later provided? Might it mean that NEPA can be called into play in addressing apparent ambiguities in other laws? In addition to climate change, might Section 101, given its litany, have something to say about other key authority questions, like environmental justice and promoting the circular economy?

Rather interesting to see a concept like intergenerational equity embraced and projected into the future by this ancient text — the sober thinking of a Congress that was staring down the barrel of what it saw as an unfolding natural resource catastrophe. NEPA was their solution, passing unanimously in the Senate and 372-15 in the House — a true bipartisan outcome.

Ancient text for modern problems, and you don’t have to read Sanskrit to decipher it.