Heralded in 1970 as the nation’s “environmental Magna Carta,” the National Environmental Policy Act’s (NEPA’s) future seems uncertain. As Trump Administration initiatives threaten to diminish and perhaps even dismantle aspects of NEPA, an article in the May issue of ELR—The Environmental Law Reporter chronicles how this merely continues NEPA’s unfortunate trajectory, examining how the courts, the U.S. Congress, and the executive branch each have whittled away at the Act. The author, Prof. Sam Kalen, argues that the 50-year old statute could either fade away or hew back toward its original promise, and he urges the latter path.
Kalen recommends, first, that NEPA compliance be overseen by a new unit within the Council on Environmental Quality (CEQ), which could be charged with coordinating, tracking, and ensuring objectivity in environmental analysis. Each federal agency would have a corresponding NEPA compliance officer (and staff) in this unit, employed by and under the direction of CEQ, and they in turn could have supervisory authority over a corresponding NEPA compliance office within each department or agency.
Next, CEQ ought to require agencies to engage in balancing environmental harms against the benefits of a proposed action. Nothing in NEPA, Kalen argues, precludes CEQ from imposing such a balancing requirement. A progressive CEQ willing to direct such a balancing could accomplish Congress’ original vision to reach sounder, not just informed, agency decisions.
Third, recommends Kalen, the NEPA process should better incorporate the post-decision ability to monitor and adapt as new information and effects are understood. When Congress enacted NEPA 50 years ago, he explains, many ecologists believed nature operated in equilibrium—a “balance of nature” paradigm. Today, ecologists talk about how nature is chaotic, and just as principles of ecology have evolved over the past 50 years, so too should the underlying assumption of NEPA. Consequently, CEQ ought to engage the affected public and regulated community in how best to induce agencies into structuring programs to accomplish continuous monitoring and adaptation while preserving regulatory certainty.
“These three proposals, if implemented, could infuse NEPA with sufficient vitality to alter its unfortunate trajectory further away from its lofty ideals,” writes Prof. Kalen. “Absent these—or at least similar—changes, we may be at the cusp of losing our environmental Magna Carta.”
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