Sunday, September 5, 2010

Silly rabbit, NEPA’s EISs are for kids:

Richard Nixon, among other things, is known for the National Environmental Policy Act (NEPA) of 1969. The act focuses on the overall environmental degradations affecting our health and welfare and possible preventive measures our government can take to minimize those degradations.

In general, section 101(b) of NEPA empowers federal agencies to consider environmental impacts and alter their actions accordingly. (Using energy saver light bulbs for all federal agencies; building new offices with only minimum impact to the endangered forest in the area; etc...) The effect of this act, in light of our Administrative Law, is that federal agencies are required to be transparent at the helms in keeping our country moving in the right direction with the environment in mind. Information is power. Given the information are public and are accessible, agencies would/should be more willing to adopt environmentally friendly procedures and actions?

It must be noted that the NEPA does not have the authority to force anyone into environmental compliance or action. It’s no rubber stamp, but its teeth are no jagged Great White’s. In a 1971 D.C. Circuit decision, the court held that the NEPA merely requires Federal agencies to consider the impact of their actions on the environment. Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission. Later the US Supreme Court affirmed the circuit court’s holding. See Robertson v. Methow Valley. 

Although it does not force federal agencies to select the most environmentally friendly options in their actions, it is subject to the Administrative Procedure Act (APA), 5 U.S.C. § 551. Our fellow tree-hugger watch-dogs may descend upon the Feds and demand justice if we should have rational basis and standing in court. See Greater Yellow Stone Coalition v. Kempthorne. The courts have been willing to declare NEPA “are entitled to substantial deference” in the presence of justice. Marsh v. Oregon Natural Res. Council. Section 102 of the NEPA requires agencies to list environmental impacts, in a Environmental Impact Statement (EIS), of any federal actions that significantly affect the quality of the human environment. This creates administrative records for the purpose of citizen and judicial review. Even though there are categorical exclusions to the EIS, but citizens are also entitled to citizens suits under the APA mentioned before.

Some have hailed the NEPA as giving a voice to the environmental values that were not prevalent in our society before. Aside from the point of enforceability in light of mere consideration standard, some have raise the concern that the NEPA is a mere tool for the ‘no in my back yard” types to slow down progress by inhibiting important projects that may be utilitarian to the whole human race.

For whatever it is worth, the NEPA is just tricks for the rabbit only if we do not want the sweets. The Act’s full force to propel our society towards sustainability resides in a public accountability mindset. We have to want our environment to be better and want to hold our federal agencies accountable for their reporting and decisions to build a progressive green future. We have to be kids and tell the rabbit: silly rabbit, NEPA and EISs are for us!!!

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