As the National Environmental Policy Act turns 40, the Obama administration is considering expanding the scope of the landmark act to include climate change.
The National Environmental Policy Act (NEPA) is arguably the most important environmental law ever enacted in the United States. Unlike the lengthy and highly-prescriptive environmental regulations of its era, however, NEPA was relatively short, fairly simple, and surprisingly comprehensive.
But its strength may also be its shortcoming. Unlike other sectors of the federal government that deal with environmental issues--Department of Energy, Department of the Interior, Department of Agriculture, etc.--its institutional offspring, the Environmental Protection Agency, was never granted department status.
Up until the late sixties, environmental policy in the U.S. was lax, fragmented and focused mostly on conservation and/or preservation of public lands. Most land use issues, water, and air quality were all considered to be under state or local jurisdiction and the Feds were expected to keep out of it. But the vigorous pace of post-war American industrialization in was taking a toll on the nation's overall environmental health.
1969: An environmental tipping point and an unlikely champion
It all came to a head in 1969. The oil-drenched Cayuhoga River in Cleveland, Ohio was burning; a blowout at an offshore oil rig near Santa Barbara spilled up to 100,000 barrels into the Pacific, killing 10,000 birds; and mounting public dissatisfaction with the Federal government on a number of policy fronts including the environment, war in Vietnam, and civil rights--especially among a politically-engaged and soon to be voting segment of young people--all helped build momentum for a spate of federal environmental regulations. Environmental regulations that had unprecedented political popularity -- among both Democrats and Republicans.
Seizing upon the public momentum for Federal environmental action, Congress passed the National Environmental Policy Act in late 1969 with--get this--unanimous Senate support. President Richard Nixon then signed NEPA into law on January 1, 1970, making it his first official act of 1970 and proclaiming the 1970s as "the environmental decade." It was a small coup for Nixon, who would ultimately sign several more landmark environmental laws including the Clean Air Act and the Clean Water Act in the months and years to come.
The law had three components: It established a national policy to protect the environment; it required that environmental impact statements be prepared for major federal actions having a significant effect on the environment; and it created the Council on Environmental Quality (CEQ).
NEPA's environmental vision was unabashedly bold, if almost a bit Utopian:
"To declare a national policy which will 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..." - Congressional Declaration of Purpose, National Environmental Policy Act of 1969
The framework of NEPA also trickled down to the state-level, as states laid out their broad environmental policy visions and system of legal checks and balances modeled after the groundbreaking national policy.
NEPA opens access to courts, allows government to be sued to protect the environment
But perhaps the bill's most important contribution to the framework and culture of American environmental policy-making was the requirement that the Federal Government produce an Environmental Impact Statement (EIS) for any federal development project. The stipulation provided a new point of access for the public into the American legal system, and a whole system of environmental advocacy via the courts was born.
The participatory channels opened up by NEPA were not just those accessible only by well-organized environmental organizations and their fresh-faced lawyers, NEPA also codified the practice of allowing the public to comment on Federal actions as a necessary part of any EIS. Those ubiquitous public comment periods you see for a proposed oil and gas lease, an offshore wind farm or listing of endangered animals.
By creating an opening in the political opportunity structure that led straight to the courts, many environmental advocacy organizations made the strategic decision to focus on intervention via legal challenge. The courts, unlike other venues, provided a relatively consistent venue bound by rules that protect due process.
It is that very legal opening--the one that creates the right to sue the federal government on procedural grounds, that may be the basis of climate change-centered legal challenges as President Obama considers expanding the role of the National Environmental Policy Act to require federal development projects to also consider impacts on climate change when preparing an environmental impact statement.
Expansion of NEPA to include climate change would breathe new life into the forty year-old act and certainly give the Obama administration more ability to act on climate with or without Congress acting. Who knows, leadership from the executive branch on climate change might even spark a movement to elevate the EPA to departmental status. You think that would win unanimous support in today's political climate? I'm guessing not.
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