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Home>Time to Stop and Think about NEPA

Time to Stop and Think about NEPA

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May 20, 2011

By Brian Steed


The National Environmental Policy Act (NEPA) has become one of the highest profile (and most often relied on) environmental laws in the United States.  NEPA is a truly unique variety of environmental law.  Although the statute has formed the bases of literally thousands of environmental lawsuits, in and of itself, the statute does nothing to protect the environment.  Rather, in the words of one influential environmental text,  NEPA requires the federal government to “stop and think” about proposed federal actions and to disclose potential impacts of those outcomes to the public.[1]  The mechanism prescribed to stop and think is an environmental assessment and/or a detailed cost benefit analysis known as an environmental impact statement.

Despite having launched thousands of lawsuits to protect a variety of pieces of the environment, the  plain language in Title I, Section  102(C) specifically notes that NEPA should apply when major federal actions significantly affect “the quality of the human environment” (emphasis added).  Hence, in its plain language, NEPA analyses are cost benefit analyses of the impacts on humans and their environment.  Since its enactment in 1970, courts have expanded the role of NEPA to cover virtually all aspects of the environment, often seemingly forgetting the humans in “the human environment.”  Environmental groups and other special interests have successfully used to the statute to keep a plethora of governmental plans in a perpetual administrative limbo by consistently requiring new and different environmental impact analysis. 

Based on this turn of events, it appears it is time to stop and think about NEPA to understand whether the statute is being applied as it was intended.  Do the cost and benefit analyses performed in NEPA compliance sufficiently consider the human costs of federal actions?

 NEPA enforcement took a positive step toward remembering the humans in “human environments” in late 2009 and early 2010, when Judge Oliver Wanger of the Ninth Circuit in California ruled that the federal government erred in accepting and implementing two biological opinions dealing with endangered fish species without first performing a NEPA analysis.  The biological opinions had mandated curbing water deliveries to a variety of humans for agricultural and municipal uses to protect the fish species.  The court noted that a NEPA analysis should have been performed before taking these actions to understand the cost and benefits of the action on humans.  It remains to be seen whether Judge Wanger’s actions are the start of a new trend in the enforcement of NEPA, however, it appears to be a step in the right direction.



[1] Platter, Zygmunt J.B. et al. (2004) Environmental Law and Policy 3rd Ed. New York: Aspen Publishers (p. 472) 

 

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