Ecology Comes of Age: NEPA's Lost Mandate

Duke Environmental Law and Policy Forum, Vol. 21 pp.113

June 2010

By Sam Kalen

Twenty-first century challenges are testing the resiliency of our Nation’s environmental programs. As such, we need to appreciate the National Environmental Policy Act’s (NEPA) resiliency for addressing our society’s evolving threats. This requires a better understanding both from the academy as well as the judiciary of what Congress intended when it passed the Magna Carta of environmental laws. That too little attention has been paid to such a paradigm shifting statute is unfortunate. Existing histories of NEPA simply overlook what animated Congress when it passed this Nation’s environmental charter. This article, therefore, fills a significant gap that has existed in environmental law for far too long, by examining the coalescing forces of the ecological movement and Congress’ desire to legislate on environmental quality, which ultimately produced NEPA. And both the importance and continuing relevance of NEPA’s fading history cannot be understated. Congress did not intend that NEPA would serve only an information disclosure function; rather, it more importantly intended to embrace and employ ecology—however it was understood—and expected that its policy statement and declaration would serve as a substantive mandate for federal agencies. It further expected that CEQ would perform a proactive role in both environmental management and coordination of federal decision-making. The article then offers some brief observations why this mandate perhaps became lost as NEPA began to unfold in both the agencies and courts, and how CEQ has the authority to prevent NEPA’s mandate from becoming ever lost.

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The above is an abstract for an article that originally appeared in 21 Duke Environmental Law and Policy Forum 113 (2010). Read the full article here.