By Sam Kalen
"The slow development of case law on the subject of man's right to live in quality surroundings is unfortunate. No matter how good the intentions, actions, and end products of legislative bodies, those bodies cannot legislate on all matters essential to environmental quality. At best, they can state the goals of society with respect tot he type of environment we want for ourselves and future generations, and enact policies which appear to maximize the likelihood that those goals will be attained. But there will always be many specific fact situations which the legislative bodies do not anticipate or deal with; in those situations the public interest should not be ignored merely because the situations were not foreseen."
As the National Environmental Policy Act of 1969 ("NEPA") approaches its fortieth anniversary, it seems only fitting - in a world standing on the precipice of various environmental crises, ranging from climate change to the dramatic depletion of marine resources - to reflect on the past and potential future of NEPA. Shortly after Congress passed the Act, the House congressional committee with jurisdiction over NEPA described the law as revolutionary in intent and designed to steer this Nation on a course of environmental management. Early reactions to the Act suggested that it would become the environmental Magna Carta. NEPA has spurred countless lawsuits, put innumerable lawyers and consultants to work, and, by most accounts, produced a much more environmentally informed federal bureaucracy. Yet it has achieved those "successes" at the same time that it has become accepted as yet another "procedural" statute. Courts and commentators alike parrot the common refrain that NEPA is a procedural statute, it does not demand any substantive outcome. Approximately two and half years after President Nixon signed NEPA into law, Justice Douglas predicted what he called the ultimate demise of NEPA. But just how Justice Douglas's prediction became true is not uniformly known. This article, therefore, explores how NEPA became what it is today, a "procedural" statute.
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The above is the introduction to an article that originally appeared in the William and Mary Environmental Law & Policy Review, Vol. 33, Issue 2 (2009). Read the full article here.