Prairie Fire presents a two-part series on the National Environmental Policy Act of 1969, commonly referred to as “NEPA.” Part One discusses the need for the act and its key components. Part Two will examine the evolution of NEPA and constraints to the fulfillment of its policy intent.
As often said, a picture can say it all. This summer that image was electronic video capture a mile below the sea surface. It contained a twisted heap of metal from which a brackish jet plume of long-deceased ancient life spewed forth. The ugliness of the scene was immediate and visceral. Both the corporate and federal responses seemed inadequate and frustrated us. Maybe a deeper, more commonly shared frustration is that the Deepwater Horizon spill was one of those instances when we humans are reminded that our attempts to control the Earth can be illusory. Technology, expertise and good intentions can’t protect us from ourselves 100 percent of the time.
Another frustration arises from the fact that such environmental disasters have happened before. The environmental regulation created a generation ago did not happen in a vacuum. It happened because focusing events such as the burning of Cuyohoga River, killer smog events and the publication of “Silent Spring” created a mass public movement that put such tremendous political pressure on our elected officials that even Richard Nixon couldn’t ignore it.
The act, which both symbolically and chronologically came at the crest of a wave of environmental legislation, wasn’t the Clean Air Act, Clean Water Act or Endangered Species Act, but the National Environmental Policy Act of 1969 (NEPA). While its more commonly known statutory counterparts tend to reduce environmental problems to a few species or substances of concern, NEPA intends a holistic, ecosystem-based approach. The act’s lack of name recognition is unfortunate since it is accessible in both length (seven pages) and language. Section 101, what may be considered the preamble of the larger act, typifies this accessibility:
(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. Sec. 101 [42 USC § 4331]
In addition to its lack of intimidating or technical jargon, a defining feature of this preamble is its reasonableness. The environment is composed of many connected parts. Man is but one of these parts and is dependent on the environment for his welfare. Environmental concerns are worthy of attention and should be considered in addition to economic and social concerns. The federal government should help protect the environment for future generations. A reader does not need a Ph.D. in environmental science for these words to make sense on an instinctive level.
NEPA’s opening language in Section 101(a) was, thus, a statement of national environmental intent. Other provisions in the text clarify and expand this intent somewhat, but the core message is the same: the federal government will now consider ecological systems in its decision making. State governments and other public and private entities were encouraged to follow suit. Fifteen states did eventually adopt “little NEPAs,” and a number of foreign nations have passed environmental legislation modeled after NEPA.
Although NEPA very clearly stated that environmental concerns would not trump economic interests but would be considered alongside them, the mere inclusion of ecological consideration was a major shift in federal decision making. Prior to the passage of NEPA, environmental concerns were scarcely considered in decision making, let alone formalized by statute. Federal agencies with resource-management duties tended to have institutional biases toward short-term, consumptive uses. Such agencies include but are not limited to the Bureau of Land Management, the Bureau of Reclamation, the United States Forest Service and the Army Corps of Engineers. For most of their existence, these agencies considered their charge to be economic and agency growth, not conservation or enforcement of environmental values. Agency leadership tended to be more closely aligned with the economic values of industry than conservation values. Federal involvement in other activities such as power production and highway and dam construction also had tremendous impacts on ecosystems.
To be fair, it must be acknowledged that a well-defined, coordinated intersection between environmental science and public administration had not existed in either academic or legislative respects until near the time of NEPA’s passage. Writers such as Thoreau, Muir and Leopold had articulated an early yet well-developed ecological ethic, but it had permeated only a few scattered corners of the federal bureaucracy. The National Park Service had been in existence for a few decades and certainly had a mandate of environmental stewardship, but it was limited to large, unique tracts of publically owned wilderness. NEPA not only covered federal land but near the full gamut of federal activity. It was this nexus between federal activity and ecological condition that prompted NEPA.
A well-explained critique of cozy relationships between federal regulators and the industries they regulate was offered by University of Chicago economist George Stigler in a 1971 article, “The Theory of Economic Regulation.” Though the article does not specifically address environmental regulation, its concepts have broad applicability to a range of regulatory situations. The article was also timely in the context of NEPA in that it describes a common pattern of government regulation in the decades leading up to 1970. Stigler provided empirical evidence to support his assertion that regulatory agencies initially created to act in the public interest in many instances actually come to act on behalf of the economic or special interests that the agency is charged with regulating. The formal economic theory posited by Stigler to describe this situation was termed “regulatory capture.” Regulatory capture occurs when groups or individuals with a large stake in a policy or regulatory decision exert intense pressure to affect policy outcomes that benefit them. The rest of the public, who individually have much smaller stakes in the policy, have little incentive to mobilize and may tend to ignore the policy process. In the example of extractive industries operating on public lands, many of these lands are in unpopulated and geographically isolated areas—even offshore—further reducing the likelihood of public awareness and concern.
NEPA alone could not and has not conquered a tendency for government agencies to become captured by the regulated. Regulatory capture is an ongoing problem of our government, if not all governments, and recent examples are abundant. From the Securities and Exchange Commission’s lap-dog relationship with Bernard Madoff to the Minerals Management Service’s penchant for sex, drugs and golf trips as conditions of preferred oil and gas leases, patterns of agency capture continue.
NEPA proposed to overcome this tendency through sunlight, public scrutiny and informed analysis. The means created by NEPA’s drafters for requiring agencies to consider the environmental consequences of federal action was Section 102(2)(c)—the environmental impact statement (EIS) requirement. While an informed citizen with an environmental streak may not have heard of NEPA, it is likely that she has heard of environmental impact statements. Even to those who have never had the good fortune (or misfortune) of cracking the spine on one of these documents, the EIS arouses associations with the most voluminous and detailed of government reports.
Yet the EIS requirement was not created to bury bureaucrats in paperwork. Early impact statements were focused and concise (see The First Environmental Impact Statement). Their growth in size and scope will be discussed further in Part Two of this series. At its inception, the EIS requirement was simply intended as the “action forcing” mechanism linking the act’s goals (as stated in Section 101[a] above) with a meaningful change in agency administration. NEPA’s drafters and legislative sponsors knew they could not pass a bill that forced the federal government to adopt environmentally responsible practices across the board. They could, however, pass a bill that made environmental consideration a requirement of administrative decision making. To achieve this consideration, Section 102(c) mandated the following:
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
These requirements are notable in a couple respects. First, the statement must be prepared by a “responsible official” from a lead agency or collection of relevant agencies. This introduced public accountability in environmental decision making. If the official dismissed or minimized environmental concerns, Congress and the public would have someone to blame. The decision maker could no longer hide behind an anonymous and monolithic federal bureaucracy that often intimidated its critics. An EIS was to be a public document, reviewable by the public, interest groups and scientific community. In the decades after 1970, citizen lawsuits and their resulting federal court decisions would become a major factor in the evolution of NEPA.
The second important aspect of the EIS requirement is its preventative character. While NEPA did not have the legal force to explicitly prohibit harmful agency action, the statute certainly requires admission of harmful actions and meaningful consideration of alternative actions. Many NEPA scholars and practitioners view the analysis of project alternatives as the heart of the EIS process. Putting environmental decision making in a precautionary context hopefully leads to prevention of the most harmful actions through their modification at an early stage of project development. With this change, the most environmentally damaging federal projects could no longer be jammed through the approval process through closed-door deal making and logrolling. Senior administrators would now have a meaningful public and analytical check on their decision making, previously unencumbered by environmental concerns.
This first article of two has discussed both the need for the National Environmental Policy Act and core components of the statute. These components include both the goals of the act (Section 101a) and the primary means for achieving these goals (Section 102c, the EIS requirement). Viewed together, they reflect the creation of a new national environmental ethic in both vision and practice. The second article of this two part series will explore the challenge inherent in legislating an ethic. This ongoing challenge will also be related to the recent Gulf oil spill.