The National Environmental Policy Act of 1969: Toward a Substantive Standard of Review

Introduction

Although the National Environmental Policy Act (NEPA) has been in force for five years and the brief provisions of the Act have been litigated in several hundred cases, the substantive content of NEPA remains undefined. The early leading case under the Act required procedural compliance with section 1024 but only suggested the substantive policy which the procedural duties were designed to implement. Sub-sequently, almost all of the NEPA cases have raised questions of compliance with the procedural prerequisites and the integrity of the procedural process has become para-mount in judicial review. Correspondingly, the courts have been reluctant or unwilling to engage in a review of substantive compliance with the Act.8 This reluctance extends beyond the traditional judicial caution against substituting the court’s judgment for that of the agency. One circuit has squarely held that judicial review of substantive compliance is precluded. Consequently, there has been scant judicial articulation of the Act’s substantive mandate.

The judicial emphasis on procedural compliance has resulted in a stringent standard of review which in turn has elicited criticism over the difficulty of achieving full compliance with NEPA. Efforts have been made to exempt some categories of agency action from NEPA’s requirements and Congress has responded by immunizing construction of the Alaskan pipeline from judicial review under NEPA. On the other hand, one noted environmental law scholar has stated that the procedural reform wrought by judicial application of NEPA is ineffective, except to increase the paper-work necessary to obtain approval for agency actions.

Certain legislative history of NEPA suggests that one of NEPA’s sponsors felt that agencies charged with environmental protection responsibilities would influence the decisions of agencies that had traditionally ignored the effects of environmental harm. However, the interagency review required under NEPA appears to have had little effect on agency decisions. The agencies themselves have resisted the procedural obligations imposed by NEPA and, with the exception of the Atomic Energy Commission have not developed any criteria for evaluating the significance of environmental harm. The Council on Environmental Quality, charged with overseeing the implementation of NEPA, likewise has not developed or suggested any standard for determining the weight to be accorded environmental harm in the process of making agency decisions.

Despite the dearth of articulation of NEPA’s substantive commands, two Circuit Courts of Appeals have held that they have the power to review substantive compliance with the Act. Both courts have stated that the compliance is reviewable under traditional standards of the Administrative Procedure Act. But neither has explained how APA review standards are to be applied in the face of NEPA’s unarticulated substantive policy.

This Note proceeds from the premise that formulation of substantive standards for NEPA is both desirable and required. Part II examines the difficulty agencies encounter in attempting to meet the Act’s procedural requirements, and the problem posed by judicial review of procedural compliance, when neither the agencies nor the judiciary defines the substantive standard. Part III explores the current efforts to implement NEPA’s substantive policy in its nascent condition and the difficulties faced when NEPA is construed as creating a substantive standard. A fuller explanation of the workings of the substantive standard derived from an economic analysis is presented in Part IV. Part IV concludes with a discussion of the roles of the agencies and the courts in fostering the articulation and implementation of NEPA’s substantive standard.

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