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NEPA: Past, Present, and Future
by Alvin L. Alm
[EPA Journal - January/February 1988] NEPA established a national policy to protect the environment the same year Earth Day was first celebrated.
The National Environmental Policy Act (NEPA), signed into law on the first day of 1970, stands in stark contrast to other environmental legislation enacted in the 1970s and 1980s. Beginning with the Clean Air Act, passed in late 1970, environmental legislation became increasingly prescriptive, detailed, and complex. NEPA, on the other hand, was short, simple, and comprehensive. It established a national policy to protect the environment, created a Council on Environmental Quality (CEQ), and required that environmental impact statements be prepared for major federal actions having a significant effect on the environment. This simple Act can be compared to the current crop of environmental laws that take up hundreds of pages and generate bookshelves worth of regulations. With little statutory guidance, the newly created CEQ set about building a staff and staking out an agenda. CEQ's highest priority was to become the federal environmental policy arm. The environmental impact statement and annual report requirements were both lower priority.
CEQ made major advances in the policy area. During the early 1970s, CEQ developed a comprehensive environmental program which included, among others, amendments to the Federal Water Pollution Control Act, the Toxic Substances Control Act, foreruners to the Resource Conservation and Recovery Act (RCRA), and the Safe Drinking Water Act and amendments to the pesticides legislation. During its formative years, CEQ laid the groundwork for almost all current environmental legislation except for Superfund and asbestos control legislation.
CEQ also developed guidelines for the environmental impact statement process. At the time they were developed, CEQ staffers had no idea how revolutionary the environmental impact statement process would become.
One very early event substantially influenced EPA's role in reviewing other federal agency actions. It happened when the U.S. Department of Transportation refused to release agency comments on the environmental impact statement for the proposed Supersonic Transport. Congress took subsequent action. It added Section 309 to the 1970 Clean Air Act, which stated that EPA must comment on all EISs and that EPA's comments must be made public and would be transmitted to CEQ for action if the environmental impacts were "environmentally unsatisfactory." Under this Clean Air Act mandate, EPA set up a structured program for reviewing and rating federal agency projects that continues to this day.
Concurrent with the creation of NEPA was the founding of new environmental litigation organizations--namely the Natural Resources Defense Council and the Environmental Defense Fund. NEPA was like grain dust to the environmental litigators' match. These and other environmental and citizen groups used the NEPA tool to sue a host of federal agencies for noncompliance with NEPA. The courts generally came down on their side.
The initial impacts were dramatic. The Atomic Energy Commission's nuclear licensing process was stopped dead in its tracks for more than a year as a result of the Calvert Cliffs decision. Outer Continental Shelf oil drilling was held up until a proper environmental impact statement was prepared. Controversy over the Alaska Oil Pipeline was brought to a close only when Congress decreed the environmental impact statement process was completed.
NEPA had other unexpected results. The Courts interpreted NEPA to cover not only direct impacts from federal projects and activities but also indirect effects. These indirect effects might include increased traffic or secondary development from projects. For example, the initial proposal for a John F. Kennedy library at Harvard University was dropped when the environmental impact statement projected increased congestion and air pollution.
Some have granted that the NEPA process has also been misused at times. For example, environmental impact statements have been used to challenge public housing projects. The real concerns in these cases were only partially environmental; in many, they were predominantly neighborhood issues; sometimes, they were racial issues.
By the middle of the 1970s, environmental concerns were routinely being built into government actions. In most cases, a major defeat or slow-down of a project precipitated action. Environmental staffs were formed, consultants mobilized, an line staff became more sensitive to environmental concerns. Also, through the last part of the 1970s and during the 1980s, the composition of government projects and actions changed. Lower energy prices created less demand for a host of energy projects, particularly electric powerplants. The federal highway system was essentially complete; most of the funds were used to upgrade existing routes.
NEPA's lack of notoriety may well be its measure of success. By and large, government agencies have institutionalized environmental quality concerns in decision-making. Few projects proceed today that provoke an environmentally unsatisfactory rating from EPA. Many projects contain environmental safeguards that would not have resulted without the NEPA prod.
In some cases, generic programs have been fundamentally altered because of NEPA concerns. For example, EPA's sewage treatment grant strategy shifted from one of encouraging large regional facilities to one that encouraged smaller units. This strategy resulted in large part from concerns over stimulating urban sprawl and development in sensitive areas by financing long interceptors into undeveloped areas.
The CEQ, created by NEPA, played a major policy and education role, as well as becoming the caretaker of the environmental impact process. During its early years, CEQ was the undisputed policy arm of the government's environmental apparatus. Its annual reports were authoritative and well respected. Not only did the CEQ develop major pollution control legislation and policy, but it also addressed a range of non-pollution issues, such as the urban environment, clearcutting, predator control, and off-road vehicle use.
The massive growth of EPA, coupled with large percentage staff cuts at CEQ, has reduced the Council's policy role. EPA now takes the lead in many areas which during the early years would have been CEQ's province. CEQ still provides coordination of some large programs, such as the National Acid Precipitation Action Plan, but these types of responsibilities have been rarer in recent years.
Overall, NEPA has been a quiet but effective success after turbulent and dynamic beginning. CEQ continues to play a positive, although diminished, role. The CEQ annual reports are still the best overall review of environmental issues and trends. The NEPA process has wrought a major change in the way government deals with environmental issues, and this model has been replicated in whole or in part in 23 states. All in all, NEPA has codified an important national policy commitment and created helpful procedural and organizational tools to further that policy objective.
Alm was Staff Director for the President's Council on Environmental Quality from 1970 to 1973. He served as EPA Assistant Administrator for Planning and Management from 1973-77, and as EPA Deputy Administrator from 1983-85.