The Risk in Discretion: Substantive NEPA's Significance

Abstract

The National Environmental Policy Act’s (NEPA) renowned innovation, the impact statement, opened a great deal of agency decision-making to participatory process and judicial review. But the impact statement’s rise has been matched only in how little it has done to advance US agencies towards NEPA’s substantive goal — a more sustainable American society. Pleas to the courts that they retake NEPA’s substantive agenda into their reviews of NEPA routines have run their course. This article charts a path to the creation of a more substantive NEPA grounded in the executive branch.

For much of NEPA’s life, the US has been evolving toward an ever-more express, ever-more intentional focus on the governance of risk. As the tools of risk governance have improved, however, NEPA has not kept pace. NEPA’s subtle structure, aiming to inject environmental risk into every major discretionary decision made by US agencies, has been made into a serious flaw by this failure to adapt. As agencies have marginalized NEPA’s procedural routines, they have been abetted in court from having to improve and harden the analytical methods that would guide them to sounder decisions.

This article outlines a rulemaking for the statute’s quasi-administrator, the Council on Environmental Quality (CEQ), grounded in the president’s authority under Article II. The proposal stems from NEPA’s administration to date, a history of arbitrariness reviews and a now entrenched tangle of case law and agency interpretations of what constitutes a “significant” impact on the human environment. For NEPA to become a more useful tool, the president and CEQ must take affirmative steps to implement NEPA’s more “substantive” provisions. And their full partner in this mission will be the judiciary. Understanding how judicial review has worked with NEPA is, thus, critical to successfully transitioning NEPA to a more substantive future.

Keywords: impact assessment, executive power, risk, risk governance