The Role of Law in Defining Sustainable Development: NEPA Reconsidered
Widener University - Delaware Law School
Widener Law Symposium Journal, Vol. 3, 1998
One powerful response to the complaint that principles of sustainable development are not incorporated into legal systems is what are known as environmental impact statement (EIS) or assessment (EA or EIA) laws, which are now part of the jurisprudence of nearly every country of the world. These laws are central to international organizations and multilateral banking and are prominent expectations in international agreements. These EIS, EIA or EA (hereinafter commonly referred to as EIS) requirements represent a nearly universal adoption of the National Environmental Policy Act (NEPA), enacted in the United States in 1970. At its core, the EIS process requires that each government decision-maker incorporate environmental concerns into the decision-making process at each stage of evaluation so that the final outcome will reflect an integration of all inputs: economic, environmental, political, and social. In theory, EIS laws that are now ubiquitous in national and international legal systems, will, by the gradual, but insistent, accretion of project decisions, inevitably advance the world along the road to sustainable development. Unfortunately, the opposite is true. The widespread existence of NEPA-like laws has created a false sense of environmental security. Instead of advancing sustainability, EIS laws allow a project's unsustainability to be masked by a process that purports to promote sustainability. In the United States, NEPA not only fails to promote sustainable development, it allows decision-makers to dress up unsustainable proposals with a veneer of sustainability, providing a false sense of security that the decisions of the government "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." NEPA, copied throughout the world, has become a worldwide public relations vehicle to paint decisions that significantly affect the environment as sustainable, when nothing could be further from the truth. This article will demonstrate how NEPA fails to require sustainable decisions, and how NEPA can be modified to promote sustainable development.
Number of Pages in PDF File: 58
Keywords: environmental law, environmental impact statements, National Environmental Policy Act, NEPA, environmental assessment, sustainability
JEL Classification: K32
Date posted: November 16, 2012