Administering the National Environmental Policy Act

Abstract

The Council on Environmental Quality (CEQ) was created by the National Environmental Policy Act (NEPA) which, by its terms, casts CEQ as an advisor to the president. President Nixon first ordered CEQ to create “guidelines” for federal agencies discharging their duties under NEPA in 1970. Those guidelines also influenced the courts that first interpreted NEPA in some obvious and some subtle ways. But in 1977, President Carter ordered that CEQ issue rules to bind all agencies, replacing informal guidelines with purportedly binding regulations implementing NEPA. Did that make CEQ NEPA’s “administering” agency? Can presidential action of the sort entitle CEQ’s interpretations of NEPA to Chevron deference? If so, what of the “agencies of the Federal Government” who are charged by the statute in terms with generating its “detailed statements” and pursuing its “national policy”?

In practice CEQ’s rules have been regarded by courts and most action agencies as “law,” at least in a sense. Yet the CEQ rules cover only a tiny fraction of NEPA’s domain. They say virtually nothing about the priorities that decision-makers should set, the types of environmental damage we must strive to avoid, or the ways that environmental risks and benefits should be balanced. The Supreme Court has admonished the lower federal courts repeatedly that it is not the courts’ place to opine on any of that, having done so emphatically and often enough that virtually no one contends otherwise. This leaves NEPA’s “substance” virtually untouched by both CEQ’s interpretation(s) and those of reviewing courts.

CEQ and its rules are more than a curiosity or some errant departure from prevailing doctrine, though. They demonstrate something fundamental about our president’s authority in the administrative state and perhaps even how our presidents exert their most enduring influences therein. If presidential administrations are to utilize NEPA to its fullest potential in setting the nation’s environmental agenda, they would do well to understand how NEPA has been administered to date.

Keywords: delegation, presidential power, deference, judicial review, agencies