In Pursuit of NEPA's Promise: The Role of Executive Oversight in the Implementation of Environmental Policy
59 Pages Posted: 7 Dec 2014
Date Written: 1989
The NEPA process does not end with the preparation of satisfactory impact statements. NEPA requires more than just the preparation of paperwork, even excellent paperwork. It requires an action agency to come to terms with what was learned in an EIS, to balance competing policy interests, and to make a decision that, to the fullest extent possible, furthers the goal of environmental protection. The courts, however, have declined to supervise that balancing process. The executive branch through the U.S. EPA and the Council on Environmental Quality, on the other hand, possess the authority to oversee the substantive implementation of NEPA through section 309 of the Clean Air Act. The full potential of this authority, however, remains untapped.
This article begins with a thorough exploration of the legislative history of NEPA and section 309 of the Clean Air Act in order to discern in a more concrete way what Congress intended to achieve through NEPA and how executive branch oversight was intended to serve those ends. After examining the limited manner in which the executive branch has used its oversight authority, the article explores a number of administrative reforms that could help create a more effective link between impact statements, agency decisionmaking, and what agencies actually do. In short, the article argues that EPA’s watchdog role should extend to records of decision and the implementation of the commitments found in those decisions.
Keywords: environmental law, NEPA, environmental impact statement, environmental impact assessment, executive branch oversight, environmental policy
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