Revisiting the Tense Relationship between the U.S. Supreme Court, Administrative Procedure and the National Environmental Policy Act

Abstract

This Article questions whether courts should engage in a more searching review of whether agencies, in fact, have given any weight to the environmental consequences or alternatives of their proposed actions. In other words, might giving zero weight to environmental factors in practice, despite their inclusion in the decision-making documents, violate the arbitrary and capricious standard of the Administrative Procedure Act (APA)? The piece further examines the tension between the role of the APA and the U.S. Supreme Court's NEPA jurisprudence, and concludes that - despite the Supreme Court's crippling of NEPA - an agency's failure to give any weight to project alternatives and environmental concerns in the decision-making process would be unreasonable under the APA, and suggests indicators for determining whether such a failure has taken place.

Keywords: NEPA, APA, arbitrary, capricious

JEL Classification: K23