Rulemaking Doubletake: An Opportunity to Repair and Strengthen the National Environmental Policy Act

Introduction In the middle of the twentieth century, there was a turning point in the United States and around the world in the understanding of the human relationship with the natural environment and natural resources. It was a shift from a perspective of natural resources endlessly available for exploitation to a perspective that natural resources are finite, and conservation and preservation are necessary to ensure that these resources are available for future generations. The accumulation of chronic environmental degradation, such as the unchecked proliferation of pesticides and other toxic chemicals, pollution to the nation’s waters, loss of land to erosion, the loss of public open spaces to development, etc. as well as major events such as the oil spill in Santa Barbara and the Cuyahoga River fire, spurred this shift in perspective. This elevated concern for the environment and natural resources led to the passage of the National Environmental Policy Act of 1969 (“NEPA”), which President Nixon signed into law on January 1, 1970 to launch the Decade of the Environment. NEPA declares that it is the national policy for the federal government to use “all practical means and measures” to ensure a sustainable balance between humans and the environment for “present and future generations,” and it requires all federal agencies to examine the environmental impacts of their actions, to consider alternative actions, and to make that information available to the public. NEPA also established the Council on Environmental Quality (“CEQ”) under the Executive Office of the President to lead research and policy on environmental quality issues and to ensure federal agencies are meeting their requirements under NEPA to consider the environmental impacts of their actions