Imperfect protection: NEPA at 35 years - Spheres of Influence

Environmental Health Perspectives, April, 2004 by Harvey Black

Because the courts often figure in NEPA, with challenges being made either to decisions not to write EISs or to the adequacy of EISs that are written, some observers and participants in the NEPA process argue for a change in that arena. Federal judges are not environmental experts, says Burnett, and so are not qualified to judge such cases. "Congress should set up a court system that is for NEPA cases," he says, with judges to be appointed based on their scientific expertise.

"Courts don't like science--that, to me, is really the problem," says Narayan, who has litigated under NEPA. "Courts are not willing to say an agency is making the wrong scientific judgment." Narayan agrees with Burnett on the advantages of having a specialized court to deal with NEPA cases, similar in theory to specialized courts dealing with patent cases.

But the bottom line, in the view of some, remains protecting the environment. Tamar Stein, an attorney who works on NEPA cases in Los Angeles, would like to see NEPA changed so that federal agencies would have to assess whether mitigation of an environmental impact is feasible. If mitigation measures are indeed feasible, she says, the petitioning agency should be required to implement them.

According to Narayan, agencies already "almost never claim that their actions are less environmentally protective than they feasibly could be." Moreover, he says that NEPA-like statutes in states such as California, New York, and Minnesota require agencies to make their decisions based on what is most protective of the environment. However, their decisions do not necessarily yield greater protection than the federal one.

For example, Narayan notes a 2003 case in California (Neighbors of Cavitt Ranch v. Placer County) concerning the construction of a church, in which a California appeals court refused to assess evidence to determine if adverse environmental effects "had been or could have been mitigated." The court described its goal as only making sure that government decisions took the environmental consequences into account.

One change Dinah Bear, general counsel for the CEQ, would like to see is routine monitoring of the environmental impact of a project after it is completed. There is now no systematic gathering of information after a project is done, she says. Consequently, impact analyses are completed time and again without the benefit of understanding how similar problems have been dealt with and what the impact has been. Full compliance with the administration's direction to agencies to implement environmental management systems would go far in achieving this goal, she says.

Furthermore, the way that environmental analyses are done should be revised, says Bryan. He says both those who prepare the statement and those affected by it should cooperate to determine how an action will reverberate throughout related spheres. "It's not enough to talk about the impacts of timber cuts on soil sedimentation," says Bryan--linkages of sedimentation to water quality, to impacts on aquatic insects, to impacts on the fishery, and to the quality of human life also should be understood and diagrammed.