Posted on January 13, 2022 by Ezekiel J. Williams
Congress passed, and President Richard Nixon signed, the National Environmental Policy Act (“NEPA”) in 1970. The legislation is deceptively simple, taking up less than six pages upon enactment. It requires a federal agency contemplating taking a “federal action” to look before it leaps. That is, before taking the action, the statute requires a federal agency to prepare in a public process a document disclosing the potential consequences to the environment of the proposed action, the consequences of not taking action, and “reasonable alternatives.”
Much has been made of NEPA over its five-decade life. One label is that it is the “Magna Carta” of environmental protection, a description that hints at, but does not directly describe, the strange paradox that animates it. The stated goal of the legislation is to protect the environment yet the statute does not itself forbid taking action that harms the environment. The statute does not even require a federal agency to reduce harm to the environment. The statute only requires agencies to disclose, publicly, the potential consequences of federal actions the agencies may – or may not – take prior to making a decision.
But the NEPA paradox has power: an agency that must look before it leaps, and disclose that look to the public, is likely to leap differently than it would absent the public disclosure. The NEPA paradox has proven influential: more than fifteen states and 100 countries have adopted some form of environment impact assessment law modeled on NEPA, although practices vary widely.
NEPA is a terrific example of the power of procedural rights that underly federal (and state) administrative law. NEPA, like the federal Administrative Procedure Act (“APA”), is purely procedural, rather than substantive. NEPA prescribes procedures and public disclosure but eschews any substantive obligations (for instance any requirement that a federal agency minimize harm to the environment).
Careful scrutiny of the APA reveals the critical role that NEPA has come to play in the machinery of the executive branch of the federal government. The APA divides agency action into two hemispheres: rulemaking and adjudication. Rulemaking is what it sounds like: an agency’s process for adopting or amending rules designed to implement, interpret or prescribe law or policy. So far so good.
Adjudication is deceptively elastic. The APA defines adjudication as an agency disposition “of an agency in a matter other than rulemaking.” Consider that for a moment: the APA defines as “adjudication” all forms of agency action that are not rulemaking. Simply put, nearly every form of federal action that may trigger NEPA is also classified as an adjudication within the taxonomy of the APA. Federal permits, decisions, actions, approvals, licenses and virtually any other species of federal action that may be subject to NEPA are also adjudications under the APA. (Ignore, for purposes of this essay the distracting fact that rulemakings may also be federal action subject to NEPA).
So what? The APA sets forth a binary procedural dichotomy for adjudications (and rulemakings) of either maximum process for “formal” adjudications but virtually no required process for “informal” adjudications. Formal adjudications (and rulemakings) require maximum process with trial-type proceedings, public hearings “on the record,” witnesses, cross-examination, etc. Informal adjudications (and rulemakings) have very little process.
But for the last nearly five decades, virtually no federal agency makes its decisions (adjudications) by following APA formal procedures. This is a consequence of the U.S. Supreme Court’s 1973 decision (three years after enactment of NEPA) in United States v. Florida East Coast Railway Company. There, the Supreme Court extirpated formal procedures under the APA, leaving informal procedures as the default. All one needs to know is that the Supreme Court ruled that unless an agency’s organic act requires in very specific language a formal rulemaking (or by implication, a formal adjudication), the APA only requires an agency to follow the minimum informal procedures.
Virtually no agency statute possesses the magic words. Because so few statutes call for formal procedures with the requisite words, the elaborate, trial-type formal APA procedures are, as Justice Thomas quipped, the “Yeti” of federal administrative law, rumored to exist but never seen.
The aftermath of Florida East Coast Railroad is a “feast or famine” world of APA procedure. But it is never a feast and always a famine. Maximum APA procedures hardly ever apply; the statutory minimum procedures define the perennial ceiling as a practical matter.
The consequence is: federal agencies conduct their business through the minimum APA informal rulemaking and adjudication procedures. Informal rulemaking procedures are the notice, comment, Federal Register process with which all are familiar. For whatever reason, citizens, industry, and affected parties appear to have generally accepted informal notice-and-comment rulemaking as procedurally sufficient (although it is only the statutory minimum process). Informal rulemaking is so generally accepted that some may erroneously describe the notice-comment-Federal Register process as formal rulemaking.
This is the federal procedural landscape against which NEPA snaps into focus. In the post-Florida East Coast Railway procedural famine world of minimum APA procedures, NEPA procedures loom large.
The big deal with NEPA is: without it, virtually no mandatory procedures tether the federal executive branch to its citizens in making day-to-day government decisions. Apart from NEPA, no generally-applicable mandatory statutory procedures apply to most agency decision making. The informal adjudication provisions of the APA apply, but they are a nothingburger, providing no meaningful procedures. Like it or not, and acknowledging the statute’s actual or perceived inefficiencies, NEPA procedures interject the public into government decision making and force agencies to disclose their actions in advance. That is a role that the federal APA decidedly does not play. Nor does any other statute of general applicability function in that manner at the federal level.
Recognizing the critical role that NEPA plays in the decision making machinery of the federal executive branch explains a lot. When one administration proposes to revise the federal NEPA regulations, uproar and litigation follows. When another administration proposes to revise the revisions, more controversy and opposition.
The Supreme Court famously observed less than five years after passage of the APA that “it settles long continued and hard fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.” Although perhaps not by intent or design, the same is true today of NEPA. That is fitting for a “Magna Carta.”