The National Environmental Policy Act: An Agenda for the Future

by Lynton Keith Caldwell

Overview

"The National Environmental Policy Act has grown more, not less, important in the decades since its enactment. No one knows more about NEPA than Lynton Caldwell. And no one has a clearer vision of its relevance to our future. Highly recommended." —David W. Orr, Oberlin College

What has been achieved since the National Environmental Policy Act was passed in 1969? This book points out where and how NEPA has affected national environmental policy and where and why its intent has been frustrated. The roles of Congress, the President, and the courts in the implementation of NEPA are analyzed. Professor Caldwell also looks at the conflicted state of public opinion regarding the environment and conjectures as to what must be done in order to develop a coherent and sustained policy.

Product Details

ISBN-13:	9780253028464
Publisher:	Indiana University Press
Publication date:	02/22/1999
Sold by:	Barnes & Noble
Format:	eBook
Pages:	234
File size:	664 KB
Age Range:	18 Years

About the Author

Lynton Keith Caldwell is Arthur F. Bentley Professor Emeritus of Political Science and Professor of Public and Environmental Affairs at Indiana University, active in environmental and science policy research. He is noted as one of the principal architects of the National Environment Policy Act of 1969 and an "initiator" of the environmental impact statement. He has published more than 250 articles and monographs and twelve books, including In Defense of the Earth (Indiana University Press, 1972).

Read an Excerpt

The National Environmental Policy Act

An Agenda for the Future

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By Lynton Keith Caldwell

Indiana University Press

Copyright © 1998 Lynton Keith Caldwell
All rights reserved.
ISBN: 978-0-253-02846-4

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CHAPTER 1

Environmental Policy: Values and Perceptions

TO DECLARE A NATIONAL POLICY WHICH WILL ENCOURAGE PRODUCTIVE AND ENJOYABLE HARMONY BETWEEN MAN AND HIS ENVIRONMENT; TO PROMOTE EFFORTS WHICH WILL PREVENT OR ELIMINATE DAMAGE TO THE ENVIRONMENT AND BIOSPHERE AND STIMULATE THE HEALTH AND WELFARE OF MAN; TO ENRICH THE UNDERSTANDING OF THE ECOLOGICAL SYSTEMS AND NATURAL RESOURCES IMPORTANT TO THE NATION; AND TO ESTABLISH A COUNCIL ON ENVIRONMENTAL QUALITY.

— PURPOSE: THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, SECTION 2.

With this declaration of purpose the 91st Congress sought to establish a national policy responsive to values widely held in American society and endangered by the deteriorating quality of the environment. In a hearing on April 16, 1969, before the Senate Committee on Interior and Insular Affairs, on S.1075 (the bill which evolved to become NEPA), Committee Chairman Henry M. Jackson offered the following statement:

I introduced this measure because it is my view that our present knowledge, our established policies, and our existing institutions are not adequate to deal with the growing environmental problems and crises the nation faces.

The inadequacy of present knowledge, policies, and institutions is reflected in our nation's history, in our national attitudes, and in our contemporary life. We see this inadequacy all around us: haphazard urban growth, the loss of open spaces, strip-mining, air and water pollution, soil erosion, deforestation, faltering transportation systems, a proliferation of pesticides and chemicals, and a landscape cluttered with billboards, powerlines, and junkyards.

Traditional government policies and programs weren't designed to achieve these conditions. But they weren't designed to avoid them either. And, as a result, they were not avoided.

As a nation, we have failed to design and implement a national environmental policy which would enable us to weigh alternatives, and to anticipate the undesirable side effects which often result from our ongoing policies, programs and actions.

Today it is clear that we cannot continue to perpetuate the mistakes of the past. We no longer have the margins for error and mistake that we once enjoyed.

It was in view of this background and these considerations that I introduced S.1075, my bill to establish a national environmental policy. The purpose of this legislation is threefold: First, to establish a national policy on the environment; Second, to authorize expanded research and understanding of our natural resources, the environment, and human ecology; and Third, to establish in the Office of the President a properly staffed Council of Environmental Quality Advisors.

In legislating this intent the Congress faced a need not only to respond to the values underlying the growing concern over a deteriorating environment but as much as possible to reconcile and harmonize the diversity of values and concepts present in American society that related to the environment. Not everyone saw environment in the same light or valued it in the same way. The reconciliation of differences regarding the place of the environment in public policy thus became — and remains — a problem that is political, juridical, administrative and, at its base, ethical. The principles and purposes declared by NEPA are widely shared and offer few causes for conflict. It is in their implementation (chiefly in other environmental statutes) that political difficulties arise when values and interests conflict. Commenting on the Report of the Conference Committee on S.1075 before its final passage, Senator Jackson observed that NEPA "provides a statutory foundation to which administrators may refer ... for guidance in making decisions which find environmental values in conflict with other values."

Nearly 30 years after enactment of NEPA (S.1075), an implementing bill (S.399), introduced by Senator John McCain of Arizona, The Environmental Policy and Conflict Resolution Act (Public Law 105-156), was signed into law by President Clinton on February 11, 1998. The Act creates the United States Institute for Environmental Conflict Resolution "to assist the Federal Government in implementing section 101 of the National Environmental Policy Act of 1969." The legislation authorizes federal agencies to use the Institute in matters of disputes or conflicts relating to the environment, public lands, or natural resources. The Institute is associated with the Center established by the Morris K. Udall Foundation at the University of Arizona. The chairman of the CEQ is designated as a non-voting member of the Foundation.

TO DECLARE A POLICY

Basic to an understanding of NEPA is that it is a declaration of policy with action-forcing provisions — a policy act — not a regulatory statute comparable to environmental legislation relating to air, water, hazardous substances, endangered species, wetlands, wilderness, and historic preservation. Also important to its comprehension is its place in a progressive worldwide shifting in values during the latter half of the 20th century.

The NEPA Purpose was restated in the Declaration which followed: "to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." The Congress legislates only for the United States, but its acts cover the actions of individuals and agencies within its jurisdiction, regardless of whether the impact of those actions fall within or beyond its territorial limits. The broad scope of NEPA is "to promote efforts which will prevent or eliminate damage to the environment and the biosphere."

Interpreting this commitment, Senator Jackson declared "that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind." From these statements a logical inference might be drawn that NEPA declared a policy for actions by the government of the United States, extending to those programs and projects of Federal agencies that have environmental impact on the whole Earth and its inhabitants. The environment and the biosphere for which NEPA declares a responsibility are planetary in scope. America is not a "sphere," and "mankind" is far more inclusive than the people of the United States. It seems clear that the drafters of NEPA intended it to have a global relevance. A successful policy to "encourage productive and enjoyable harmony between man and his environment" must reconcile and mediate a diversity of values at the national level before the United States can contribute cooperation and leadership to world environmental affairs.

EMERGING ENVIRONMENTAL CONSCIOUSNESS

The state of the environment as an international concern emerged during the latter half of the 20th century, initially in Western Europe and North America and spread globally, leading to the United Nations Conference on the Human Environment in 1972 and again in 1992 to the United Nations Conference on Environment and Development. This growth of environmental consciousness was prominent within a larger transformation in social values, but required reconciliation with traditional assumptions in which environmental quality — aside from public health and sanitation (e.g. urban smog and sewage) had been confined largely to limited urban aesthetics (e.g. city planning and beautification). This transformation is still ongoing and some decades may be required before it becomes universal.

Recognition of environmental influences has been slow and uneven because of (1) insufficient understanding of environmental interrelationships, (2) concepts contrary to traditional assumptions, and (3) failure to distinguish between conceptualizing the environment in its totality and those aspects of the environment amenable to human management. This latter distinction is fundamental to environmental impact assessment — to ascertain what aspects of the environment interact with human actions and to what effect. Differences in comprehension of the environment complicate implementation of environmental policies. For example, a professor of environmental resources declared, "My position on environment is simple, it is that there isn't one. There are as many environments as there are living things in the world; each has its own." True, each living and inanimate thing has a unique environmental relationship. But all are affected by environmental forces and phenomena — ubiquitous and cosmic. It is a major misconception to regard personal or particular aspects of the environment in disregard of the larger context of the whole insofar as its relevant effects can be ascertained.

In the UN Conferences, behavior in relation to the environment was widely recognized as encompassing local to international dimensions (e.g. think globally, act locally). The natural world is a complex total system organized politically as an artificial system of separate sovereign nations. There being no worldwide legislative authority, environmental policy for all mankind and the planet can be initiated only by the concerted action of national governments. International environmental policy requires the collective action of nations, but it is necessary that individual governments act for their own nations in order to collaborate with others. National action may precede international action, but it may sometimes follow in response to international initiatives.

Although specific aspects of environmental policy had been addressed in the United States and in other countries (as in the British Town and County Planning Acts and land use regulations in the Netherlands), the United States appears to have been the first nation to respond comprehensively to an insistent (though inchoate) public demand for action to protect the quality of the environment. Comprehensive legislation was needed, but the Congress had no model or precedent for a national environmental policy. The closest similarity appeared to be the Employment Act of 1946, which dealt with a more definable aspect of the economy. The principal impediment to formulating, legislating, and administering environmental policy is perception — the differences in the ways in which people understand the meaning and significance of "environment." For example, environmental policy has been variously conceived as primarily an antipollution issue, has been confused with conservation of natural resources, has aroused controversy over rights of property owners, and has led to political conflict over these and many other areas of policy. The values which people acknowledge may reflect traditional principles, but practical interests are limited by lifetimes and personal circumstances. Principled values and practical interests are often segregated, if not conflicted. Reconciliation of environmental values and economic interests is a major objective of NEPA. But its achievement is a long-term process, one which is — from a pessimists' perspective — too long to avert avoidable disasters toward which humanity is tending.

The need for action to reverse environmental deterioration was voiced by numerous critics during the 1950s and 1960s, but the means to action were not systematically addressed. However, in April 1963 with the article "Environment: A New Focus for Public Policy" (Public Administration Review, Vol. 23), I called for a reconceptualization of the environment in relation to the responsibilities and functions of government. In March 1966 I followed with the article "The Human Environment: A Growing Challenge to Higher Education" (Journal of Higher Education, Vol. 37). It seemed evident that if a major change in national values and priorities were to be effective, changes in public administration and education would be necessary. Changes in popular values anticipate changes in public institutions.

Early in 1968, through an arrangement between Russell Train, president of the Conservation Foundation, and Senator Jackson, I was asked to assist in developing the substance of a national environmental policy act. In a report prepared for the Senate Interior Committee, with the assistance of William Van Ness, I offered the following observations regarding legislation that would respond to the national concern:

To be effective, a national policy for the environment must be compatible and consistent with many other needs to which the Nation must respond. But it must also define the intent of the American people toward the management of their environment in terms that the Congress, the President, the administrative agencies and the electorate can consider and act upon. A national policy for the environment — like other major policy declarations — must be concerned with principle rather than with detail; but it must be principle which can be applied in action. The goals of effective environmental policy cannot be counsels of perfection; what the Nation requires are guidelines to assist the government, private enterprise and the individual citizen to plan together and to work together toward meeting the challenge of a better environment.

A year later NEPA did provide principles, short of operational guidelines, to assist the government, private enterprise, and the individual citizen to plan together and work together toward meeting the challenge of a better environment. But implementation of the principles set forth in the NEPA Declaration was confronted by the reality of significant differences in people's perceptions of the environment. Although opinion analysis confirmed a strong concern for environmental protection and improvement, individuals held differing values, beliefs, and interests regarding the role of government and the importance of the environment in relation to other public priorities. NEPA legislated a declaration of broadly conceived principles intended to elevate attitudes and actions relating to the environment to the level of national policy.

The Congress could not impose the values implicit in its declaration upon individual Americans, and this was not its purpose. It might raise the national consciousness concerning the environment, but it could mandate conformity with NEPA values on only the Federal agencies. Actions by the Federal agencies today extend throughout the national economy and have both direct and indirect impacts upon the environment. Almost every aspect of the economy is affected by public law and administration, e.g. agriculture (including forestry), energy, commerce, transportation, health and safety, education, science research and development, and military defense among the more prominent.

The environment emerged as a significant concern for public policy after 1969 but was subordinate to legacies of a past in which economic development of land and all other natural resources was the nation's primary goal. Government programs and agencies were established to "develop" the nation's material assets; education and research were enlisted with public support to advance development in farming, forestry, mining, and engineering. Professional attitudes and values in these (as in other fields of practice, e.g. law and medicine) were instilled in the schools and applied in the administration of government programs. And so it was necessary in realizing national environmental policy objectives to lay unequivocal mandatory requirements on the Federal bureaucracies whose inbred attitudes were resistant to the new environmental objectives. But bureaucracies everywhere and historically have been notoriously artful in evading policy prescriptions which they perceive as disadvantageous to their interests.

VALUES AND PERSPECTIVES

Problems with communication and consensus in environmental policy arise in those diverse and often conflicting ways in which people and their public officials perceive and evaluate "the environment." What ought to be generally understood (and is not) is that NEPA is basically legislation about values. But NEPA does not seek to impose values. The 91st Congress did what it was competent to do — it set forth environment-related values in the form of principles to guide the actions of the Federal agencies in pursuit of their missions. Environmental values implicit in NEPA are preferred relationships between people and their surroundings, which today may extend from home to the whole Earth. The term "value" cannot be precisely defined, but it expresses an attitude rather than identify an object or condition. But legislation to declare and implement environmental values has not been pleasing to some Americans. There are values in American society, some strongly held, that are counteractive to environmental quality values and concerns. While they do not cancel out a widespread concern for environmental quality and sustainability, they retard the achievement of a national consensus sufficient to extend NEPA principles to programs for action. A publication of the conservative American Enterprise Institute severely criticized NEPA as "special values legislation" not representative of the values of most Americans. This opinion, expressed by "antienvironmentalists," contrasts unaccountably with conservative emphasis on "family values" and values associated with traditional morality for which government intrusion into private lives is condoned — but regulation of economic activities is often condemned.

Because of the scope and reach of Federal action in the American economy, the effects of a policy mandating the implementation of environmental values in Federal actions could multiply throughout American society. Beyond America, and as early as the 1960s, environmental consciousness was beginning to emerge throughout the world. In 1968 while the legislation antecedent to NEPA was being drafted, the first world conference on the biosphere, sponsored by a number of international agencies under the leadership of UNESCO, was occurring in Paris. The drafters of NEPA could not have foreseen the internationalizing of the environmental movement in the ensuing decades, but Senator Jackson recognized America's responsibilities in relation to the world environment, and NEPA may have been the first national statute to declare a purpose "to promote efforts which will prevent or eliminate damage to the environment and biosphere." A worldview of man's place in nature implies the need for a common consensual set of environmental values for all mankind.

(Continues...)

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Excerpted from The National Environmental Policy Act by Lynton Keith Caldwell. Copyright © 1998 Lynton Keith Caldwell. Excerpted by permission of Indiana University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Preface
Acknowledgments
Introduction
1. Environment: Values and Perceptions
2. NEPA: Enactment and Interpretation
3. Environmental Impact Assessment
4. Integrating Environmental Policy
5. International Environmental Policy
6. NEPA and the Global Environment
7. Future Directions: Beyond NEPA
Summation
Notes and References
Appendix: The National Environmental Policy Act of 1969
Index