Reconsidering NEPA

Indiana Law Journal Volume 96 Issue 3 Article 5 Spring 2021 Reconsidering NEPA Brigham Daniels Brigham Young University Law School, Andrew P. Follett Yale Law School, James Salzman UCLA School of Law, Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Environmental Law Commons, and the Legislation Commons Recommended Citation Daniels, Brigham; Follett, Andrew P.; and Salzman, James (2021) "Reconsidering NEPA," Indiana Law Journal: Vol. 96 : Iss. 3 , Article 5. Available at: https://www.repository.law.indiana.edu/ilj/vol96/iss3/5 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact . Reconsidering NEPA BRIGHAM DANIELS,* ANDREW P. FOLLETT,** JAMES SALZMAN*** The National Environmental Policy Act (NEPA) ushered in the modern era of environmental law. Thanks to its environmental impact statement (EIS) provision, it remains, by far, the most litigated environmental statute. Many administrations have sought to weaken the law. The Trump administration, for example, put into place regulations that strictly limit the EIS process, which the Biden administration seems poised to roll back. For the most part, however, NEPA has shown remarkable staying power and resilience since its passage just over fifty years ago. As a result, its legislative history remains relevant. But the accepted history of NEPA is deeply flawed. By bringing the history to light, this Article makes three contributions. First, relying on both original primary sources and a thorough review of the literature, we provide a nuanced and engaging history of the EIS provision, correcting common misconceptions of the accepted story. Second, we show why understanding this more accurate history of the Act’s key provision can rebut major threats to NEPA and the regulations that govern it, such as those introduced during the Trump administration. Third, our granular history of NEPA provides an ideal experiment to test the accuracy of traditional canons of legislative history. We find that most canons fail to recognize the most critical aspects of NEPA’s history. Positive political theory–derived canons, on the other hand, most accurately capture the actual legislative history. INTRODUCTION ....................................................................................................... 866 I. THE CAMPAIGN TO REMAKE NEPA .................................................................... 869 II. LEGISLATING NEPA .......................................................................................... 876 A. ALMOST NEPA: SENATE BILL 1075 ........................................................ 878 B. NEPA BECOMES NEPA: THE UNTOLD STORY OF SECTION 102 .............. 884 III. INTERPRETING NEPA: ASSESSING EXTRINSIC SOURCE CANONS ..................... 894 A. WHAT HAS NOT WORKED—DOMINANT LEGISLATIVE HISTORY CANONS ...................................................................................................................... 895 1. HIERARCHY OF SOURCES CANONS .................................................. 896 2. HIERARCHY OF PERSONS CANONS .................................................. 899 B. WHAT MIGHT PROTECT NEPA—POSITIVE “VETO GATES” CANONS ...... 904 CONCLUSION .......................................................................................................... 910 * Professor of Law, BYU Law School. ** J.D. Candidate, Yale Law School ‘23. *** Donald Bren Distinguished Professor of Law, UCLA Law School and UCSB Bren School of Environmental Science & Management. 866 INDIANA LAW JOURNAL [Vol. 96:865 INTRODUCTION Signed into law just over fifty years ago, the National Environmental Policy Act (NEPA)1 was the first modern environmental statute2 and remains among the most important. Its core requirement is simple—an environmental impact statement (EIS) must be prepared for major federal actions significantly affecting the human environment.3 NEPA has become the legal tool of choice in a wide range of environmental issues4—indeed, it has resulted in more litigation than all other environmental laws combined. Widely admired, NEPA has served as the model for similar laws in more than 180 jurisdictions worldwide.5 Near the end of its term, the Trump administration set its sights on this foundational Act, proposing regulations intended to weaken significantly the environmental impact analysis requirement through restrictive page limits and time frames. While the Biden administration has made reversal of these and other NEPA changes an early priority,6 it will take some time before the Biden administration can sort through all the issues the changes adopted by the Trump administration. Even once this is accomplished, there is no reason to assume a future like-minded administration will not seek identical or even more far-reaching changes. Additionally, in facilitating the development of new energy or infrastructure projects, the Biden administration might keep streamlining the EIS on the table, at least in part. In providing thorough research to rebut too much deregulation in the future (while providing boundaries for positive streamlining by more environmentally friendly administrations), this Article focuses closely on the boundaries and meaning of NEPA’s text and legislative history, showing that it has been misunderstood in important respects. 1. National Environmental Policy Act, Pub. L. No. 91-190, 83 Stat. 852 (1970). 2. DAVID M. DRIESEN, ROBERT W. ADLER & KIRSTEN H. ENGEL, ENVIRONMENTAL LAW: A CONCEPTUAL AND PRAGMATIC APPROACH 121 (2d ed. 2011); JAMES RASBAND, JAMES SALZMAN, MARK SQUILLACE & SAM KALEN, NATURAL RESOURCES LAW AND POLICY 291 (3d ed. 2016); J.B. RUHL, JOHN COPELAND NAGLE, JAMES SALZMAN & ALEXANDRA B. KLASS, THE PRACTICE AND POLICY OF ENVIRONMENTAL LAW 406 (3d ed. 2014); JAMES SALZMAN & BARTON H. THOMPSON, JR., ENVIRONMENTAL LAW AND POLICY 321 (3d ed. 2010); Michael B. Gerrard, Climate Change and the Environmental Impact Review Process, 22 NAT. RES. & ENV’T 20 (2008). 3. ELIZABETH GLASS GELTMAN, MODERN ENVIRONMENTAL LAW: POLICY AND PRACTICE 9 (1997); ROBERT V. PERCIVAL, CHRISTOPHER H. SCHROEDER, ALAN S. MILLER & JAMES P. LEAPE, ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 857 (6th ed. 2009); WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 801–09 (2d ed. 1994); PHILIP WEINBERG & KEVIN A. REILLY, UNDERSTANDING ENVIRONMENTAL LAW 56 (1998); H. Paul Friesema & Paul J. Culhane, Social Impacts, Politics, and the Environmental Impact Statement Process, 16 NAT. RESOURCES J. 339 (1976). 4. See ZACHARY A. SMITH, THE ENVIRONMENTAL POLICY PARADOX (4th ed. 2004). 5. Tseming Yang, The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law, 70 HASTINGS L.J. 525, 526 (2019) (...truncated)