NEPA in an Era of Economic Deregulation: A Case Study of Environmental Avoidance at the Interstate Commerce Commission
By Charles H. Montange
INTRODUCTION
This litigation presents a history of foot dragging by the ICC, as other parties to proceedings before it, including other federal agencies, have attempted to prod it into compliance with the National Environmental Policy Act (NEPA) . . . . The Commission has responded to the adverse comments by papering over the defects they identify, rather than dealing with the substance of the deficiencies.
On January 1, 1970, President Nixon signed into law the National Environmental Policy Act of 1969 (NEPA). NEPA, the “Magna Carta of the environmental movement” and “our basic national charter for the protection of the environment,” requires federal agencies “to the fullest extent possible" to consider the environmental impact of their significant actions, to weigh alternatives, and to take measures to minimize adverse environmental impacts. The conventional wisdom is that NEPA has been successful in reforming federal agency decision-making, and that the focus should now shift from enforcing the substantive provisions of the Act to reducing the paperwork generated by it. This view is erroneous. Rather, an increasingly hesitant judiciary has deprived the statute of substantive content and has reduced it to a half-heartedly enforced disclosure requirement. As a result, federal agencies are increasingly failing to ameliorate the environmental consequences of their actions when making substantive decisions.
Because the environmental stakes are high, it is no longer appropriate simply reiterate unexamined claims or to assume that NEPA has been a success. On this twentieth anniversary of NEPA, it is vitally important to confront the question of whether federal agencies are conforming to NEPA, or instead, shunning their obligations under the umbrella of a complacent judiciary. After briefly describing NEPA's overall rise and fall, this article focuses on NEPA at the Interstate Commerce Commission (ICC). The ICC provides an excellent example of administrative avoidance of environmental regulation during a period of economic deregulation. Further, the ICC's success at avoiding NEPA illustrates the cooperative spirit of the judiciary. Finally, a review of NEPA at the ICC provides insights into what must be done to reinvigorate the statute.
This litigation presents a history of foot dragging by the ICC, as other parties to proceedings before it, including other federal agencies, have attempted to prod it into compliance with the National Environmental Policy Act (NEPA) . . . . The Commission has responded to the adverse comments by papering over the defects they identify, rather than dealing with the substance of the deficiencies.
On January 1, 1970, President Nixon signed into law the National Environmental Policy Act of 1969 (NEPA). NEPA, the “Magna Carta of the environmental movement” and “our basic national charter for the protection of the environment,” requires federal agencies “to the fullest extent possible" to consider the environmental impact of their significant actions, to weigh alternatives, and to take measures to minimize adverse environmental impacts. The conventional wisdom is that NEPA has been successful in reforming federal agency decision-making, and that the focus should now shift from enforcing the substantive provisions of the Act to reducing the paperwork generated by it. This view is erroneous. Rather, an increasingly hesitant judiciary has deprived the statute of substantive content and has reduced it to a half-heartedly enforced disclosure requirement. As a result, federal agencies are increasingly failing to ameliorate the environmental consequences of their actions when making substantive decisions.
Because the environmental stakes are high, it is no longer appropriate simply reiterate unexamined claims or to assume that NEPA has been a success. On this twentieth anniversary of NEPA, it is vitally important to confront the question of whether federal agencies are conforming to NEPA, or instead, shunning their obligations under the umbrella of a complacent judiciary. After briefly describing NEPA's overall rise and fall, this article focuses on NEPA at the Interstate Commerce Commission (ICC). The ICC provides an excellent example of administrative avoidance of environmental regulation during a period of economic deregulation. Further, the ICC's success at avoiding NEPA illustrates the cooperative spirit of the judiciary. Finally, a review of NEPA at the ICC provides insights into what must be done to reinvigorate the statute.