Major Federal Actions Under the National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA),' although it marked a significant step on the path toward improving the quality of the environment, fell short of becoming a panacea by its failure to delineate clearly the substantive rights which the legislation was designed to enforce.In view of expanding concepts of standing and reviewability, NEPA has produced a great deal of litigation in the past few years, much of it centered on the standards of judicial review outlined in the Administrative Procedure Act (APA). 2 The purpose of NEPA was to promote a national environmental policy, but its broad and general terms seem to invite interpretational dispute, and implementation of its provisions has yet to be carried out uniformly.Congress' failure to establish definite standards has left delineation of NEPA's mandate to the slower, more haphazard process of judicial review of agency actions.Initially, some courts were unwilling to review an agency's findings concerning the environmental impact of their action under any standard.However, courts now recognize their obligation to review substantive findings, but most use the narrow "arbitrary and capricious" standard of APA.Until courts are willing to engage in a more thorough review of environmental impact, at a minimum, they must continue to emphasize and expand the procedural duties mandated by NEPA and to review more closely how agencies make their decisions.Such has been the perceptible trend in NEPA litigation. II. LEGISLATIVE HISTORY OF NEPANEPA was enacted after Congress realized that, although national policies were not designed to cause environmental damage, they did little to prevent it.3 Those policies were designed mainly to enhance material wealth 4 and thus planning became "the exclusive province of the engineer and the cost analyst."5 The humanistic viewpoint, concerned with man's relationship with the environment, was being "overlooked or purposely ignored."'6 Congress realized that actions having possible irreversible consequences were being undertaken without adequate consideration of their impact.Congress hoped 1. 42 U.S.C. § § 4321-47 (1970) (effective January 1, 1970).2. 5 U.S.C. § 706 (1970).3. S. Rep. No. 296, 91st Cong., Ist Sess. 5 (1969) [hereinafter cited as Senate Report], NEPA is legislation passed "to protect the environment against the government" Leventhal, Environmental Decision-making and the Role of the Courts, 122 U. Pa.L. Rev 509, 510 (1974).4. Senate Report, supra note 3, at 5. 5. 115 Cong.Rec.40,420 (1969).6. Id. 7. Senate Report, supra note 3, at 8. Such goals consist of "material wealth, greater productivity, and other important values."Id. at 8-9. 8. 115 Cong.Rec.40,416 (1969).9. NEPA § 102(2)(A), 42 U.S.C. § 4332(2XA) (1970).10. 115 Cong.Rec.40,420 (1969).11. 1 A. Reitze, Environmental Law 1 (1972).The author discusses how, in the absence of such a relationship, legal change comes very slowly.12. 42 U.S.C. § 4321 (1970)."In many respects, the only precedent and parallel . . . is the Full Employment Act of 1946, which declared an historic national policy on management of the economy . . .." 113