What's Substantive NEPA and Who Should Care?

Substantive NEPA is changing a federal agency's proposed action by telling them what the future should look like. All Americans should care about substantive NEPA, but especially those in their 30s and 40s because they will be the ones who will bear the brunt of fixing what the Greatest Generation, the Silent Generation, and the Boomers botched. Substantive NEPA provides for mandatory public disclosure of proposed federal agency actions and citizen involvement in order 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." (NEPA, Sec. 101(a)) Why do I keep returning to the substantive NEPA issue after all these years? Because I do not believe the concept of substantive NEPA is academic or dead. However, to say that the concept of substantive NEPA has been eroded is an understatement. The US Supreme Court mooted the concept that NEPA provides a substantive basis for judicial reversal of agency decisions. This mooting by the Supreme Court occurred over a 13-year period with four seminal cases: Kleppe v. Sierra Club 427 US 390 (1976), Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. 435 US 519 (1978), Stryker’s Bay Neighborhood Council v. Karlen 444 US 223 (1980), and Robertson v. Methow Valley Citizens Council 490 US 332 (1989). All of these cases relied on dicta to say that the Court should not substitute its judgment for that of a federal agency while never addressing the issue of NEPA’s substantive language in Sections 101(a) (statement of national environmental policy) and (b) (goals) and Section 102(1) (administration of the national environmental policy).

Not just “environmentalists” see a substantive NEPA. The late Professor Lynton K. Caldwell of Indiana University, who was instrumental in creating NEPA, thought that NEPA’s “…substantive precepts have the status of legal principles that could be implemented by executive action, or by statutory measures enforceable through the courts.” (The National Environmental Policy Act An Agenda for the Future, 1998) He was the first to point out that NEPA's procedures in Section 102(2)(C) are intended to force the federal agencies to comply with the substantive policies elucidated in Sections 101(a) and (b), and 102(1).

In addition, Caldwell explained that "NEPA is not primarily (a) a full disclosure law; (b) a vehicle for citizen involvement; or (c) a regulation of agency procedures. The Act contributes importantly to each of these objectives, but they are incidental to its main purpose and none were primary reasons for its enactment. NEPA is what its title declares: a policy act. Its purpose was to state for the first time and in a single place, a comprehensive national commitment to protection of the environment and to back up that commitment with a corresponding reorientation of specific policies and programs of the administrative agencies of the United States government." (Is NEPA Inherently Self-Defeating?, Environmental Law Institute. Environmental Law Reporter, ARTICLES & NOTES, January, 1979 9 ELR 50001)??

Professor James Salzman (UCLA and Duke) and Professor Barton H. Thompson, Jr. (Stanford) ask a crucial question in their book Environmental Law and Policy, Fourth Edition, 2014. “…how can the court take a hard look to determine if the agency complied with NEPA’s procedural requirements (i.e., whether it fully considered the relevant factors) unless the court assesses the agency’s final decision (a substantive analysis)?”

I am not predicting when the US Supreme Court will reverse itself on decades of closing its eyes to the substantive intent of NEPA. However, that does not mean there is no substantive intent in NEPA. Clearly, there is, and one can presume that ultimately the Court will entertain a case concerning NEPA’s substantive principles. One can imagine that such a case is already on the near horizon and that it deals with federal agencies’ responsibilities to analyze their contributions to global warming in a good faith effort to combat it. Section 1502.16, Environmental consequences, of the May 20, 2022, Council on Environmental Quality (CEQ) regulations “…forms the scientific and analytic basis for the comparisons under §1502.14, Alternatives, including the proposed action. The discussion shall include [among other things]: …(a)(6) Energy requirements and conservation potential of various alternatives and mitigation measures.” The word shall in 1502.16 mandates all federal agencies discuss the "energy requirements and conservation potential of various alternatives and mitigation measures." Now it is time for the CEQ to create new policy in the CEQ regulations that operationalizes and explains the “energy requirements and conservation potential” mandate to include energy analysis in NEPA documents in order to combat global warming.

Well then, let's get to it now so we can look forward to a cooler, more optimistic future.