The discussion of NEPA as it is practiced today is correct. But in the context of the historical development of the "hostile turn" and its focus on procedure I find a few things interesting that make the story a bit more complex:
1. As of NEPA's enactment in 1970 and indeed up until the FRA Amendments in 2023, there was no environmental assessment (EA) requirement in the statute. The statute required only a "detailed statement," which would later be understood as an EIS. And only for "major" federal actions "significantly" affecting the environment. Those qualifiers were added at the request of the Bureau of the Budget (a predecessor to OMB) had comments on behalf of the Executive Office of the President and meant to limit the universe of actions the law applied to.
The 1978 regulations added the EA requirement, which is initially meant to be a "brief concise" document that memorialized analysis of whether an EIS was even needed in the first place. They also read the phrase "major federal sanctions significantly affecting..." as essentially one standard, not different standards for "major" and "significantly."
2. From its passage in 1970 through the SCOTUS's Stryker's Bay decision in 1980 it was a somewhat live question whether NEPA was meant to be procedural or substantive. Robertson v. Methow Valley Citizens Council in 1989 is where I would say the question was definitively resolved. In contrast, section 106 of NHPA was clearly procedural from the outset.
Great points! I found it fascinating to learn the history of how the Carter administration thought that its 1978 CEQ regs were *fixing* an overly-burdensome NEPA process (given how much ire were eventually directed at those regulations later). On your second point, the DC Circuit - as quickly as Calvert Cliffs in 1971 - did reach the conclusion that only NEPA's procedural requirements (102(2)(C)) and not its substantive ones (101) were judicially enforceable and had bite. But it's a good point that it was not a given that SCOTUS would reach the same view until at least 1980, or perhaps even 1989 (cf., of course, Vermont Yankee).
Very interesting piece!
The discussion of NEPA as it is practiced today is correct. But in the context of the historical development of the "hostile turn" and its focus on procedure I find a few things interesting that make the story a bit more complex:
1. As of NEPA's enactment in 1970 and indeed up until the FRA Amendments in 2023, there was no environmental assessment (EA) requirement in the statute. The statute required only a "detailed statement," which would later be understood as an EIS. And only for "major" federal actions "significantly" affecting the environment. Those qualifiers were added at the request of the Bureau of the Budget (a predecessor to OMB) had comments on behalf of the Executive Office of the President and meant to limit the universe of actions the law applied to.
The 1978 regulations added the EA requirement, which is initially meant to be a "brief concise" document that memorialized analysis of whether an EIS was even needed in the first place. They also read the phrase "major federal sanctions significantly affecting..." as essentially one standard, not different standards for "major" and "significantly."
2. From its passage in 1970 through the SCOTUS's Stryker's Bay decision in 1980 it was a somewhat live question whether NEPA was meant to be procedural or substantive. Robertson v. Methow Valley Citizens Council in 1989 is where I would say the question was definitively resolved. In contrast, section 106 of NHPA was clearly procedural from the outset.
Great points! I found it fascinating to learn the history of how the Carter administration thought that its 1978 CEQ regs were *fixing* an overly-burdensome NEPA process (given how much ire were eventually directed at those regulations later). On your second point, the DC Circuit - as quickly as Calvert Cliffs in 1971 - did reach the conclusion that only NEPA's procedural requirements (102(2)(C)) and not its substantive ones (101) were judicially enforceable and had bite. But it's a good point that it was not a given that SCOTUS would reach the same view until at least 1980, or perhaps even 1989 (cf., of course, Vermont Yankee).