NEPA transformed federal land management — and has fallen short

A look back at the ground-breaking legislation on its 50th anniversary.

 

A U.S. Forest Service employee assesses sagebrush ecosystems of the Curlew National Grassland in Idaho. With NEPA's passage, federal agencies were required to bring in specialists to study proposed project areas in depth.

Reckoning with History is an ongoing series that seeks to understand the legacies of the past and to put the West’s present moment in perspective.

In late January 1969, a blowout on Unocal’s Platform A leaked 3 million gallons of crude oil into the Pacific Ocean, just 6 miles from Santa Barbara, California. The spill — at the time, the largest in U.S. history — spread over 800 square miles, coated 8 miles of beaches and killed thousands of animals. Images of the devastation shocked a public increasingly worried about the environment and helped spur Congress to pass a sweeping law aimed at preventing similar disasters in the future — the National Environmental Policy Act.  

President Richard Nixon signed NEPA into law on Jan. 1, 1970, from his home office on the Pacific Coast. The signing was a fitting launch for the environmental decade of the 1970s — a time when “America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment,” as Nixon said in his signing statement. “It is literally now or never.”

On the law’s 50th anniversary, it is worth considering its origins, development and significance — including the ways it has transformed American environmental governance, and how its promise has diminished. Five decades ago, the federal government recognized its responsibility to reduce environmental problems. But while NEPA provided a road map, only some of those routes have been taken.

Congress introduced, amended and passed NEPA quickly and only 15 legislators voted against it, indicating a widespread consensus on the need for federal environmental regulation. The law is relatively straightforward: Besides creating the Council on Environmental Quality to advise the president and issue guidance and regulations, it provided general principles to direct federal activities and devised a process to implement them.

At the heart of the legislation lay an optimistic belief that economic growth, environmental protection and human welfare might align without sacrifice or rancor. The law highlights the need 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.” It clearly takes a long-range view, incorporating tomorrow’s environmental fate into today’s decisions.

These values, though, tend to be forgotten, overshadowed by a procedural hurdle that changed business-as-usual for federal planning and decision-making. Before undertaking “major Federal actions significantly affecting the quality of the human environment” — offering timber sales on federal land, for example, or building an interstate highway — federal agencies and their partners now had to submit “a detailed statement.” That environmental impact statement, or EIS, needed to be interdisciplinary and thorough, detailing any environmental problems likely to result from the proposed project and listing alternatives, including more costly ones. Then, the public was invited to comment. The procedure significantly lengthened and complicated federal land-use planning and politicized it like never before.

The interdisciplinary requirement meant that engineers had to consult biologists, foresters needed hydrologists, and so on, effectively forcing agencies like the Bureau of Land Management to hire a range of specialists and ask different and often harder questions than ever before. 

The new process was transformative. The interdisciplinary requirement meant that engineers had to consult biologists, foresters needed hydrologists, and so on, effectively forcing agencies like the Bureau of Land Management to hire a range of specialists and ask different and often harder questions than ever before. By investigating alternatives rather than simply presenting a proposal as a fait accompli, greater degrees of choice and openness came to the process, as well as a franker acknowledgement that building dams or offering gas leases cause environmental problems. The addition of a public comment period also made environmental decision-making more democratic. Although the final decision was not open to a popular vote, the EIS process involved the public much more directly than ever before.

But the EIS process with its public input also opened doors to lawsuits, a result as American — and as controversial — as the public lands themselves. Congress had added the EIS procedure to protect the “productive harmony” at the law’s core. But the strategy failed. The year after Nixon signed NEPA, the D.C. Circuit Court declared its goals flexible, but not its procedures: Federal agencies could interpret “productive harmony” however they liked, as long as they filed an EIS. In 1989, in what has become a controlling opinion in Robertson v. Methow Valley Citizens Council, the U.S. Supreme Court went further, declaring that federal agencies did not even have to preserve “productive harmony.” Instead, it found that “NEPA merely prohibits uninformed — rather than unwise — agency action.” In other words, the EIS needed to list all the options, but agencies were not required to choose the best one. 

In the decades since, NEPA’s critics have periodically tried to gut the law further, such as the Trump administration seeking to exempt certain Forest Service projects from its rules. Detractors commonly bemoan the lengthy and litigious process that fulfilling NEPA requirements has become, which is easier to track than the law’s successes. Adherence is costly in time and personnel, especially for agencies already underfunded, understaffed and facing backlogs of work. NEPA’s procedures can be rigid, and for a culture bent on efficiency, almost nothing seems as bad as that.

Yet returning to an era when government officials made decisions without considering environmental impacts or public input would erode democratic governance. NEPA’s opening section ends by recognizing “that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” That sentiment captures NEPA’s essence from its birth to its golden anniversary: Citizens deserve healthy surroundings, and they also bear a responsibility for securing them through the faithful execution of the law.

Adam M. Sowards is an environmental historian, professor and writer. He lives in Pullman, Washington. Email High Country News at [email protected] or submit a letter to the editor.

High Country News Classifieds
  • COMMUNICATIONS ASSOCIATE
    The Greater Yellowstone Coalition seeks a Communications Associate to support the advancement of GYC's mission by working closely with the Communications Coordinator and program staff...
  • MONTANA DIRECTOR OF DEVELOPMENT
    YOUR POSITION WITH TNC The Director of Development (DoD) is responsible for directing all aspects of one or more development functions, which will secure significant...
  • DEVELOPMENT AND OPERATIONS COORDINATOR
    Development & Operations Coordinator Terms: 1.0 FTE (full-time), Salary DOE ($45,000 - $55,000) Benefits: Paid Time Off (12-24 days/year depending on tenure), Paid Holidays (10/year),...
  • GUIDE TO WESTERN NATIONAL MONUMENTS
    NEW BOOK showcases 70 national monuments across the western United States. Use "Guide10" for 10% off at cmcpress.org
  • CARBON RANCH PLANNER
    The Quivira Coalition (www.quiviracoaltion.org) is a Santa Fe-based nonprofit that builds resilience on arid working lands. We foster ecological, economic, and social health through education,...
  • EDUCATION AND OUTREACH DIRECTOR
    Education and Outreach Program Director The Quivira Coalition (www.quiviracoaltion.org) is a Santa Fe-based nonprofit that builds resilience on arid working lands. We foster ecological, economic,...
  • WESTERN DIVISION DIRECTOR OF FIELD PROGRAMS
    DEADLINE TO APPLY: October 29, 2021 LOCATION FLEXIBLE (WESTERN HUB CITY PREFERRED) Overview The Land Trust Alliance is the voice of the land trust community....
  • COMMUNICATIONS AND OUTREACH ASSOCIATE
    Communications and Outreach Associate Position Opening: www.westernlaw.org/communications-outreach-associate ************************************************* Location: Western U.S., ideally in one of WELC's existing office locations (Santa Fe or Taos, NM, Helena,...
  • FREELANCE GRAPHIC DESIGNER & PROJECT COORDINATOR (REMOTE)
    High Country News (HCN) is seeking a contract Graphic Designer & Project Coordinator to design promotional, marketing and fund-raising assets and campaigns, and project-manage them...
  • FILM AND DIGITAL MEDIA: ASSISTANT PROFESSOR OF INDIGENOUS MEDIA, CULTURAL SOVEREIGNTY AND DECOLONIZATION (INITIAL REVIEW 12.1.21)
    Film and Digital Media: Assistant Professor of Indigenous Media, Cultural Sovereignty and Decolonization (Initial Review 12.1.21) Position overview Position title: Assistant Professor - tenure-track Salary...
  • REAL ESTATE SPECIALIST
    To learn more about this position and to apply please go to the following URL.
  • ENVIRONMENTAL GEOPHYSICS
    "More Data, Less Digging" Find groundwater and reduce excavation costs!
  • RARE CHIRICAHUA RIPARIAN LAND FOR SALE
    40 acres: 110 miles from Tucson: native trees, grasses: birder's heaven::dark sky/ borders state lease & National forest/5100 ft/13-16 per annum rain
  • CENTRAL PARK CULTURAL RESOURCE SPECIALIST
    Agency: Oregon Parks and Recreation Department Salary Range: $5,203 - $7,996 Position Title: Central Park Cultural Resource Specialist Do you have a background in Archaeology...
  • STAFF ATTORNEY
    Come live and work in one of the most beautiful places in the world! As our Staff Attorney you will play a key role in...
  • ARIZONA GRAZING CLEARINGHOUSE
    Dedicated to preventing the ecological degradation caused by livestock grazing on Arizona's public lands, and exposing the government subsidies that support it.
  • OPERATIONS MANAGER
    Position Summary: Friends of the Inyo (friendsoftheinyo.org) is seeking a new Operations Manager. The Operations Manager position is a full-time permanent position that reports directly...
  • WATER RIGHTS BUREAU CHIEF
    Water Rights Bureau Chief, State of Montana, DNRC, Water Resources Division, Helena, MT Working to support and implement the Department's mission to help ensure that...
  • DEVELOPMENT & OUTREACH ASSOCIATE
    Southeast Alaska Conservation Council is hiring! Who We Are: The Southeast Alaska Conservation Council (SEACC) is a small grassroots nonprofit based out of Juneau, Alaska,...
  • DESERT LANDS ORGANIZER
    Position Summary: Friends of the Inyo seeks a Desert Lands Organizer to assist with existing campaigns that will defend lands in the California desert, with...