NEPA Section 102(1): A Useful (Yet Rarely Used) Tool for Public Interest Environmental Lawyers

by Joel Mintz

The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental public interest lawyers and the federal courts: sub-section 102 (1). This pithy provision states: "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act]."

NEPA’s stated policies are broad indeed. The statute’s announced purpose is “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment,” and “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” Moreover, NEPA declares it to be the “continuing policy” of the federal government 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.”

On a careful reading, several aspects of sub-section 102(1) are apparent. First, the subsection is unquestionably mandatory. Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA’s thoughtful policies, it has required that to occur in clear terms. Second, the sub-section makes clear that what is to be construed and implemented consistent with NEPA’s policies are--without limitation--all federal legal authorities that may be described as policies, regulations or public laws. Thus, the provision implicitly directs that all of the Nation’s environmental laws must be interpreted and administered in the fashion mandated by the provision.  Third, NEPA plainly requires that the legal interpretation and administration to which it refers must take place “to the fullest extent possible.” As that phrase has been interpreted in the courts in the context of NEPA’s EIS requirement—and consistent with the statute’s brief but clear legislative history—it is evident that what Congress has required in sub-section 102 (1) is nothing less than a vigorous and wholehearted application of NEPA’s environmentally protective policies.

NEPA does not, on its face, indicate whether the kind of legal interpretation and administration that it directs applies to federal courts as well as to federal agencies. However, there is good reason to believe that its mandate applies to both kinds of institutions. Courts have interpreted legislative enactments since well before the United States was founded—a fact that Congress was undoubtedly aware of when it passed NEPA into law. Moreover, while the statute expressly limits the applicability of NEPA’s EIS provision to “all agencies of the federal government,” the scope of sub-section 102 (1) is not similarly confined. That omission is significant. If Congress had intended to cabin the applicability of this provision to the federal executive branch, as it did with the EIS requirement, it could easily have drafted NEPA to make that clear. Its failure to do so carries the clear implication that sub-section 102 (1) was meant to apply to all branches of the federal government with responsibility for interpreting and administering our Nation’s laws, regulations and policies--including the federal judiciary along with the agencies and Departments housed in the Executive branch.

I urge and hope that environmental public interest lawyers will come to realize the strategic usefulness of NEPA sub-section 102 (1), and that federal agencies and judges will at last begin to afford this provision the respect and deference that a clear Congressional directive rightfully deserves. Its continued existence represents an excellent opportunity to breathe new life into a landmark statute whose potential for environmental protection has never been fully realized.

I explore these issues further in two law review articles, Taking Congress's Words Seriously: Towards a Sound Construction of NEPA's Long Overlooked Interpretation Mandate and Sackett v. EPA and Judicial Interpretations of Environmental Statutes: What Role for NEPA?



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