THE DEVIL IN NEPA'S DETAILS: AMENDING NEPA TO PREVENT STATE INTERFERENCE WITH ENVIRONMENTAL REVIEWS.

Citation metadata

Author: Clay F. Kulesza
Date: Feb. 2021
From: William and Mary Law Review(Vol. 62, Issue 3)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 9,670 words
Lexile Measure: 2040L

Document controls

Main content

Article Preview :
TABLE OF CONTENTS INTRODUCTION 1042 I. BACKGROUND 1043 A. Environmental Review Under NEPA 1044 B. Breach of NEPA and the APA 1047 II. NEPA'S CURRENT FLAW AND THE CIRCUIT COURT SPLIT 1048 A. Limehouse and the NEPA Cause of Action 1049 B. The Other Circuit Courts 1052 III. A PROPOSED CONGRESSIONAL AMENDMENT TO NEPA 1054 A. A Citizen Suit Provision Under NEPA 1055 B. Solving the Current Controversy 1057 1. Private Action Against State Actors and Agencies 1057 2. Preventing Irreversible Interference 1058 C. Comparison to Other Environmental Statutes with Citizen Suit Provisions 1060 IV. COUNTERARGUMENTS 1062 A. Waste of Judicial Resources 1063 B. Maintaining the Status Quo 1064 CONCLUSION 1066

INTRODUCTION

The environment is susceptible to human harms because it lacks a voice of its own. Yet environmentalists have used their voices for generations to promote environmental protection, causing Congress to pass a variety of laws that prevent needless environmental destruction. The National Environmental Policy Act of 1969 (NEPA) advances this goal by directing the federal government to undergo an environmental review process anytime it wants to begin a project that could have detrimental environmental impacts. (1) This process ensures that the federal government knows how a project will impact the environment and whether any feasible alternatives to a project may have less of an impact on the environment. (2)

However, problems can arise when state agencies circumvent NEPA and interfere with the mandated environmental review to reach a result that ultimately benefits the state but harms the environment. Such was the case in Minnesota in July 2014. (3) While the federal government was studying the impacts of a proposed railroad that would cut through an environmentally sensitive area, the Minnesota state government began making deals with cities in the region concerning the path of the tracks. (4) The federal agency in charge of the project could have chosen a different route for the tracks--one that either did not cut through the protected area or that included efforts to minimize the environmental damage--but the state agency's actions essentially ensured the tracks would be laid in the exact way the state wanted. (5)

A local environmental group attempted to enjoin the agencies from deviating from NEPA's strict guidelines, but the Court of Appeals for the Eighth Circuit held that the statute did not permit the group to bring a private cause of action against state officials. (6) The case was dismissed, and the court neither reprimanded the state for interfering with the federal government's planning efforts nor prevented the state from interfering further in future projects. (7)

This problem is not unique to environmental groups in Minnesota. The way in which Congress wrote NEPA has caused citizen groups around the country to confront this same issue. (8) This Note contends that Congress should amend the National Environmental Policy Act of 1969 to include a specific "citizen suit" provision that would authorize concerned individuals and environmental groups to bring private causes of action against state actors and agencies to prohibit states...

Source Citation

Source Citation   

Gale Document Number: GALE|A658934305