Abstract
The National Environmental Policy Act (“NEPA”) tasks the government with fully analyzing the environmental consequences of the actions it plans to take before those actions can be performed. This procedural function of NEPA is much maligned by the development community for imposing paralyzingly high costs on government action. At the same time, the statute is disparaged by environmentalists as a toothless and ineffective tool which cannot compel the government to conform its actions to the environment’s best interests. So, which side is right? Arguably, both are. By interpreting NEPA to be a purely procedural statute, the Supreme Court’s holdings on NEPA give ground to both the critics who think the statute does too little and the critics who think it demands too much. Consequently, in the NEPA context, procedural obligations tend to be highly litigated, since they are the only basis on which a challenger can convince a court to set aside agency action. I argue that risk-averse agencies commonly acquiesce to the most exacting judicial interpretation of complex procedural requirements to avoid running the risk of having their actions invalidated in litigation. So, when courts (rightly or wrongly) invalidate a federal action on NEPA procedural grounds, agencies devote additional effort to their future actions in compliance with the court’s broadened interpretation of the procedural requirement. But by then the battle lines have shifted, and the next challenge may provoke a court to issue an even more expansive reading of NEPA’s procedural burdens. The perpetually inflating morass of NEPA’s requirements make agency compliance with the statute ever more difficult and expensive, inviting complex and technicality-laden litigation which itself has the potential to further expand the scope of NEPA.
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Recommended Citation
Cade Mallett,
Backdoor NEPA Proceduralization: Less Environmental Substance Begets More Environmental Procedure,
65
Nat. Res. J.
16
(2025).
Available at:
https://digitalrepository.unm.edu/nrj/vol65/iss1/4
