"The
National Environmental Policy Act (NEPA), signed
into law on the first day of 1970, stands in stark
contrast to other environmental legislation enacted
in the 1970s and 1980s. Beginning with the Clean Air
Act, passed in late 1970, environmental legislation
became increasingly prescriptive, detailed, and
complex. NEPA, on the other hand, was short, simple,
and comprehensive. It established a national policy
to protect the environment, created a Council on
Environmental Quality (CEQ), and required that
environmental impact statements [EIS] be prepared for
major federal actions having a significant effect on
the environment. This simple Act can be compared to
the current crop of environmental laws that take up
hundreds of pages and generate bookshelves worth of
regulations. With little statutory guidance, the
newly created CEQ set about building a staff and
staking out an agenda. CEQ's highest priority was to
become the federal environmental policy arm. The
environmental impact statement and annual report
requirements were both lower priority.
CEQ made
major advances in the policy area. During the early
1970s, CEQ developed a comprehensive environmental
program which included, among others, amendments to
the Federal Water Pollution Control Act, the Toxic
Substances Control Act, foreruners to the Resource
Conservation and Recovery Act (RCRA), and the Safe
Drinking Water Act and amendments to the pesticides
legislation. During its formative years, CEQ laid
the groundwork for almost all current environmental
legislation except for Superfund and asbestos
control legislation.
CEQ also
developed guidelines for the environmental impact
statement process. At the time they were developed,
CEQ staffers had no idea how revolutionary the
environmental impact statement process would become.
One very
early event substantially influenced EPA's role in
reviewing other federal agency actions. It happened
when the U.S. Department of Transportation refused
to release agency comments on the environmental
impact statement for the proposed Supersonic
Transport. Congress took subsequent action. It added
Section 309 to the 1970 Clean Air Act, which stated
that EPA must comment on all EISs and that EPA's
comments must be made public and would be
transmitted to CEQ for action if the environmental
impacts were "environmentally unsatisfactory." Under
this Clean Air Act mandate, EPA set up a structured
program for reviewing and rating federal agency
projects that continues to this day.
Concurrent with the creation of NEPA was the
founding of new environmental litigation
organizations--namely the Natural Resources Defense
Council and the Environmental Defense Fund. NEPA was
like grain dust to the environmental litigators'
match. These and other environmental and citizen
groups used the NEPA tool to sue a host of federal
agencies for noncompliance with NEPA. The courts
generally came down on their side.
The
initial impacts were dramatic. The Atomic Energy
Commission's nuclear licensing process was stopped
dead in its tracks for more than a year as a result
of the Calvert Cliffs decision. Outer Continental
Shelf oil drilling was held up until a proper
environmental impact statement was prepared.
Controversy over the Alaska Oil Pipeline was brought
to a close only when Congress decreed the
environmental impact statement process was
completed.
NEPA had
other unexpected results. The Courts interpreted
NEPA to cover not only direct impacts from federal
projects and activities but also indirect effects.
These indirect effects might include increased
traffic or secondary development from projects. For
example, the initial proposal for a John F. Kennedy
library at Harvard University was dropped when the
environmental impact statement projected increased
congestion and air pollution.
Some
have granted that the NEPA process has also been
misused at times. For example, environmental impact
statements have been used to challenge public
housing projects. The real concerns in these cases
were only partially environmental; in many, they
were predominantly neighborhood issues; sometimes,
they were racial issues.
By the
middle of the 1970s, environmental concerns were
routinely being built into government actions. In
most cases, a major defeat or slow-down of a project
precipitated action. Environmental staffs were
formed, consultants mobilized, an line staff became
more sensitive to environmental concerns. Also,
through the last part of the 1970s and during the
1980s, the composition of government projects and
actions changed. Lower energy prices created less
demand for a host of energy projects, particularly
electric powerplants. The federal highway system was
essentially complete; most of the funds were used to
upgrade existing routes.
NEPA's
lack of notoriety may well be its measure of
success. By and large, government agencies have
institutionalized environmental quality concerns in
decision-making. Few projects proceed today that
provoke an environmentally unsatisfactory rating
from EPA. Many projects contain environmental
safeguards that would not have resulted without the
NEPA prod.
In some
cases, generic programs have been fundamentally
altered because of NEPA concerns. For example, EPA's
sewage treatment grant strategy shifted from one of
encouraging large regional facilities to one that
encouraged smaller units. This strategy resulted in
large part from concerns over stimulating urban
sprawl and development in sensitive areas by
financing long interceptors into undeveloped areas.
The CEQ,
created by NEPA, played a major policy and education
role, as well as becoming the caretaker of the
environmental impact process. During its early
years, CEQ was the undisputed policy arm of the
government's environmental apparatus. Its annual
reports were authoritative and well respected. Not
only did the CEQ develop major pollution control
legislation and policy, but it also addressed a
range of non-pollution issues, such as the urban
environment, clearcutting, predator control, and
off-road vehicle use.
The
massive growth of EPA, coupled with large percentage
staff cuts at CEQ, has reduced the Council's policy
role. EPA now takes the lead in many areas which
during the early years would have been CEQ's
province. CEQ still provides coordination of some
large programs, such as the National Acid
Precipitation Action Plan, but these types of
responsibilities have been rarer in recent years.
Overall,
NEPA has been a quiet but effective success after
turbulent and dynamic beginning. CEQ continues to
play a positive, although diminished, role. The CEQ
annual reports are still the best overall review of
environmental issues and trends. The NEPA process
has wrought a major change in the way government
deals with environmental issues, and this model has
been replicated in whole or in part in 23 states.
All in all, NEPA has codified an important national
policy commitment and created helpful procedural and
organizational tools to further that policy
objective."
The Case: A Product of the Two “60s”
"Calvert Cliffs
construed the recently enacted NEPA, but
the decision ultimately reflects the convergence of
three ideas contributed by the environmental movement
emerged in the late 1960s. One of the many ironies of
the case is that it is a marriage of the two parts of
the now mythic 1960s. Although formulated and enacted at
the height of one of the most turbulent periods of
twentieth century social unrest, NEPA, the statute, is
actually a product of the more optimistic, technocratic,
and decidedly non radical early 1960s. NEPA, the
practice area, is the product of the more familiar,
radical 60s. NEPA was formulated at the end of the
Kennedy and Johnson administrations (1960-1968) which
laid the foundations for the burst of important
environmental legislation enacted between 1969 and 1973.
Led by Secretary of the Interior Stewart Udall, the
Congress and the two Democratic administrations
undertook many important legislative and administrative
environmental protection efforts. In contrast, Judge
Wight’s opinion reflects the growing skepticism,
triggered by the racial and social unrest of the late
1960s, with the ability of the state to address modern
social and technological problems and more generally
with the idea of a public interest articulated by
“expert” administrative agencies.
Among its many legacies, the radical 60s, which lasted
until about 1973, produced a fundamental power shift by
allowing non-governmental organizations [NGOs] to
participate in regulatory processes which had previously
been a closed conversation between the regulators and
the regulated community. Calvert Cliffs grew
out of challenges to nuclear power plants in 1960s.
Opponents and those challenging other federal licensing
and construction decisions faced a fundamental problem:
environmental consciousness was rapidly increasing but
no viable “environmental” cause of action existed.
Congress had not yet enacted the bulk of the statutes
that permitted citizen suits. Calvert Cliffs
construed NEPA to create the missing cause of action.
Calvert Cliffs
has its immediate origins in the concern
of Johns Hopkins University scientists that the
discharge of heated cooling water from the plant would
be detrimental to a crucial element of the Chesapeake
Bay ecosystem, the bay’s famed blue crabs. This concern
reflected two seminal ideas of environmentalism. The
first was that the “environment,” which was understood
primarily as the protection of ecosystems and the
reduction of visible pollution, was a suitable public
policy focus, and the second was that ecosystems should
be protected qua ecosystems. Modern environmentalism
inherited the early twentieth century preservation
movement’s idea that sacred and spectacular nature
should not be disturbed by human intervention and gave
it a scientific cast by making the presumed inherently
stable ecosystem the focus of protection.
The
second idea turned the still dominant New Deal State on
its head by venerating guerilla legal warfare and
strategic law suits seeking aggressive judicial review
of administrative action.The environmental movement,
along with the women’s movement and the civil rights
movement, is one of the lasting legacies of the 1960s.
They all adopted guerilla litigation out of necessity.
In
brief, the movement fused diverse public health fears
with a growing concern about the rate of loss of the
natural landscape. Concern about radiation had been
building since the 1950s, visible pollution became a
political issue after smog was linked to the internal
combustion engine, and the 1969 Santa Barbara oil spill
focused national attention on the dangers of inadequate
pollution control technology.
These concerns were ultimately folded into some of the
energy of the anti-Vietnam War movement. The net result
was that faith in technological progress and the ability
of the expert New Deal state to control technology and
to adapt to new values was severely undermined. All
three ideas were captured in Rachel Caron’s best-selling
brief against synthetic organic pesticides, Silent
Spring. Secretary of the Interior Stuart L. Udall
later wrote of the book, “it spurred new lines of
thought about resources and the limits of technology
that began to alter the thinking of my generation” and
“it is undeniable that Rachel Carson’s concepts inspired
. . . the enactment of National Environmental Policy
Act. . .”
In
the late 1960s, litigation was not a promising means of
channeling these concerns, but lawyers turned to it
because administrative agencies seemed unresponsive to
environmental degradation and few could imagine how
quickly Congress would take up the issue in the early
1970's. Litigation to contest government actions that
caused environmental damage was daunting because New
Deal administrative law immunized almost all agency
exercises of discretion allocating natural resources
from judicial review.
The
immunization started with the law of standing which
precluded NGO public interest suits. Constitutional and
common law challenges were equally unpromising. The idea
of direct constitutional challenges enjoyed a brief
flurry of interest, but the idea died because no express
or implied Constitutional right to a decent or healthy
environment exists. Attempts to characterize the impact
of a project such as a power plant on the landscape as
nuisance floundered on doctrine that the common law does
not recognize aesthetic injuries and was loath to enjoin
activities in advance of demonstrated harm.
NEPA
& Calvert Cliffs
The
passage of NEPA made Calvert Cliffs possible, but
Judge Wright’s construction of NEPA was far from
inevitable. There are at least three stories of NEPA
relevant to Calvert Cliffs. The first is the most
conventional. NEPA was intended as a simple, effective
way to rationalize the federal bureaucracy’s protection
of the environment. Its sponsors, primarily Senator
Henry Jackson of Washington State, considered themselves
heirs to the New Deal tradition of a strong, caring
federal government and sought only to adapt the federal
bureaucracy to cope with the newly emerging
environmental consciousness. The second, which follows
from the first, is that courts would to play a limited
role in this process because Congress and the Office of
Management and Budget would be the chief enforcers.
In
this scenario, the goals of the statute rather than the
preparation of environmental assessments and impact
statements, which is NEPA today, were the core of the
Act. Senator Jackson’s biographer reports that the
Senator was vexed by the vast inflation of the impact
statement because “[h]e has intended it to be a short
document laying out the costs and benefits of a given
project, rather than a labyrinthian process involving
mountains of detail . . .” to block projects. The third
story is that NEPA was intended a vehicle to transform
fundamentally our nation’s values and relationship to
nature but this objective has been frustrated by
Congress, the executive and the courts.
A Brief History of NEPA
NEPA is a
relatively unique statute which makes it both easy and
difficult to approach through the various standards of
statutory interpretation. NEPA legislated major, new
ideas—an explicit federal environmental policy enforced
in part by advance environmental impact assessment
--which were not completely formed. It was not the
typical, hard-fought legislative compromise among
powerful competing interests.
Senator Jackson had to
make some crucial compromises with other Senators,
notably Edmund Muskie of Maine, but the basic idea
behind the statute survived from start to finish and the
entire process took place out of the public eye. It was
possible for Congress to pass a statute such as NEPA
because environmental protection was still viewed as a
nonpartisan issue.
Protection was seen as a
logical extension of the long-standing federal
stewardship over natural resources that began in the
Progressive Conservation Era. Thus, the best way to
interpret the statute is to understand the problems that
it attempted to address, the manner it chose to do so
and the problems it did not address rather than to parse
its specific language.
NEPA was enacted just as
the idea of environmental protection was making the
transition from a public policy problem identified and
defined by elites to a mass political issue that
demanded a swift Congressional and Executive response.
During the 1950s and early 1960s, no general concept of
environmental protection existed within the federal
agencies that developed or regulated natural resources
from public lands to wetlands. The failure of the two
Roosevelt administrations to develop a coordinated
federal conservation policy and comprehensive resource
planning process left a legal landscape of federal
agencies with narrow statutory mandates. When an agency
action was challenged as environmentally harmful, the
agency’s response was either that it had no power to
consider environmental values or if they had, the agency
had virtually unlimited discretion to trade them off
against developmental ones.
NEPA was the creation of
a collaboration between Senator Henry Jackson and Lynton
K. Caldwell, a political scientist at Indiana
University, Bloomington. The legislation was signed by a
Republican president because the growing environmental
movement created pressure for more comprehensive
government responses to the perceived “crisis,” and the
new Nixon Administration did not want to be outflanked
on what it considered an important issue in key states
such as California, Florida and New York.
Henry Jackson, the son of
Norwegian immigrants, was elected to the Senate in 1952,
bucking the Eisenhower landslide. He became the chairman
of the Senate Interior and Insular Affairs Committee in
1963 and pursued an aggressive pre-environmental decade
conservation agenda which included passage of the
Wilderness Act of 1964, major extensions of the National
Park system, the Wild and Scenic Rivers Act as well as
major water resources development and planning
legislation. Jackson’s major concern was not pollution
but out of control mission agencies who were destroying
scenic natural resources. Opposition to the interstate
highway program, begun in the mid-1950s, was growing as
highways began to encroach on urban parklands, older low
income neighborhoods and scenic mountain areas. The
United States Army Corps of Engineers was building dams,
channelizing streams and turning inland areas into ports
as fiscal and environmental criticisms of the programs
mounted. The Atomic Energy Commission was a cheerleader
for nuclear power plants on large lakes, rivers and
bays. Jackson, however, cannot be described as a modern
environmentalist; he remained a “Teddy” Roosevelt
conservationist who saw no incompatibility between the
selective preservation of nature and its rational,
regulated exploitation.
NEPA was enacted to
address agency indifference or hostility in a
transformative, across the board manner by sending a
Congressional directive to the federal mission agencies
to assess the environmental consequences of their
activities, to presume sufficient authority to protect
the environment unless Congress had expressly withheld
the authority, and to coordinate more effectively their
activities with each other. The original version had no
environmental impact statement requirement; it only
authorized the Secretary of Interior to conduct
ecological research and created a Council on
Environmental Quality. The bill met with general public
indifference, even within the small conservation
community, although there was initial opposition from
the new administration of Richard M. Nixon and a few
members of Congress.
The opposition was more
jurisdictional. Senator Jackson adroitly maneuvered
around this opposition, but in the process NEPA was both
strengthened and weakened. A provision recognizing a
right to was dropped, but the “action-forcing” EIS
requirement was added.
The Birth of the
“Action-Forcing” Environmental Impact Statement
The change in NEPA was
the addition of the “action-forcing” requirements of
Section 102. “Action Forcing” was the brainchild of
Professor Caldwell, who had been asked by the Senate
Interior and Insular Affairs staff to strengthen the
bill.
In the mid-1960s, one of
the major environmental non-governmental organizations
was the Conservation Foundation, which primarily
acquired open space, but it was also the center of
nascent environmental thinking in Washington, D.C. It
had a small advisory board and Caldwell was one of its
members. At the request of the staff of the Senate
Interior Committee, the Foundation funded a consultancy
for Dr. Caldwell to work with the committee.
Caldwell was the first
political scientist to use the word “environment” as
opposed to conservation and to propose it as an
overarching public policy concept. He developed his
ideas of environmental protection in two stages. The
first stage was a critique of the way in which the
country was beginning to deal with the problems caused
by the exploitation of resources with little heed to the
environmental costs. If environmental degradation was
being addressed at all, it was done in a segmented
manner as opposed to a holistic, forward-looking manner.
Reflecting the then prevailing faith in comprehensive
rationality (the ability to evaluate a wide range of
options systematically), Caldwell argued in 1963 that
environmental protection should be a public policy
objective because it “will provide a common denominator
among differing values and interests”
The question was how to
enlighten the federal bureaucracy. In a major piece of
Senate Interior testimony that preceded his more famous
“action-forcing” proposal, he framed the issue as the
most effective governmental structure for the
development of environmental policy. He came down in
favor of a general policy which would apply to all
government agencies, enforced by an agency like the
Council on Economic Advisors. He and the other
proponents of NEPA thought that environment impact
issues would be a closed dialogue between the United
States Congress and the "mission" administrative
agencies moderated by the Office of Management and
Budget.
This approach led
directly to the need for an “action-forcing” mechanism.
In his widely cited testimony, Caldwell argued that it
was essential that federal agencies, especially the
mission agencies, be required “in submitting proposals,
to contain within the proposals an evaluation of the
effect of these proposals upon the state of the
environment to insure that the policy declarations did
not remain unimplemented.”
Today we have forgotten
that the action that NEPA was intended to force was not
the detailed environmental impact statement churned out
by government agencies and consultants but the
disclosure of “bad” projects that should be nipped in
the bud.
Professor Caldwell later
wrote:
“...the procedural
requirements of NEPA are intended to force attention
to the policies declared in the Statement of Purpose
(Section 2) and in Title I (Section 101) of the Act.
The purpose is to write impact statements. To regard
the action-forcing provision of Section 102 (the
so-called NEPA Process) as the essence of the Act is
to misinterpret its purpose--the substance of which
had been under consideration in the Congress for at
least a decade before the concept of the
environmental impact statement (EIS) was introduced
in 1969. Impact analysis is an important aspect of
planning and decision-making and has been applied to
a wide range of policy determinations--but it ought
not be substituted for the declared policies which
it is intended to activate.”
Factual Background
Calvert Cliffs
was one of the many efforts to stop
nuclear power plants or at least site them in safer and
more environmentally suitable locations in a regulatory
environment structured to ignore these problems.
Concern about the
military and civilian use of nuclear power had been
building since the 1950s after the initially reluctant
public utility industry jointed “the Great Bandwagon
Market for nuclear power”
The AEC was one of the
early bete noirs of the environmental movement
because of its political power, the determination to use
it to promote nuclear power and its insistence that
environmental protection was not part of its statutory
mission. By the mid 1960s, concern about the
environmental impact of cooling towers joined concerns
of reactor safety, and radiation leaks.
The various citizen
groups springing up around the country to question
nuclear power plants faced a kind of comedy of the
absurd starting with the calculation of future energy
demand and ending in a Kafkaesque regulatory structure
riddled with gaps. There were many regulatory checks on
a nuclear plant, but each stage addressed only a limited
issue and the only searching evaluation was the
two-tier AEC licensing process. The commission required
separate construction and operating licenses, but AEC
jurisdiction was still and Electric Company purchased
the land for the plant in 1966, quickly applied for a
rezoning which was granted and ordered the first two
turbines in December of 1966. The utility did not
publicly announce its plan to build a plant at
Calvert Cliffs until May of 1967 and construction
started the next year.
State public utility
commission approval was required, but these bodies
generally did not question a utility’s demand
projections or evaluate the environmental impacts of the
plant. In the 1960s, energy regulatory agencies and the
industry used a simple time basis projection to estimate
future demand; past growth in electric demand was
projected into the future. This method produced of
projections incrementally rising demand leading to a
potential capacity “crisis” by the then distant target
year of 1980. For example, the cover of the Federal
Power Commission’s 1970 National Power Survey
summarized a widespread consensus that many new power
plants were urgently needed with a graphic which
featured a steep upward slopping demand curve formed by
the words “Guidelines for Growth of the Electric
Power Industry.”
Calvert Cliffs
quickly morphed from a challenge to the
specific plant into a test case to challenge the AEC’s
post-NEPA rules for the consideration of the
environmental impacts of partial as its authority was
shared with state and local governments. Nuclear power
plants were industrial facilities and had to obtain
local zoning approval, but this was often perfunctory
and obtained after the siting decision had been made.
Power plants were seen by many small communities as an
ideal guest; they paid high taxes but required few
services. The decision to site and build Calvert
Cliffs followed this pattern.
Baltimore Gas power
plants in licensing proceedings. Calvert Cliffs
Coordinating Committee was picked over other groups
challenging plants in the East and Midwest as the lead
plaintiff because the site was well known to the small
environmental law community in Washington and their
standing to bring the suit seemed easy to establish
should it be contested. Many members of organizations
such as the Sierra Club or the Conservation Foundation
had homes on Maryland’s western shore or sailed in the
area.
The Committee was an ad
hoc group formed in response to a study by a group of
John Hopkins University scientists, now deceased, about
the potential adverse impacts of radiological emissions
and thermal discharges from the proposed plant on the
Chesapeake Bay’s ecosystem. After the study was made
public, Jess W. Malcolm, the executive director of the
recently founded Chesapeake Bay Foundation, founded the
Coordinating Committee to serve as an umbrella for all
groups protesting the plant.
Their representation of
all but one of the groups that had participated in the
AEC licensing proceedings allowed them to challenge the
AEC’s NEPA rules, as an agency aggrieved party, directly
in the United States Court of Appeals for the District
of Columbia.
Originally, the Committee
approached James Moorman, a young lawyer practicing in a
small nonprofit NGO, the newly created Center for Law
and Social Policy, James Moorman who later served as the
Assistant Attorney General for Lands and Natural
Resources during the Carter Administration, was one of
the first lawyers to practice what we now call
environmental law, took on the case on behalf of the
Sierra Club and National Wildlife Federation. Moorman
prepared a memo which outlined a wide range of possible
federal and common law theories of relief in
anticipation of a federal district court case. However,
an overworked Moorman quickly gave the case to another
small recently formed for profit public interest law
firm, Berlin, Kessler and Roisman.
Tony Roisman had been
drawn into environmental law through the efforts of
Malcolm Baldwin, the Senior Legal Associate at the
Conservation Foundation and a major strategic thinker
about the need for an environmental law (theories that
could be used to sue government agencies and polluters)
which did not then exist.
Another plaintiff’s
lawyer Myron Cherry, was the leader of a largely then
unsuccessful campaign of legal and political guerilla
warfare against the AEC and public utilities to stop the
licensing of a number of newly planned nuclear power
plants. Roisman changed the case from a potentially long
federal district court trial to a direct appellate
review of an agency rule making because he thought the
case would be a perfect vehicle to put teeth into the
recently enacted NEPA. He basically put aside the
Moorman memo and began to prepare for a NEPA suit.
To do so, he began to
appear in various individual AEC licensing proceedings
to make an administrative record to support his
challenge the AEC’s NEPA rules. Roisman wanted the AEC
to be the first major NEPA case because, unlike most
other federal agencies, it had considerable
environmental science expertise in the national
laboratories that Congress had created to support the
civilian use of nuclear power. As a former Internal
Revenue Service lawyer, he was much more comfortable
with appellate and understood the arguments necessary to
convince a court of appeals to remand an administrative
rule making.
The AEC helped Roisman’s
case by issuing NEPA compliance rules which shifted most
of the burden of environmental reviews to the staff and
utilities. After the Act’s passage, the agency
instituted a notice and comment rule making proceeding
and at the end of 1970 issued Appendix D to its
licensing rules.
Appendix D required all
applicants for a construction permit to submit an
“environmental report.” When the applicant applied for
an operating license, a second report noting any changed
factors had to be submitted. The Commission’s regulatory
staff had to use the reports to prepare a detailed
statement of the environmental costs and benefits and
alternatives of the plant. However, the environmental
factors raised by this process did not have to be
considered by the hearing board which made the ultimate
license recommendations to the full Commission. Hearing
boards had to conduct an independent review of all staff
recommendations except environmental ones. An
independent review was only required if outside
parties or a staff member affirmatively raised an
environmental issue.
The trick would be to
convince the court that the AEC’s compliance efforts
fell short of these duties because NEPA required a full
consideration of the environmental impacts of each
individual nuclear plant early in the licensing process
and that NEPA created a cause of action for NGOs. The
winning strategy was to identify four specific instances
of noncompliance.
Two were challenges to
the AEC’s decision to limit the rules to proceedings
commenced before the statute took effect. However, the
real targets were the provisions that excused the
hearing board from analyzing environmental issues
considered by the staff unless either outside members or
the staff affirmatively raised them and the rules
exempting the Commission from an independent evaluation
and balancing of environmental factors if “other
responsible agencies” had certified that their
environmental standards were satisfied, i.e., state
agency certification that the plant’s discharges
complied with applicable water quality standards.
The Court of Appeals
Decision
Calvert Cliffs
was not the first NEPA case, but it was
the first to make it clear the courts should enforce the
statute against the entire federal bureaucracy. Lawyers
litigating used NEPA as an additional reason to construe
a statute or dealt with issues such as party standing or
the retroactivity of the statute. Good lawyering and a
“dream panel” allowed the Calvert Cliffs
plaintiffs to influence the future of environmental law
worldwide by creating a duty of strict compliance with
NEPA’s “procedural” duties.
The opinion was authored
by Judge J. Shelly Wright, whose background and close
observation of Federal agencies made him very receptive
to the plaintiff’s arguments. Judge Wright was appointed
by President Truman to the Eastern District of Louisiana
and distinguished himself by strictly enforcing Brown
v. Board of Education and other anti-discrimination
Supreme Court precedents in a hostile environment. When
one of the leaders of southern resistance to
segregation,
Senator James Eastland of
Mississippi, blocked Wright’s nomination to the Fifth
Circuit, President John F. Kennedy appointed him to the
District of Columbia Circuit Court of Appeals. Judge
Wright’s Louisiana experience made him a firm believer
in the need for judicial protection for those excluded
from political power.
Environmental protection
has never precisely fit this model because
environmentalists have never lacked access to political
power and are not an insular minority. However, in the
late 1960s and early 1970s, the idea of the need for
institutionalized environmental protection was just
becoming recognized and few could foresee the breath and
depth of the laws passed by Congress in the 1970s.
Environmentalists felt
themselves to be a small, embattled minority facing
powerful, entrenched government agencies whose missions
seemed to be to change irrevocably the natural landscape
for the worse and to endanger public health. There was
much talk of agency “capture” by the “regulated
community” in those days. Judge Wright shared then
growing skepticism about the federal bureaucracy’s
ability to adapt to these values given their entrenched
missions.
Federal courts were
beginning to abandon the cardinal principle of New Deal
Administrative Law--extreme deference to agency
expertise--and adopting more probing standards of
judicial review as a reaction to the narrowness of
agency decisions. The expert agency model was being
replaced with one of the agency as forum for resolving
conflicts among competing interests or, in contemporary
terms.
The plaintiff’s primary
argument was that the rules did not comply with NEPA
because they did not require early and independent
agency evaluation of all environmental impacts of
nuclear power plants. To counter this, the AEC and the
public utility interveners tried to convince the court
NEPA compliance duties were “flexible” and Appendix D
constituted sufficient compliance because the agency
accepted that NEPA expanded its jurisdiction.
The government’s primary
defense was that NEPA permitted, if not required, that
the agency defer to state and federal water quality
agencies and that this was good policy as the AEC was
“without developed competence” in all environmental
areas.
To support the
flexibility argument, the Commission and the interveners
relied on scattered statements in early district court
decisions that NEPA duties were flexible, i.e.
discretionary. Ultimately, the case raised two
fundamental, hard questions in addition to those raised
by the AEC rules. Did NEPA create judicially enforceable
duties and if so, what was the standard of compliance?
There is no doubt that
the drafters of NEPA intended that it would have
substantive consequences. Section 101 declares a set of
far-reaching aspirational policies that all federal
agencies must apply and implement. However, judicial
enforcement of these substantive policies does not
follow from Section 101. Section 101's breath caused a
problem for lawyers and judges because it did not easily
yield a consistent set of standards. Courts require that
a statute contain some ordering of competing,
inconsistent interests before they will use a statute to
control agency action.
One scholar speculates
that Senator Jackson did not develop a detailed
legislative record on the assessment process that might
have structured judicial enforcement because he viewed
the EIS process as a management tool, “largely internal
to the federal bureaucracy” as agencies transformed
themselves and, ironically in light of Calvert
Cliffs, because “environmental lawyers had not yet
become a force in administrative politics.”
Judge Wright recognized
the difficulty of deriving consistent standards from
NEPA and dealt with it by a familiar dichotomy which has
dominated NEPA jurisprudence. His opinion styled
Section 101 as substantive and thus soft and Section 102
as procedural and hard. Although Judge Wright
fundamentally shifted the focus of NEPA from the
substantive to the procedural, he held out the
tantalizing possibility that the Act was also
substantive in the rare case where “the actual balance
of costs and benefits that was struck was arbitrary.”
Judge Wright was
therefore able to answer the first hard question with a
resounding “yes” in the ringing tones of an Old
Testament Prophet and thus launched environmental law.
He asserted the need for a strong judicial role to
enforce “the commitment of the Government to control, at
long last, the destructive engine of material progress”
and that “[o]ur duty . . . is to see that important
legislative purposes, heralded in the halls of Congress,
are not lost or misdirected in the vast hallways of the
federal bureaucracy.
“Thus he created a cause
of action in the face of legislative history that was
ambiguous at best. This duty was primarily found in the
language of Section 102(c) which provides that all
agencies of the federal government shall: “include in
every recommendation or report on proposals for
legislation and other major Federal actions
significantly affecting the quality of the human
environment, a detailed statement by the responsible
official on--(I) the environmental impact of the
proposed action, (ii) any adverse environmental effects
which cannot be avoided should the proposal be
implemented, (iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of
man’s environment and the maintenance and enhancement of
long-term productivity, and (v) any irreversible and
irretrievable commitments of resources which would be
involved in the proposed action should it be
implemented.”
Judge Wright concluded
that the NEPA the legislative history of Section 102
(2), some of which was written by Myron Cherry,
envisioned full compliance unless clearly prohibited by
existing law. Thus, if an agency decision is “reached
procedurally without individualized consideration of and
balancing of environmental factors--conducted fully and
in good faith--it is the responsibility of courts to
reverse.”
His rejection of the
Commission’s argument that they lacked the authority to
consider thermal pollution followed from the court’s “to
the fullest extent possible” doctrine. The court
construed Sections 102 and 103 of NEPA to create a
presumption of authority to comply unless compliance was
clearly inconsistent with the agency’s existing
statutory mandate. This conclusion is consistent with
the intent of Senator Jackson, although the wording
supports only a more limited reading. If an agency could
comply with NEPA under their existing authority, they
must.
The substance-procedure
dichotomy solved one barrier to invalidation of the
AEC’s rules by avoiding the hard question of whether
NEPA contained sufficient substantive standards to
evaluate an agency outcome. However, the focus on
procedure did not fully justify the remand for two
reasons. First, the AEC, unlike some other agencies, had
not ignored NEPA; it was quite aware that it was one of
the principal targets of the legislation. Second, it was
not clear what procedure the statute mandated. There was
no pre-existing model for an environment impact
assessment. An assessment is not a classic trial
type-procedure because the inevitable scientific
uncertainties about future impacts make it more than a
search for “the truth.” To construct a model of good
NEPA procedure, Judge Wright fell back on another
familiar legal principle then much in vogue and
suggested to Petitioners: the need to balance competing
factors and combined it with the idea of an affirmative
duty to consider environmental values. He found the
AEC’s environmental policy “a mockery of the Act”
because it did not require an independent Commission
balancing of environmental factors. The Commission’s
“responsibility is not simply to sit back, like an
umpire, and resolve adversary contentions at the hearing
stage. Rather, it must take the initiative of
considering environmental values at every distinctive
and comprehensive stage of the process beyond the
staff’s evaluation and recommendation.”
The Immediate Impact of
Calvert Cliffs
Calvert Cliffs
had a dramatic immediate impact on the
nuclear industry, although ultimately not on the
Calvert Cliffs plant. Baltimore Gas and Electric
decided to go ahead with the plant and prepared a full
environmental impact statement; the first unit came on
line in 1975. Today, the plant is a well-recognized
landmark on Maryland’s western shore. Two 850-megawatt
generating units produce power for about one-third of
the electricity customers in Maryland.
The initial licenses were
valid through 2014 and 2016 from the Nuclear Regulatory
Commission, but in 2000, Calvert Cliffs became
the first nuclear plant to receive a license extension.
Somewhat ironically, the
critical comments on the draft EIS prepared by the Union
of Concerned Scientists noted the extensive discussion
of fish and shellfish impacts but criticized the NRC
staff for deeming the possible existence of a cancer
cluster near the plant as “outside the scope of
environmental reviews.”
An historian of the
anti-nuclear movement described Calvert Cliffs as
“the judicial opinion that had the most detrimental
consequences on the development of nuclear power.” It
stopped the licensing of all nuclear plants for eighteen
months and fundamentally changed the nature of AEC
licensing.
The case is therefore a
validation of the power of lawsuits to delay actions and
ultimately bring about administrative and political
change. Nuclear power’s allure dimmed in the 1970s. The
AEC’s promotional and regulatory functions were split in
1974. The Carter Administration’s decision not to
reprocess spent fuel for national security reasons
created a back-end waste disposal problem that remains
unsolved to this day. The two oil price shocks in 1973
and 1979 helped to spur energy conservation and contrary
to the FPC’s once endless upward slopping demand curve,
the demand for energy fell. No new nuclear plants came
on line after Three Mile Island in 1979, and in the
1980s utilities, courts and public utility commissions
struggled with the question of who should pay for
cancelled or moth balled nuclear plants.
The Importance of the
Case Today
Calvert Cliffs
cemented the principle that the potential
adverse environmental impacts and available alternatives
of a wide range of government sponsored and licensed
activities should be rigorously assessed in advance of
the activity. It created a “common law” of impact
assessment with substantial consequences for agency
noncompliance. Calvert Cliffs and its progeny
democratized NEPA and environmental protection generally
by (1) allowing citizens to challenge the agency's
decision not to prepare an EIS as well as its adequacy,
(2) creating inducements for agencies to open the
scoping process to public involvement through comments,
and (3) by defining adequacy with sufficient detail that
the agencies have opened up their processes to public
involvement and outside sources of information to
foreclose legal challenges to the final EIS.
However, the formulation
of affirmative environmental policies--the original
purpose for enacting the statute--has become
increasingly divorced from the EIS process and NEPA has
not developed in all the ways that Judge Wright
envisioned. Both Calvert Cliffs and subsequent
Supreme Court decisions contributed the emphasis on
process over substance or outcomes.
Judge Wright seems to
have envisioned a more extensive EIS process than did
Senator Jackson, and Judge Wrights view briefly
prevailed. Judge Wright assumed that the agency would
assemble the relevant environmental information and then
use this information to make a reasoned choice,
balancing between environmental and non-environmental
values. However, this “rather finely tuned and
`systematic’ balancing analysis” was immediately
criticized by environmental lawyers and others as
undermined by the substance-procedure dichotomy.
Instead of forcing agencies to prefer more
environmentally sustainable options, the dichotomy
ensures that all that an agency need only seriously
consider environmental values by displaying adverse
impacts and agonizing a bit over the consequences of the
proposed decision. There is no pressure to prefer
consistently environmental to non-environmental
outcomes.
Nonetheless, initially
inspired by Calvert Cliffs, a few district and
circuit courts of appeals used NEPA to probe deeply into
agency decision-making.
The District of Columbia
Circuit Court of Appeals continued to read NEPA broadly
and did not draw a hard and fast distinction between
substantive and procedural review. It reversed major
agency constructions of the Act in the spirit of
Calvert Cliffs. Natural Resources Defense Council
v. Morton held that, within reason, an agency had a
duty to consider alternatives that it did not have the
power to adopt or which required legislative
authorization. In 1973, the Court, per Judge Wright,
adopted a broad balancing test to determine when an EIS
should be prepared for an on-going nuclear research
program.
The uneasy balance
between substance and procedure did not hold. The
“detailed” EIS process that characterizes NEPA
compliance has become a much more formal process limited
to information disclosure rather than the balancing
envisioned by Judge Wright. In the end, the analogy
between an impact statement and Securities and Exchange
Commission filing prevailed over Judge Wright’s
balancing theory. In 1972, a federal district judge
tossed off the sentence that “[a]t the very least NEPA
is a full disclosure law . . .” This characterization of
NEPA has been repeated consistently and has come to
stand for the truthful teenager rule: as long as the
agency discloses the required range of alternatives and
adverse impacts, it has fulfilled its NEPA duties
regardless of the environmental impact of the decision.
Judge Wright’s view of
NEPA was ultimately quashed by a series of Supreme Court
decisions which vary between indifference and hostility
toward NEPA. The Court has instructed lower courts to
defer to agency determinations of the scope of relevant
alternatives and on whether the agency was in fact
engaged in regional plan or other similar action. It
held that NEPA is limited to the physical environment
and has turned the intent of the drafters on its head by
holding that the Act does apply to appropriations
requests.
Finally, in 1980 the
Court held NEPA does not permit a court to question the
substantive decision taken by the agency, regardless of
the environmental consequences of the decision. As the
Court subsequently put it, “NEPA itself does not mandate
any particular result, but simply prescribes the
necessary process.”
More generally, the Court
has often spoken glowingly about the importance of NEPA
but it has never reversed an agency’s application of the
statute. In spite of the Supreme Court’s contraction of
the Act, NEPA litigation has been a constant feature of
environmental law. Litigation is fueled by the fact that
since 1970, over 25,000 EISs have filed. Complete
statistics on the number on the number of NEPA cases do
not exist. The leading treatise, NEPA: Law and
Litigation, lists over 3,000 Supreme Court, circuit
court of appeals and district court cases decided since
Calvert Cliffs. Not surprisingly, since agencies
have become more adept at compliance, it is harder to
win NEPA cases alleging an inadequate EIS but plaintiffs
continue to win them. The easiest case to win is when an
EIS carries its own “death wound.” For example, courts
have reversed and remanded EISs where the agency’s
conclusion that there were no significant environmental
impacts was inconsistent with the agency’s own experts.
Courts are also much more
willing to remand an EIS for an inadequate discussion of
“secondary alternatives,” alternatives that do not
modify the project but are much less environmentally
destructive. The Supreme Court, however, has indicted
little willingness to require supplement EISs when new
scientific information comes to light.
In the end the importance
of Calvert Cliffs lies in what it set in motion
within the agencies and throughout the world rather than
in specific decisions holding that an EIS was
inadequate. One of the editors of this series argues
that “NEPA’s greatest contribution is the environmental
impact statement itself.” Judicial enforcement quickly
led to an agency and industry culture of compliance or
at least begrudging acceptance. One of the most
important, but difficult to measure, indices of NEPA is
the dogs that it would not let hunt. For example, the
very beginning, the Council on Environmental Quality
reported on projects dropped or changes made in them
because problems exposed in the EIS process.
Despite NEPA’s widespread
acceptance in the United States and throughout the world
it is difficult to evaluate NEPA’s long term impacts
conclusion because no cross-isciplinary consensus exists
on the relative criteria to assess the success of the
Act.
What is clear is that the
EIS process continues to be contested and criticized.
Opponents of NEPA argue that the process is too costly
both in terms of EIS preparation and the delays that it
causes to important activities.
Supporters of NEPA have
criticized the gap between the collection of information
and the actual decision. They have sought ways to return
NEPA to its original purpose: the reorientation of
federal agencies. NEPA debate is long standing, it has
taken a new turn as the Administration of George W. Bush
has engaged in a concerned effort to weaken the statute.
Conclusion
Calvert Cliffs
played a major role in establishing the
EIS process as a fundamental principle of environmental
law. Calvert Cliffs helped to initiate a
worldwide transition in the way in which decisions that
threaten to impair the physical environment are made.
Unfortunately, the case
also helped to divorce the process of EIA from the
underlying objectives of NEPA. Ultimately, the United
States practice has fallen short of the transformation
that the drafters of NEPA and Judge Wright envisioned.
Perhaps, no more than the launch of a powerful legal
ideal can be expected from even a self-consciously
transformative decision. As Dean Kathleen Sullivan has
said of the recent criticisms that Brown v. Board of
Education failed to achieve real racial integration,
“[i]t is too much to ask of a legal decision that it
generate on its own the vast and complicated set of
social policies to fulfill it.”
