Environmental Management: Principles and practice

The 1969 US National Environmental Policy Act (NEPA) —
‘environmental Magna Carta’?
Discussions leading to NEPA began in the early 1960s, when the need was perceived
for the USA to have a basic declaration of national environmental policy and an
action-forcing provision. The US Government was largely reacting to public opinion
that conventional planning did not adequately take account of the environment; it
already had responsibility to steward resources and protect the environment under
the Public Trust Doctrine. However, before NEPA the USA had little effective federal
control over the environment and lacked land use regulations which some other
countries had. NEPA was signed into US Law on 1 January 1970, to reform federal
policy-making, and influence the private sector to reorientate values (Barrow,
1997:168). Originally it was intended that NEPA would change the nature of federal
decision-making. However, it has become more of a procedural requirement. Caldwell
(1989) —one of the architects of NEPA—felt that, had it not happened in the USA,
something similar would have appeared elsewhere.
NEPA required environmental impact assessment (EIA) prior to federally
funded projects that might ‘significantly’ affect the environment—a message to
officials to ‘look before you leap’. NEPA Section 101 set regulations to protect the
environment, Section 102 (2) (c) ensured they were pursued, and Section 103 included
provision for EIA statements to be challenged in court. That happened a lot at first
because NEPA was untested and used expressions like ‘significant’ and ‘human
environment’ that were poorly defined. There was also some need to clarify which
developments required EIA, and how and by whom it was to be conducted.
Virtually the world’s first use of the expression ‘EIA’ occurs in Section 102
(2) c of NEPA, which requires US federal agencies to prepare an environmental
impact statement (EIS) (bearing the costs against taxes, and sending copies to federal
and state agencies and to the public) using EIA, prior to taking action.
There were three main elements in NEPA:
1
NEPA announced a US national policy for the environment.
2
It outlined procedures for achieving the objectives of that policy.
3
Provision was made for the establishment of a US Council on Environmental
Quality (CEQ) which was to advise the US President on the environment,

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review the EIA process, review draft EISs, and see NEPA was followed. Also in
1970 the US Government created the US Environmental Protection Agency
(EPA), its brief to co-ordinate the attack on environmental pollution and to be
responsible for the EIA process (the EPA is in effect ‘overseer’ of impact as-
sessment in the USA).
NEPA was the first time US Law had really allowed for development to be
delayed or abandoned for the long-term good of the environment, and for efforts to
be made to co-ordinate public, state, federal and local activities. Effectively, NEPA
put environmental quality on a level with economic growth, a revolution in values in
a country where state intrusion was anathema—for this reason many see it as a sort
of Magna Carta, although it stopped short of making a healthy environment a
Constitutional Right. Public participation is written into NEPA to the extent it might
be described as a corner-stone.
NEPA is statutory law: it was written after deliberation, and did not evolve from
custom, practice or tradition. Consequently, like a charter, it was imperfect; there were
problems, especially delay, as litigation took place over various issues. Many felt NEPA
had been abducted by lawyers and could become a bureaucratic delaying tactic. These
teething problems have largely been resolved, although some feel NEPA should be
strengthened, possibly leading to changes in the US Constitution to better manage the
environment (Caldwell, 1989). NEPA has been a seminal concept and catalyst for EIA
in other countries, although bodies like the Canadian Environmental Assessment
Research Council and the International Association for Impact Analysis also deserve
credit for spreading and developing mandatory development review processes.
Effective implementation of EIA demands legislation and law enforcement to
ensure that:
♦
there are no loopholes, so that no activity likely to cause impacts escapes EIA;
♦
the assessment is adequate;
♦
the assessment is heeded;
♦
the public are kept sufficiently informed or, ideally, involved in assessment.