Substance and Procedure in the Construction of the National Environmental Policy Act

In 1969 Congress enacted the National Environmental Policy Act (NEPA or Act) in an effort to deal with the many environmental problems facing the United States. In the three years that the Act has been in force, a large number of suits has been filed by environmental organizations seeking to enforce the standards enunciated in NEPA. The courts hearing these cases generally agree that NEPA imposes only procedural duties on administrative agencies. This implies that the courts will merely determine whether the agency in question has complied with the procedural requirements contained in Section 102 of the Act. This further implies that the courts will not review this same agency’s final decision to undertake, or not to undertake, a given project even if the project may have a severe environmental impact. In an attempt to determine whether this approach fulfills the policies stated in the Act, this article examines the recent trends facilitating judicial review of an agency’s actions, discusses the developing judicial construction of NEPA, and seeks to determine whether the courts’ refusal to give substantive meaning to NEPA has undermined the Act.