WHAT DOES IT MEAN TO COMPLY WITH NEPA?: AN INVESTIGATION INTO WHETHER NEPA SHOULD HAVE PROCEDURAL OR SUBSTANTIVE FORCE

Abstract

Since its enactment in 1970, the National Environmental Policy Act (NEPA) of 1969 has produced countless lawsuits by parties alleging some government agency failure to meet the procedural requirements mandated by NEPA's statutory provisions and the Council of Environmental Quality's (CEQ) corresponding regulations. Typical NEPA challenges involve either an agency's failure to complete an adequate environmental impact statement (EIS) or an agency's approval of a project in light of an EIS that demonstrates the negative impact the proposed action will have on the environment. This Note will examine a unique form of a NEPA challenge to an agency decision. First, the agency completes an EIS, finding that the "preferred alternative" is the approval of a proposed action, because the effects on the environment are minimal. Then, in its record of decision (ROD), the agency concludes the effects on the environment have not been adequately considered and decides not to approve the proposed action, a decision completely at odds with the findings of the EIS. This sequence of events is not a whimsical hypothetical. This NEPA situation was recently litigated in Skull Valley Band of Goshutes Indians v. Davis. At the outset, it should be recognized how this NEPA challenge differs from others.