National Environmental Policy Act
Citations: 42 U.S.C. §§ 4321–4347 (2012); enacted Jan. 1, 1970, by Pub. L. No. 91-190; 83 Stat. 852. Amended by Pub. L. No. 94-52, § 2, July 3, 1975, 89 Stat. 258; Pub. L. No. 94-83, Aug. 9, 1975, 89 Stat. 424; Pub. L. No. 112141, Div. A, Title I, Subtitle C, § 1319, July 6, 2012, 126 Stat. 551. Lead Agency: Council on Environmental Quality, The White House, 722 Jackson Place NW, Washington, DC 20500, (202) 456-6224, http://www.whitehouse.gov/ceq. Overview: The National Environmental Policy Act (NEPA) was the first federal statute to use the “impact statement” approach in federal regulation. Its purpose is to require federal agencies to analyze and consider the environmental impact of their actions in an open and public process. The Act also created the Council on Environmental Quality within the Executive Office of the President. Environmental Impact Statements. The core of NEPA is found in section 102(2)(C) (codified at 42 U.S.C. § 4332(2)(C)), which creates the environmental impact statement (EIS) requirement. The provision requires that: all agencies of the Federal Government . . . 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.
The provision goes on to require the responsible federal official to consult with and seek comments from other affected agencies. Copies of the statements and relevant comments must be made public and must accompany the proposal through the agency review process. Despite language in NEPA that might be construed otherwise, the Supreme Court has held that NEPA does not impose any substantive requirement on agencies to favor the environment in the agency’s decisionmaking. See Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980). Notwithstanding the lack of substantive requirements, NEPA has been the source of an extremely large number of challenges to agency action, arguing either that the agency failed to prepare an EIS when NEPA required it or that the EIS that the agency prepared was inadequate. Even after 45 years, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements. Council on Environmental Quality Role. The Council on Environmental Quality (CEQ), created by title 11 of the Act, is the legal overseer of NEPA and in its early years was active in shaping NEPA law. Until 2000, it prepared extensive annual environmental quality reports pursuant to 42 U.S.C. § 4341, which was effectively repealed in that year. The Council took the lead in developing appropriate procedures for EIS preparation. In President Nixon’s Executive Order 11,514 (Mar. 5, 1970), issued shortly after NEPA’s passage, he gave CEQ the authority to issue guidelines to agencies for the preparation of EISs. The CEQ’s original guidelines (36 Fed. Reg. 7724-29 (Apr. 23, 1971)) were nonbinding but were relied upon by most federal agencies when promulgating their own procedures. In 1977 President Carter significantly expanded CEQ’s authority by giving it the power to issue binding regulations in Executive Order 11,991 (May 24, 1977). These regulations, issued on November 28, 1978 (43 Fed. Reg. 55,978–56,007), are codified at 40 C.F.R Parts 1500–1508 and are contained in the Appendix to this chapter. The Supreme Court has since treated these regulations as deserving substantial deference. See Andrus v. Sierra Club, 442 U.S. 347 (1979). The CEQ regulations cover many of the procedural issues that have emerged in the extensive litigation over the meaning of the Act’s terms. The regulations provide comprehensive guidance on what constitutes a “major federal action” requiring an EIS, the preparation of draft, supplemental and final statements, page limits, recommended format and content (all in 40 C.F.R Part 1502); the comment process (Part 1503); predecision referral of interagency disputes to CEQ (Part 1504); integration with agency decisionmaking (Part 1505); elimination of duplication with state and local requirements and procedures for filing with EPA (Part 1506); and agency compliance (Part 1507). In addition to the regulations, CEQ also provided continuing guidance to agencies on implementation of NEPA. For example, in 1981 it published the “Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations,” which is also contained in the Appendix to this chapter. In April 1981 it issued a “Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping” on the subject of “scoping guidance.” In 1983, after a solicitation of comments on the existing regulations and a two-year review process, the Council published a supplemental memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum on the subject of pollution prevention and NEPA. In 1997, it issued two guidance memoranda, one on cumulative effects analysis under NEPA and the other on considering environmental justice under NEPA. In 2002, CEQ established a NEPA Task Force to undertake a thorough review of NEPA implementation. The Task Force’s report, Modernizing NEPA Implementation, was issued a year later. It contained recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient. More recently, CEQ has provided guidance on the use of categorical exclusions (in which agencies may exempt certain actions from NEPA review) and on the use of mitigating measures to avoid a finding of significant impact on the environment. In addition, in 2010 it issued draft guidance on how to consider the effects of climate change with respect to federal actions. On December 18, 2014, a revised guidance document was published for comment. The comment period closed on March 25, 2015. According to the CEQ website: This guidance explains that agencies should consider both the potential effects of a proposed action on climate change, as indicated by its estimated greenhouse gas emissions, and the implications of climate change for the environmental effects of a proposed action. The guidance also emphasizes that agency analyses should be commensurate with projected greenhouse gas emissions and climate impacts, and should employ appropriate quantitative or qualitative analytical methods to ensure useful information is available to inform the public and the decision-making process in distinguishing between alternatives and mitigations. It recommends that agencies consider 25,000 metric tons of carbon dioxide equivalent emissions on an annual basis as a reference point below which a quantitative analysis of greenhouse gas is not recommended unless it is easily accomplished based on available tools and data. Unlike the 2010 draft guidance, the revised draft guidance applies to all proposed Federal agency actions, including land and resource management actions. It reflects CEQ’s consideration of comments received on the 2010 draft guidance in addition to other Federal agency and affected stakeholder input. It does not create new or additional regulatory requirements. The CEQ also compiles annual data on the number of environmental impact statements filed by agencies and the trends in NEPA litigation. This information is available online at https://ceq.doe.gov/current_developments/ eis_filings.html. Originally, under 42 U.S.C. § 4342, the CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman. Legislative History: Senators Jackson and Stevens introduced S. 1075, the original NEPA legislation, on February 18, 1969. It authorized the Secretary of the Interior to conduct a research program on environmental problems and created the Council on Environmental Quality. A hearing was held April 16, 1969 during which witnesses (primarily Lynton Caldwell, professor of political science at Indiana University) urged the creation of an “action-forcing” mechanism, which later became the environmental impact statement. S. 1075 was reported with amendments and an accompanying report of the Senate Committee on Interior and Insular Affairs on July 9, 1969. The following day the bill passed the Senate unanimously. A House of Representatives’ subcommittee of the Committee on Merchant Marine and Fisheries held a series of hearings during May and June 1969 on various related bills. On July 1, 1969, Representative Dingell and others introduced H.R. 12,549, which became the leading House bill. It, however, lacked the impact statement requirement. On July 11, 1969, the full Committee reported H.R. 12,549. A supplemental report was filed on July 19. On September 23, 1969, the House passed the Senate bill, but only after substituting the text of the House bill in place of the Senate’s language. It then requested a conference. On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became Pub. L. No. 91-190 on January 1, 1970. Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66, § 3003, 109 Stat. 707 (1995), as amended by Pub. L. No. 106113, Div. B, § 1000(a)(5), 113 Stat. 1536 (1999). Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” See Pub. L. No. 109-54, Title III, 119 Stat. 543 (2005). This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council, see H.R. Rep. No. 104-628 104th Cong., 2d Sess. 70 (1996). Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. No. 112-141, 126 Stat. 405 (2012), a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning. Source Note: There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the Council on Environmental Quality. A selection of various books and articles on diverse aspects of NEPA practice and procedure is included in the Bibliography. Bibliography: I. Legislative History 1. Congressional White Paper on a National Policy for the Environment submitted to the United States Congress under the Auspices of the Senate Committee on Interior and Insular Affairs and the House Comm. on Science and Astronautics, 90th Cong., 2d Sess. (Committee Print 1968). 2. Joint House-Senate Colloquium to Discuss a National Policy for the Environment, Hearing before the Senate Comm. on Science and Astronautics, 90th Cong., 2d Sess. (Committee Print 1968). 3. Staff of Subcomm. on Science, Research, and Development of the House Comm. on Science and Astronautics, 90th Cong., 2d Sess. Report of Managing the Environment (Committee Print 1968). 4. Conference Report on S.1075, H.R. Rep. No. 91-765 (Dec. 17, 1969); reprinted in 1969 U.S. Code Cong. & Ad. News 2767. 5. Senate Comm. on Interior and Insular Affairs, Report to Accompany S.1075, S. Rep. No. 91-296 (July 9, 1969), 91st Cong., 1st Sess. 6. House of Representatives Committee on Merchant Marine and Fisheries, Report to Accompany H.R. 12,549, H.R. Rep. No. 91-378 (July 11, 19, 1969), 91st Cong., 1st Sess., reprinted in 1969 U.S. Code Cong. & Ad. News 2751. 7. Comments from Congressman Ribble on an Amendment to H.R. 4348, April 18, 2012, Cong. Rec. H1946–55. 8. MAP-21 Conference Report to Accompany H.R. 4348, Committee on Conference, House of Representatives, 112th Cong., 2d Sess., at 598 (June 28, 2012). II. Other Government Documents 1. Council on Environmental Quality, Environmental Quality Annual Reports, 1970-1997 (when discontinued), available at https://ceq.doe.gov/ ceq_reports/annual_environmental_quality_reports.html. 2. Hearings on Administration of the National Environmental Policy Act Before the Subcomm. on Fisheries and Wildlife Conservation, H. Comm. on Merchant Marine and Fisheries, 91st Cong., 2d Sess. (Committee Serial 91-41, 1971) (2 parts). 3. Council on Environmental Quality, Environmental Impact Statements: An Analysis of Six Years’ Experience by Seventy Federal Agencies (Mar. 1976). 4. Hearings on National Environmental Policy Act Oversight Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t Before the H. Comm. on Merchant Marine and Fisheries, 94th Cong., 1st Sess. (Committee Serial 94-14, 1976). 5. Staff of Senate Comm. on Interior and Insular Affairs, Council on Environmental Quality: Oversight Report, 94th Cong., 2d Sess. (Committee Print 1976). 6. Hearings on CEQ Implementation of the National Environmental Policy Act Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t, House Comm. on Merchant Marine and Fisheries, 95th Cong., 2d Sess. (Committee Serial 95-35, 1978). 7. Executive Order 11,514, Protection and Enhancement of Environmental Quality, March 5, 1970, reprinted as amended in Codification of Presidential Proclamations and Executive Orders, Jan. 20, 1961–Jan. 20, 1981, 717 (Office of the Federal Register, GSA, 1981) (Incorporates Executive Order 11,991, issued May 24, 1977). 8. Council on Environmental Quality, Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping (Apr. 30, 1981) (http:// energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf). 9. Hearings on Implementation of the National Environmental Policy Act by the Council on Environmental Quality Before the Subcomm. on Toxic Substances and Envtl. Oversight Before the S. Comm. on Env’t and Public Works, 97th Cong., 2d Sess. (Committee Serial 97-H56, July 21, 1982). 10. Council on Environmental Quality, Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34,263–68 (July 28, 1983) (http://energy.gov/sites/ prod/files/nepapub/nepa_documents/RedDont/G-CEQ-Guidance Regulations.pdf). 11. Hearings on Compliance with the National Environmental Policy Act of 1969 Before the Subcomm. on Hazardous Wastes and Toxic Substances, S. Comm. on Environmental and Public Works, 100th Cong., 1st and 2d Sess. (S. Hrg. 100-509, Nov. 24, 1987; Jan. 14, 1988). 12. Council on Environmental Quality, Memorandum to Heads of Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act, 58 Fed. Reg. 6,478–81 (Jan. 29, 1993) (http:// energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQPollutionPreventionNEPA.pdf). 13. Council on Environmental Quality, Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act, January 1993 (http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-BiodiversityConsiderations.pdf). 14. Executive Order 12,852, President’s Council on Sustainable Development, 58 Fed. Reg. 39,107 (July 19, 1993). 15. Executive Order 12,898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations, 60 Fed. Reg. 6,381 (Feb. 11, 1994). 16. Council on Environmental Quality, The Twenty-fifth Anniversary Report of the Council on Environmental Quality (1994-1995) (http:// clinton4.nara.gov/media/pdf/front_1.pdf). 17. Hearing on the Application of the National Environmental Policy Act Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong., 1st Sess. (S. Hrg. 10481, June 7, 1995). 18. Hearing on the Efforts by the Federal Land Management Agencies to Strengthen the National Environmental Policy Act Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong., 2d Sess. (S. Hrg. 104-775, Sept. 26, 1996). 19. Council on Environmental Quality, Considering Cumulative Effects Under the National Environmental Policy Act (Jan. 1997). available at http:/ /energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQConsidCumulEffects.pdf. 20. Council on Environmental Quality, Guidance on NEPA Analyses for Transboundary Impacts (1 July 1997), available at https://www.gc.noaa.gov/documents/transguide.pdf.http://energy.gov/sites/ prod/files/2014/08/f18/CEQTransboundaryGuidance_07_01_97.pdf. 21.20. Council on Environmental Quality, Environmental Justice Guidance Under the National Environmental Policy Act (Dec. 10, 1997), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQEJGuidance.pdf. 22.21. Oversight Hearing on the Problems and Issues with the National Environmental Policy Act Before the H. Comm. on Resources Before the H. Comm. on Resources, 105th Cong., 2d Sess. (Mar. 18, 1998). 23.22. Council on Environmental Quality, Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA (July 28, 1999), available at http://energy.gov/sites/prod/files/G-CEQ-DesigNonfedCoop Agencies.pdf. 24.23. Council on Environmental Quality, Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (January 30, 2002), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/ RedDont/G-CEQ-CoopAgenciesImplem.pdf. 25.24. Council on Environmental Quality, Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (December 23, 2004), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/ RedDont/G-CEQ-CoopAgenciesReporting.pdf. 26.25. Council on Environmental Quality, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (June 24, 2005), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQPastActsCumulEffects.pdf. 27.26. Council on Environmental Quality, Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA (September 8, 2005), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQEmergencyGuidance.pdf. 28.27. Council on Environmental Quality and Office of Management and Budget, Memorandum on Environmental Conflict Resolution (November 28, 2005), available at https://www.udall.gov/documents/Institute/OMB_CEQ_ Memorandum_2005.pdf. 29.28. Council on Environmental Quality, Aligning National Environmental Policy Act Process with Environmental Management Systems (April 1, 2007), available at http://energy.gov/sites/prod/files/CEQ_NEPA_EMS_ Guide-04-2007_1.pdf. 30.29. Council on Environmental Quality, Council on Environmental Quality Collaboration in NEPA A Handbook for NEPA Practitioners (Oct. 1, 2007), available at https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf.http://energy.gov/sites/prod/files/CEQ_Collaboration _in_NEPA_10-2007.pdf. 31.30. Council on Environmental Quality, A Citizen’s Guide to the NEPA: Having Your Voice Heard (Dec. 1, 2007), available at http://energy.gov/sites/ prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf. 32.31. Executive Order 13,514, Federal Leadership in Environmental, Energy, and Economic Performance, 74 Fed. Reg. 52,117 (Oct. 8, 2009). 33.32. Council on Environmental Quality, DRAFT NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions (Feb. 18, 2010), available at https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/nepa_final_ghg_guidance.pdf.www.whitehouse.gov/sites/default/files/ microsites/ceq/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf. 34.33. Council on Environmental Quality, Memorandum for Heads of Federal Departments and Agencies: Emergencies and NEPA (May 12, 2010) available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/ RedDont/G-CEQ-Emergencies.pdf. 35.34. Council on Environmental Quality, Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act (Dec. 6, 2010), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/ RedDont/G-CEQ-CatEx_guidance.pdf. 36.35. Council on Environmental Quality, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (Jan. 14, 2011), available at http://energy.gov/sites/ prod/files/NEPA-CEQ_Mitigation_and_Monitoring_Guidance_14Jan2011. pdf. 37.36. Council on Environmental Quality, Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act (Mar. 12, 2012), available at http:// energy.gov/sites/prod/files/NEPA_CEQGuidance_EfficientReviews UnderNEPA_03_12_12.pdf. 38.37. Council on Environmental Quality and Office of Management and Budget, OMB and CEQ Joint Memorandum on Environmental Collaboration and Conflict Resolution (Sept. 7, 2012), available at http://energy.gov/sites/ prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf. 39.38. Council on Environmental Quality, NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 (Mar. 5, 2013), available at http:// energy.gov/sites/prod/files/G-CEQ-NEPA_NHPA_Section_106_Handbook_ Mar2013.pdf. 39. Council on Environmental Quality, NEPA and CEQA: Integrating State and Federal Environmental Reviews (Feb. 14, 2014), available at http:/ /energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_ February2014_0.pdf. 40. Exec. Order 13,807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, 82 Fed. Reg. 40,463 (Aug. 15, 2017). 41. Council on Environmental Quality, Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process, 82 Fed. Reg. 43,226 (Sept. 17, 2017).
III. Books and Articles a. General Treatments 1. Ray Clark & Larry Canter, Environmental Policy and NEPA: Past, Present, and Future (CRC Press 1997). 2 Robert L. Fischman & Mark S. Squillace, Environmental Law—Environmental Decisionmaking: NEPA and the Endangered Species Act (Anderson Publishing Co., 3d ed. 2000). 3. Valerie Fogelman, Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance (Praeger 1990). 4. Robert L. Glicksman, David L. Markell, William B. Buzbee, DanielR. Mandelker & Daniel Bodansky, Environmental Protection: Law and Policy, Chapter IV (Wolters Kluwer 2011). 5. Craig N. Johnston, William F. Funk & Victor B. Flatt, Legal Protection of the Environment, Chapter 2 (West Publishing, 3d ed. 2010). 6. Daniel R. Mandelker, NEPA Law and Litigation (Clark Boardman Callaghan, 2d ed., 2014). 7. William Rodgers, Jr., Environmental Law, Chapter 9 (West Publishing, 2d ed. 1994). 8. Serge Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform (Stanford U. Press 1984). b. Seminal Law Review Articles and Monographs 1. Frederick R. Anderson, NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act (Resources for the Future, Inc.; Baltimore: Johns Hopkins University Press, 1973). 2. Richard R. L. Andrews et al., Substantive Guidance for Environmental Impact Assessment: An Exploratory Study (The Institute for Ecology, Butler Univ., 1977). 3. Eugene Bardach & Lucian Pugliaresi, The Environmental Impact Statement vs. The Real World, 49 Pub. Interest 22 (1977). 4. Richard K. Berg & Roger C. Cramton, On Leading a Horse to Water: NEPA and the Federal Bureaucracy, 71 Mich. L. Rev. 511 (1973). 5. L. Caldwell, A Study of Ways to Improve the Scientific Content and Methodology of Environmental Impact Analysis (School of Public and Envtl. Affairs, Indiana Univ., 1982). 6. Arthur F. Ferguson, The Sin of Omission: Inaction as Action Under Section 102(2)(C) of the National Environmental Policy Act of 1969, 53 Ind. L.J. 497 (1978). 7. Melanie Fisher, The CEQ Regulations: New Stage in the Evolution of NEPA, 3 Harv. Envtl. L. Rev. 347 (1979). 8. Ian M. Kirschner, Comment, NEPA’s Forgotten Clause: Impact Statements for Legislative Proposals, 58 B.U. L. Rev. 560 (1978). 9. Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. Pa. L. Rev. 509 (1974). 10. Thomas O. McGarity, Courts, the Agencies and NEPA Threshold Issues, 55 Tex. L. Rev. 801 (1977). 11. Arthur W. Murphy, The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?, Report to the Administrative Conference of the U.S., 3 ACUS 363 (1975), reprinted in 72 Colum. L. Rev. 963 (1972). 12. Mark A. Pridgeon et al., State Environmental Policy Acts: A Survey of Recent Developments, 2 Harv. Envtl. L. Rev. 419 (1978). 13. Mark Reeve, Comment, Scientific Uncertainty and the National Environmental Policy Act—The Council on Environmental Quality’s Regulation 40 CFR section 1502.22, 60 Wash. L. Rev. 101 (1984). 14. Charles F. Weiss, Note, Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold?, 86 Mich. L. Rev. 777 (1988). 15. N.C. Yost, The Governance of Environmental Affairs—Toward Consensus (New York: Aspen Institute for Humanistic Studies, 1982). c. More Recent Analyses 1. Michael C. Blumm & Keith Mosman, The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit, 2 Wash. J. Envtl. L. & Pol’y 193 (2012). 2. Michael C. Blumm & Marla Nelson, Pluralism and the Environment Revisited: The Role of Comment Agencies in NEPA Litigation, 37 Vt. L. Rev. 5 (2013). 3. Sharon Buccino, NEPA under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation, 12 N.Y.U. Envtl. L.J. 50 (2003). 4. Wendy B. Davis, The Fox Is Guarding the Henhouse: Enhancing the Role of the EPA in FONSI Determinations Pursuant to NEPA, 39 Akron L. Rev. 35 (2006). 5. Holly Doremus, Learning From Disaster: Lessons for the Future From the Gulf of Mexico: Symposium Article: Through Another’s Eyes: Getting the Benefit of Outside Perspectives in Environmental Review, 38 B.C. Envtl. Aff. L. Rev. 247 (2011). 6. Victor B. Flatt, The “Worst Case” May Be the Best: Rethinking NEPA Law to Avoid Future Environmental Disasters, 6 Envt’l & Energy L & Pol’y J 25 (Fall 2011). 7. Bradley C. Karkkainen, Whither NEPA?, 12 N.Y.U. Envtl. L.J. 333 (2004). 8. Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance, 102 Colum. L. Rev. 903 (2002). 9. Courtney A. Schultz, History of the Cumulative Effects Analysis Requirement Under NEPA and Its Interpretation in U.S. Forest Service Case Law, 27 J. Envtl. L. & Litig. 125 (2012). 10. James T.B. Tripp & Nathan G. Alley, Streamlining NEPA’s Environmental Review Process: Suggestions for Agency Reform, 12 N.Y.U. Envtl. L.J. 74 (2003). 11. Helen Leanne Seassio, Legislative and Executive Efforts to Modernize NEPA and Create Efficiencies in Environmental Review, 45 Tex. Envtl. L.J. 317 (2015). 12. John Ruple, Mark Capone, NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West, 46 Envtl. L. 953 (2016). 13. Jamison E. Colburn, The Risk in Discretion: Substantive NEPA's Significance, 41 Colum. J. Envtl. L. 1 (2016). 14. Michael Burger; Jessica Wentz, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review, 41 Harv. Envtl. L. Rev. 109 (2017).