Origins and development - Introduction to Environmental Impact Assessment - page 30

Quality (CEQ), the main EIA procedures arising from NEPA, and likely future
developments. The reader is referred to Anderson et al. (1984), Bear (1990), Canter
(1996), Mandelker (2000), Orloff (1980) and the annual reports of the CEQ for further
information.
2.2.1 Legislative history
The National Environmental Policy Act is in many ways a fluke, strengthened by what
should have been amendments weakening it, and interpreted by the courts to have powers
that were not originally intended. The legislative history of NEPA is interesting not only
in itself but also because it explains many of the anomalies of its operation and touches
on some of the major issues involved in designing an EIA system. Several proposals to
establish a national environmental policy were discussed in the US Senate and House of
Representatives in the early 1960s. All these proposals included some form of unified
environmental policy and the establishment of a high-level committee to foster it. In
February 1969, Bill S1075 was introduced in the Senate; it proposed a programme of
federally funded ecological research and the establishment of a CEQ. A similar bill,
HR6750, introduced in the House of Representatives, proposed the formation of a CEQ
and a brief statement on national environmental policy. Subsequent discussions in both
chambers of Congress focused on several points:
• the need for a declaration of national environmental policy (now Title I of NEPA);
• a proposed statement that “each person has a fundamental and inalienable right to a
healthful environment” (which would put environmental health on a par with, say, free
speech). This was later weakened to the statement in §101(c) that “each person should
enjoy a healthful environment”;
• action-forcing provisions similar to those then being proposed for the Water Quality
Improvement Act, which would require federal officials to prepare a detailed
statement concerning the probable environmental impacts of any major action; this
was to evolve into NEPA's §102(2)(C) which requires EIA. The initial wording of the
Bill had required a “finding”, which would have been subject to review by those
responsible for environmental protection, rather than a “detailed statement” subject to
inter-agency review. The Senate had intended to weaken the Bill by requiring only a
detailed statement. Instead, the “detailed assessment” became the subject of external
review and challenge; the public availability of the detailed statements became a major
force shaping the law's implementation in its early years. NEPA became operational
on 1 January 1970. Table 2.1 summarizes its main points.
2.2.2 An interpretation of NEPA
The National Environmental Policy Act is a generally worded law that required
substantial early interpretation. The CEQ, which was set up by NEPA, prepared
guidelines to assist in the Act's interpretation. However, much of the strength of NEPA
came from early court rulings. NEPA was immediately seen by environmental activists as
a significant vehicle for preventing environmental harm, and the early 1970s saw a series
of influential lawsuits and court decisions based on it. These lawsuits were of three broad
types, as described by Orloff (1980):