Environm ental Im pact Assessm ent for the Twenty-First Century

Environm ental Im pact Assessm ent for the Twenty-First Century
― What Have We Learned Since 1970? ―

Daniel A. Farber*
Contents
Ⅰ. Introduction
Ⅱ. An Overview of NEPA
Ⅲ. NEPA’s Gap in Follow-up Monitoring.
Ⅳ. Public Access
Ⅴ. NEPA and Climate Change
Ⅵ. NEPA as a Source of Legal Principles
Ⅶ. Conclusion

Ⅰ. Introduction
The National Environmental Policy Act (NEPA) was the first in a wave of
major U.S. environmental statutes that began in 1970 under President Nixon and
ended a decade later when President Reagan took office. NEPA has had a major
impact on how U.S. agencies operate, particularly those dealing with natural
resources. It has also spawned other environmental assessment laws in some
American states, in many different countries, and even under international law.1)It has now been nearly fifty years since NEPA became law. What can we
learn from these years of experience in the U.S.? In this article, I will make
four recommendations for improving the implementation of NEPA. These
recommendations may also be relevant to other legal systems that have adopted
similar laws:
Recommendation 1: Follow-up Project Evaluation. Mandate that agencies
monitor the actual impacts of projects and compare them with the predictions
in the environmental assessment. Similarly, the effectiveness of mitigation
efforts should be monitored.
Recommendation 2: Use of Information Technology. Make environmental
assessments permanently accessible on the Internet and use Geographic
Information Systems (GIS) to make them more understandable and usable.
Recommendation 3: Consideration of Climate Change. Ensure that direct
and indirect carbon emissions caused by a project are considered in the
assessment. Also ensure that the impacts of climate change on the project
itself are considered.
Recommendation 4: Statutory Interpretation. Adopt a “sustainability”
principle for interpreting statutes, so that a pro-sustainability interpretation
is given to ambiguous statutes whenever possible.
Following a background section on NEPA, I will explain the reasons for each
of these recommendations and how they relate to current practice under NEPA.
There are undoubtedly other areas for improvement, particularly to make the
process faster and to produce shorter, more understandable assessment. But I
will limit my consideration to these four. Some of them may also be relevant
to improvement in environmental assessment in other legal systems.