The National Environmental Policy Act (NEPA) - Term Paper Example

The National Environmental Policy Act (NEPA) Contents Introduction 4 History of NEPA 5 Legislation of NEPAinto Law 6 Principles Guiding the Enactment of NEPA and their Impact on Business and Society 8 8 Principles of the American Conservation Ethic 8 Principle 1: People are the most important, unique and precious resource. 8 Principle 3: Private Property Protections and Free Markets Provide the Most Promising New Opportunities for Environmental Improvements. 9 Principle 4: Efforts to Reduce, Control, and Remediate Pollution Should Achieve Real Environmental Benefits. 10 Principle 5: As We Accumulate Scientific, Technological, and Artistic Knowledge, We Learn How to Get More from Less. 11 Principle 6: Management of Natural Resources Should be conducted on a Site- and Situation-Specific Basis. 11 Principle 7: Science as a Tool to Guide Public Policy. 12 Principle 8: The Most Successful Environmental Policies Emanate from Liberty. 12 Strengths and Weaknesses of NEPA 13 Strengths 13 Weaknesses 13 Environmental Justice 13 Mitigation 14 Recommendations 14 References 15 The National Environmental Policy Act (NEPA) Introduction The National Environmental Policy Act (NEPA), came into law in 1969 and is the basic charter for the safeguarding of the environment. It directs that federal agencies implement fully all procedures that accord environmental factors the deserved level of consideration. This is done mainly through circulation of information that regards environmental impact statements (EIS). The purpose of this act is: To declare a national policy which will embolden productive and enjoyable concord between man and his environs; to endorse efforts which will prevent or eradicate damage to the environment and biosphere and fuel the health and prosperity of man; to enrich the understanding of the ecological systems and natural resources essential to the Nation; and to establish a Council on Environmental Quality, Sec. 2 [42 USC § 4321]. The Congress noted that the activities of man had profound effects on the environment. These activities include: industrialization, high-density urbanization, resource exploitation and technological novelties. To top it off, there was the issue of population growth. The Congress set to the purpose of restoring and maintaining the environment because it in turn reflected on the prosperity of the human race. The intention was to achieve these goals with the partnership of the state, the private and public sectors and the support of local governments. The required support was to be in the form of financial and technical assistance. The Congress had the intention of preserving a future in which the environment and the human race were in harmony for their future generations, (Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970). Being motivated by the notion of equal rights of each person to enjoy a healthy environment, the Congress set the Act into motion and outlined the responsibilities of the Federal Government. The government was required to use all resources at its disposal to ensure that Federal plans and functions related to environmental conservation processes are improved for the sake of the nation. History of NEPA It was in the 1950s and 1960s that the outcry of the public on matters concerning the state of the environment was heard and acted upon by the Congress. A series of congressional debates ensued soon after and a national environmental policy was the outcome. The policy targeted federal agencies which at the time were the main culprits in environmental pollution. It stipulated various values and goals to be adhered to. However, advocates of a national policy provided a different argument; they recommended the formation of an Executive board, whose mandate would be to collect material on the state of the environment, forward it to the president and advise him on the necessary steps to be taken. The enactment of NEPA was preceded by a 10 year debate on what the act would contain. Back in the 86th Congress, Senator James Murray introduced the Resources and Conservation Act (1959); this laid the foundation for NEPA. The bill provided for the formulation of an advice council on the subject of environment and acknowledged a national environmental policy, Senate Report 91-296 (July 9, 1969) pp.11-12. The need for a national environmental policy was widely felt and this is reflected in the joint House-Senate conference in 1968 chaired by the chairs of Interior and Insular Affairs (Senate) and House Committee on Science and Astronautics. In the sitting, the issue of administrative agencies neglecting environmental factors in their operations was discussed. This was a sitting that formulated the various concepts seen in the bills that became NEPA. In the conference, Senator Jackson brought forward the need for new environmental management strategies and he requested the house to provide radical measures that would be enacted in the implementation of a national policy on the environment, Congressional White Paper (October 1968), Committee Print, p. 9. Legislation of NEPA into Law The Senator went forth and presented the bill that laid the foundation for NEPA in collaboration with Representative John Dingell. They wanted a study conducted on the environment so as to guarantee that future generations are safeguarded from living in hazardous surroundings. This is the bill that gave federal agencies the green light to conduct studies on environmental issues. Moreover, the bill established a committee on environmental quality to explore and study the material gathered and advise the President on the devising of National Policies. Senator Jackson’s radical proposal was again discussed in 1969 where Dr. Lynton Caldwell testified and championed for the creation of an action-forcing procedure to which the departments must abide by. His counterpart seconded him by proposing the expansion of the policy procedure to house all agencies that are linked to the environment to be accountable for their actions, 1st Session, on S. 1075, S. 237, and S. 1752, April 16, 1969, p. 116. After the hearing, the Senator brought before the house revisions to the senate bill. Part of the revision involved the inclusion of a national environmental policy and that all agencies of the Federal Government contain in every report on proposals for legislation and other chief Federal undertakings majorly affecting the value of the human environment. Later on in July of the same year, the Senate successfully passed its version of NEPA (S. 1075) which was not debated upon and received no amendments. In September 1969, the House passed its version (H.R.12549) by 372 to 15. In December, the Conference Committee had its version which contained several changes and compromises. The changes involved the clause on government agencies being subject to a ‘finding’ by the certified official to a ‘detailed statement’. This detailed statement came to be known as an environmental impact statement (EIS). The conference added a provision that required certain federal agencies with exception of the one issuing the EIS to analyze the detailed statement. This made the EIS in present day to be the fundamental condition in compliance with NEPA, S. 1075 Amendments, (May29, 1969). Other provisions that the legislative history is responsible for include: statements concerning the need for federal agencies to deliberate consequences of their actions. There is common ground between the proposed legislation and the current policies and institutions and it is the legislative mandate and accountability with regard to actions concerning the environment that they are bound to. The conference report was debated upon by the Senate and the House and they came to an agreement. On January 1, 1970, President Nixon signed NEPA into law. There was a challenge with the implementation of the law and it brought about an amendment on the Clean Air Act (42 U.S.C. 7401 et seq.) a year later. Further amendments have been carried out; a significant one is the inclusion of a new section 309 to the Clean Air Act which the head of the Environmental Protection Agency (EPA) was required to inspect and give his views on all EISs; for accountability purposes. Principles Guiding the Enactment of NEPA and their Impact on Business and Society 8 Principles of the American Conservation Ethic Principle 1: People are the most important, unique and precious resource. This means that all policies relating to the environment ought to be made with human beings receiving the utmost consideration. The inherent worth of each person is greater than that of any resource on the planet. The measure of the quality of the environment is with regard to the health and safety of the human race. Basically, a policy is only as good as it is for the people it is meant to serve. The suitability of the policy is therefore evaluated by the individual it influences. This puts the fate of the environment under the influence of the human intellect and the material gathered. The principle brings forward the claim that environmental policies should encourage people to be good stewards. Within the context of equity and accountability, people create incremental contributions in the eminence or quantity of a resource. Such an improvement leads to progress and provides direct and subsidiary environmental benefits to humanity. Principle 2: Renewable Natural Resources Are Resilient and Dynamic and Respond Positively to Wise Management. Most natural resources are renewable. This phenomenon means that the conservation of these resources is of uttermost necessity. These are resources which are regenerated through naturally occurring processes that tend to renew them. All living things and organic courses have byproducts which nature has a way of cleansing, recycling and disposing off. These are the factors that make it possible for human beings to continually have these resources at their disposal. The human race therefore by default has a mandate to protect these resources for the sake of future generations. It is this principle that brought about the Clean Water Act- 1972, which was intended to eradicate the ejection of toxins into American waters. The act stipulated that EPA was to set effluent standards which anyone requiring to do so was expected to meet and get a permit from EPA. Principle 3: Private Property Protections and Free Markets Provide the Most Promising New Opportunities for Environmental Improvements. The sense of ownership plays an unmeasurable value in the sense of responsibility that comes towards private property. This sense of stewardship be it for recreational or financial gain brings about the issue of trespassing when a third party pollutes the property. The subject of accountability is brought about by this; offenders are obligated to take responsibility for their actions. Property rights fall on the plate of the government and ought to be upheld and where they are vague, extensions should be made. Good stewardship can therefore be defined as the preservation of nature’s abundance on the basis of our needs. If such extensions are abstract, the forces of the market should be brought to endure to the ultimate extent. Free market economies and a healthy environment are linked directly. Economic freedom of market schemes contribute to economic vitality. Such vitality reflects well on life expectancy which is a pillar of environmental policies. Economic prosperity is therefore good for the environs, Deaton A. Paper No. 12735, (December 2006). The good thing with economic policies is that they reward efficiency which is a positive reflection on the environment. Imprudent actions that tend to pollute the environment are not rewarded. This is provided for in the Clean Water Act-1972 under the section on waste dischargers obligated to adopt the top available waste treatment technology. Conservation policies should therefore be free of regulation and government ownership because it is the markets that are a reflection of what the public want and value. Principle 4: Efforts to Reduce, Control, and Remediate Pollution Should Achieve Real Environmental Benefits. Pollutants vary in nature of the way they implicate on the human race. They bring about life threatening effects on the health of a being and they could take up the form of physically harmless conditions. Pollutants are both organic and synthetic depending on their source. However, this factor does not determine the extent to which their impact is felt. The most dangerous kind are microbiological pollutants, bacteria and viruses. Regardless of the fact that they are natural, their impact is far from minor. Technological byproducts on the other hand are merely a part of the output that comes with scientific progress. Conclusively, the wellbeing of the existing generation is considered more important than that of a theoretical one. Environmental measures should be assessed on the grounds of economic well-being and liberty. The advantage that science brings irrespective of its impact on the environment is that it provides guidelines on weighing the pros and cons on measures intended to control pollution and its effects. Science in its many aspects has a greater contribution to environmental conservation in comparison to the detrimental effects that couple it. Taking the example of the Federal Environmental Pesticide Control Act-1972, which necessitates that all pesticides be listed with EPA before they can be retailed or used. Principle 5: As We Accumulate Scientific, Technological, and Artistic Knowledge, We Learn How to Get More from Less. Warren Brooks noted that society tends to be more efficient as it gathers more scientific information. Technology promotes efficiency in that we learn to get more from less therefore there is less wastage and more productivity. Practical illustrations of these are: more miles per gallon in fuel consumption by automobiles and the use of lead free and Sulphur free fuel; which is in agreement with the Clean Air Act (CAA) – 1970 and the Toxic Substances Control Act-1976, on emission of toxic substances, more board-feet per acre of timber, a greater agricultural produce per cultivated acre and more GDP per unit of energy. It is these technological advancements that have made it possible for an American farmer to clothe a population that has more than doubled since 1949- all while boosting exports by more than twentyfold. With all these happenings, the acreage for production has reduced from 387 million acres to 330 million, Crop Land Use (2006). The agricultural processes of America are evidence of the benefits that are ripped from advancements in efficiency in production. Americans thus, have a reason to relentlessly pursue scientific (technological) know how. Principle 6: Management of Natural Resources Should be conducted on a Site- and Situation-Specific Basis. Environmental conditions are hardly ever consistent as they are subject to geographical location and the aspect of time. A site and situation specific approach calls for the communities in the proximity of natural resources or a pollution problem to take charge of them. A practice such as this one allows for ordering and separation of problems into adaptable components. This phenomenon promotes conservation efforts which are specific to the nature of the situation and is in agreement with native populations. It could be seen as a win-win situation for the policy and the people it affects. Taking into account the glitches that come with central planning; like the issue of politicization of issues, the approach swerves clear of the institutionalized approach. In the case where laws and regulations have been formulated to guide this process, they should encompass clear legal lines that are far-flung from bureaucratic requests. Principle 7: Science as a Tool to Guide Public Policy. The concepts of science ought to be applied in the formulation of environmental policies so as to develop smart policies. Its main use is in risk assessment and weighing the benefits against the costs. Public policies on environmental matters should reflect scientific knowledge. In the conceptualization of NEPA, Senator Jackson proposed the use of the force of the law to compel compliance with environmental policies. In such situations, the use of force should be backed by scientific facts. Taking the example of the Endangered Species Act-1973 which prohibits anyone from being in the possession of any listed endangered species. Enactment of environmental public policies should be under the notion of doing no harm first. Ben Lieberman, “A Free Economy Is a Clean Economy”. Principle 8: The Most Successful Environmental Policies Emanate from Liberty. The principle organizing principle of the American society is liberty. It goes without saying that environmental policies should abide by this. From a statistical point of view, there is a positive correlation between economic liberty and environmental performance. When the basic liberties are limited, the opportunities to improve the environment are curbed. Liberty is the most powerful driving force towards environmental enhancement because it fosters a feeling of personal responsibility. Strengths and Weaknesses of NEPA Strengths NEPA is founded on the grounds of regard for human beings as the utmost regarded beings. This has worked to serve the protection of human rights. The NEPA policies were formulated in such a way that they do not infringe on civil rights. As a procedural decree, NEPA does not necessitate agencies to uplift environmental disquiets above others. Instead, NEPA entails only that the agency weigh the environmental magnitudes of an action and its options before ensuing. If the adverse ecological effects of the anticipated action are sufficiently acknowledged and gauged, the agency is not reserved by NEPA from deciding that other benefits overshadow the environmental overheads and advancing with the deed. Conservational groups view NEPA as an indispensable tool to help agencies plan and manage federal engagements in a liable way by necessitating legislators and project guarantors to contemplate the ecological repercussions of their activities before verdicts are reached. Environmental groups also view the NEPA practice as an imperative mechanism in providing the civic with an opening to be part of agency planning efforts. Weaknesses Environmental Justice Environmental justice is in the review process of NEPA but it remains coupled with irregularities in the terms of equality in its application. Title VI of the Civil Rights Act of 1964 provides for unbiased acts. Section 601 of the act prohibits intentional bias towards race, color or national origin in any undertaking financed by the federal fund. EPA is subject to this act however, it has adopted regulations under the same section and title that restrict prejudiced effects on minorities notwithstanding the intent, 42 U.S.C. §§ 2000d, 2000d-1. Therefore the query as to whether a mechanism is in place for imposing Executive Order 12898, is an issue of debate. Mitigation Mitigation is a legal action intended to reduce the harmful effects of something. In the case of environmental pollution, an EIS must contain a ‘reasonably complete discussion’ to carry out mitigation. This act of the EIS is subject to the rule of reason and therefore some adverse impacts might be overlooked on the basis of not meeting the criteria, (9th Cir. 1985). Most agencies use NEPA as an authority decree — that is, an outline to harmonize or validate obedience with any studies, criticisms, or consultations vital to any other ecological laws. The use of NEPA in this aptitude can lead to misperception. The necessity to conform to another eco-friendly law, such as the Clean Water Act or Endangered Species Act, may be recognized within the agenda of the NEPA procedure, but NEPA itself is not the cradle of the obligation. Theoretically, if the condition to conform to NEPA were removed, compliance with each appropriate law would still be compulsory. Recommendations The act shaped the Council on Environmental Quality (CEQ), in the office of the president and its role was to superintend of NEPA’s enactment. Following the 1978 authorization of CEQ to issue protocols valid to all state agencies concerning the preparation of EISs, the body should be authorized to enforce those protocols, otherwise it has no mandate issuing them. This will work to dismiss the avenue taken up by personalities and groups that differ with how an agency meets NEPA’s directive or EIS conditions for a given venture, as a defense. Legislation concerning the use of NEPA as an umbrella body ought to be passed so as to make compliance with its protocols a compliance with the law. References The National Environmental Policy Act of 1969. Pub. L. 91-190, 42 U.S.C. 4321-4347, (January 1, 1970). Senate Report 91-296, 91stCongress, 1stsession, (July 9, 1969) pp. 11-12, and Lynton Caldwell. ‘Congressional White Paper on a National Policy for the Environment’ (October 1968), Committee Print, p. 9. Hearing before the Committee on Interior and Insular Affairs, United States Senate, 91st Congress, 1st Session, on S. 1075, S. 237, and S. 1752, April 16, 1969, p. 116. S. 1075 Amendments, Referred to Senate Committee on Interior and Insular Affairs, (May29, 1969). Deaton A. “Global Patterns of Income and Health: Facts, Interpretations, and Policies,” National Bureau of Economic Research Working, Paper No. 12735, December 2006, http://www.nber.org/papers/w12735. ‘Comparing 1949 and 2006, the Most Recent Year’, as reported in U.S. Department of Agriculture, Economic Research Service, Crop Land Use (2006), http://www.ers.usda.gov/data/majorlanduses/spreadsheets/croplandusedforcrops.xls Lieberman B. “A Free Economy Is a Clean Economy: How Free Markets Improve the Environment,” chap. 4 in Terry Miller and Kim R. Holmes, 2011 Index of Economic Freedom (Washington, D.C.: The Heritage Foundation and Dow Jones and Company, Inc., 2011), http://www.heritage.org/index/download 42 U.S.C. § 4332(2) (C) (1994); State of Utah v. Babbitt, 137 F.3d 1193, 1214 (10th Cir. 1998) (BLM inventory of public lands does not constitute a "major federal action significantly affecting the quality of the human environment"). Northwest Indian Cemetery Protective Association v. Peterson (Northwest Indian Cemetery), 764 F.2d 581, 588 (9th Cir. 1985), 485 U.S. 439 (1988). National Environmental Policy Act of 1969, (Public Law 91–190) [As Amended Through Dec. 31, 2000]. Read More