LEGAL ASPECTS OF THE ENVIRONMENT 593
problems. There is also reason for serious concern over the
activities of those agencies which do not feel they have suf-
ficient authority to undertake needed research and action to
enhance, preserve, and maintain the quality of the environ-
ment in connection with development activities.
The National Environmental Policy Act reemphasizes
the importance of existing statutory programs relating
to the environment. Prior to the passage of the National
Environmental Policy Act of 1969, existing legislation
involving certain areas of Federal activity did not provide
“clear authority for the consideration of environmental
factors which conflict with other objectives,” and many
Federal agencies had not given substantial and consistent
consideration to environmental factors during decision
making in certain areas of their responsibility.
Section 102 (1) remedies these shortcomings in the stat-
utory foundations of existing agency programs by incorpo-
rating the policy and goals set forth in section 101 into the
actions and programs of all Federal agencies. Section 102
(2) establishes procedures which will help to insure that the
policies enunciated in sections 101 are implemented.
Prior to the passage of the National Environmental
Policy Act of 1969, planning and decision-making that
might have an effect on the quality of the environment was
too often the exclusive province of the engineer and cost
analyst. The National Environmental Policy Act requires
Federal agencies to consider all relevant points of view
and draw upon the broadest possible range of social and
natural scientific knowledge and design arts in planning
and decision making. In the past, Federal agencies have all
too frequently ignored environmental factors in planning
and decision making or omitted them from consideration
during the early stages of planning because of the diffi-
culty in evaluating such factors as compared with the ease
of evaluating economic and technological factors. Under
NEPA, Federal agencies and officials are now required
to develop the methodology and techniques necessary to
determine the total environmental impact and full course
of actions by the Federal government.
One of the most frequent sources of environment liti-
gation involves the construction and application of the
National Environmental Policy Act of 1969 and the suffi-
ciency of environmental impact statements prepared pursu-
ant to section 102 (2) (C). Although the initial determination
of environmental impact is made by the agency itself, should
the agency find that the proposed activity will have a sig-
nificant effect on the environment, the agency report of rec-
ommendation supporting the proposal must make findings
with respect to the environmental factors set forth in section
102 (2) (C) (i)–(v). If adverse environmental effects cannot
be avoided by reasonable alternative actions the agency
must demonstrate that such adverse environmental effects
are justified by other considerations of national policy,
which must be stated in detail. The use of local, short-term
resources must be found to be consistent with the mainte-
nance and enhancement of the long-term productivity of the
environment. Proposals involving significant commitments
of resources that will be irreversible and irretrievable underconditions of known technology and reasonable economics
must be found necessary.
The National Environmental Policy Act supplements
the statutory authority of most Federal agencies and requires
them to follow the policies, goals and procedures of the Act,
unless the existing law governing such agency’s operations
expressly prohibits full compliance, however section 103
provides that no Federal agency is to interpret its exist-
ing statutory authority in such a way as to avoid compliance
with the directives of NEPA. If the agency finds a clear con-
flict between its existing statutory mandate and the Act, the
agency is required to propose to the President of the United
States such measures as will be necessary to bring the
statutory authority and mandate of the agency into conformity
with the provisions of the National Environmental Policy Act.
The National Environmental Policy Act is a relevant stat-
ute within the meaning of the Administrative Procedure Act,
thus conferring standing upon representatives of the general
public seeking judicial review of actions and decisions by
federal agencies which may have failed to follow the poli-
cies, goals and procedures of the Act, where such action or
decision of the agency threatens to have adverse effects upon
the ecological system an individual may reside in or use for
recreation. Section 101 (C) of the National Environmental
Policy Act recognizes that “each person should enjoy a
healthful environment and that each person has a responsi-
bility to contribute to the preservation and the enhancement
of the environment,” indicating that Congress intends to rec-
ognize the interests of individual citizens in the protection of
the ecosystem they may reside in or use for recreation.
Such an individual citizen is within the class of persons
which the National Environmental Policy Act was meant to pro-
tect, and is thus a person adversely affected or aggrieved within
the meaning of the Administrative Procedure Act and as such a
person is entitled to judicial review of the agency action.
The national goal and policies for the protections, estab-
lishment and enhancement of this Nation’s environment
established by the National Environmental Policy Act are in
the words of its Senate sponsor, Senator Jackson.
More than the statement of what we believe as a people
and as a nation, it establishes priorities and gives expressions
to our National goals and aspirations. It provides a statutory
foundation to which administrators may refer... for guid-
ance in making decisions which find environmental values
in conflict with other values.
What is involved is a congressional declaration, that we
do not intend, as a government or as a people, to initiate
actions which endanger the continued existence or the health
of mankind: that we will not intentionally initiate actions
which will do irreparable damage to the air, land, and water
which support life on earth.
An environmental policy is a policy for people. Its
primary concern is with man and his future. The basic prin-
ciple of the policy is that we must strive in all that we do to
achieve a standard of excellence in man’s relationship to his
physical surroundings. If there are to be departures from this
standard of excellence, they should be exceptions to the rule
and policy.C012_001_r03.indd 593C012_001_r03.indd 593 11/18/2005 10:33:18 AM11/18/2005 10:33:18 AM