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Article Title

Reconsidering NEPA

Document Type

Article

Publication Date

Spring 2021

Publication Citation

96 Indiana Law Journal 865 (2021)

Abstract

The National Environmental Policy Act (NEPA) ushered in the modern era of environmental law. Thanks to its environmental impact statement (EIS) provision, it remains, by far, the most litigated environmental statute. Many administrations have sought to weaken the law. The Trump administration, for example, put into place regulations that strictly limit the EIS process, which the Biden administration seems poised to roll back. For the most part, however, NEPA has shown remarkable staying power and resilience since its passage just over fifty years ago. As a result, its legislative history remains relevant. But the accepted history of NEPA is deeply flawed.

By bringing the history to light, this Article makes three contributions. First, relying on both original primary sources and a thorough review of the literature, we provide a nuanced and engaging history of the EIS provision, correcting common misconceptions of the accepted story. Second, we show why understanding this more accurate history of the Act’s key provision can rebut major threats to NEPA and the regulations that govern it, such as those introduced during the Trump administration. Third, our granular history of NEPA provides an ideal experiment to test the accuracy of traditional canons of legislative history. We find that most canons fail to recognize the most critical aspects of NEPA’s history. Positive political theory–derived canons, on the other hand, most accurately capture the actual legislative history.

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