Judicial deference under the National Environmental Policy Act (NEPA) can be problematic. It is a well-established rule of administrative law that courts will grant a high degree of deference to agency decisions. They do this out of respect for agency expertise and policy judgment. This deference is applied to NEPA lawsuits without acknowledging the special pressures that agencies face while assessing the environmental impacts of their own projects. Though there is a strong argument that these pressures undermine the reasons for deferential review, neither the statute nor the courts have provided plaintiffs with adequate means to remedy this problem. Agency pressure and environmental harms are often amplified in the context of climate change and can lead to incongruous results that are scientifically questionable, counter to NEPA's expressive environmental policy, or both. In light of the current deficiencies in the interpretation and application of the law and the pressing issue of global warming, the time is ripe for reforms that will ensure that agency decisions relect NEPA's expressive purpose and are, at the very least, supported by honest science. This Note proposes an external office to address NEPA's shortcomings by providing a higher level of scientific review for agency analyses under NEPA. The proposed review grants the wide deference for policy judgments that the administrative state requires, while acknowledging the places where an agency may not be in the best position to adjudge the veracity of the environmental impacts of its own projects.
Aliza M. Cohen,
NEPA in the Hot Seat: A Proposal for an Office of Environmental Analysis,
U. Mich. J. L. Reform
Available at: http://repository.law.umich.edu/mjlr/vol44/iss1/5