Abstract
For decades the National Environmental Policy Act (NEPA) of 1969 was a paradigm of statutory stability. In 2023 that changed overnight with a major rewrite of NEPA as part of the debt ceiling bill. The text of the statute was hurriedly negotiated between President Biden and House Speaker McCarthy, and then passed with virtually no debate.
This article is the first to analyze the amendments. Due to the frenzied enactment process, NEPA is now loaded with overlapping and partially conflicting language, provisions that seem nonsensical if taken literally, and perplexing gaps. The article teases apart these problems, concluding that the statute is often best understood as codifying established law or making incremental changes rather than marking a break with the past. The analysis raises serious questions about the utility of the kind of close textual reading often favored by today's Supreme Court, especially as applied to the products of such unorthodox lawmaking processes. Instead, the statute requires a holistic interpretation based on its structure and its relationship with prior legal landscape.
Recommended Citation
Daniel A. Farber,
Rewriting NEPA: Statutory Continuity and Disruption in a Polarized Era,
14
Mich. J. Env't. & Admin. L.
75
(2024).
Available at:
https://repository.law.umich.edu/mjeal/vol14/iss1/3
Included in
Energy and Utilities Law Commons, Environmental Law Commons, Land Use Law Commons, Legislation Commons, Natural Resources Law Commons