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Home > Journals > Michigan Law Review > MLR > Volume 81 > Issue 5 (1983)

 

Abstract

This Note considers the question of whether NEPA requires an EIS in cases of official refusal to exercise discretionary agency authority. Part I develops the competing theories for resolving this question. The current judicial attitude, which has excluded important cases with far-reaching environmental effects from the EIS requirement, plainly frustrates the statute's procedural purposes. Regulations promulgated by the Council on Environmental Quality define "major federal action" to include the failure to act under certain circumstances, and offer one alternative to the current approach. But the regulations condition the classification of inaction as action upon reviewability under the Administrative Procedures Act, significantly limiting the regulation's scope. This approach would expand NEPA's reach to an extremely important category of cases, while the limits on the review of agency inaction contained in the AP A suggest that following the regulations would impose no more than reasonable burdens on agency decisionmaking. The regulations, therefore, suggest the minimal degree to which agency inaction with significant effects on the environment should require an EIS. But the problematic nature of reviewability under the AP A, and the danger of neglecting environmental values in the type of case likely to escape the EIS requirement under the regulations, suggest the need for a more comprehensive regime for incorporating environmental concerns into agency decisions not to act. The superior approach would be to view the plaintiff's request for an exercise of authority as a "proposal for . . . major federal action." This interpretation harmonizes the language and purpose of the statute, subject to no objection other than the apprehension of paralyzing agencies with the burden of responding to obstructionist demands for impact statements. This apprehension, however, inheres in any interpretation that honors NEP A's purpose to account for environmental values in the formulation of public policy. Part II, therefore, turns to a consideration of standards for limiting the application of Section 102(2)(C) in cases where the government declines to take a proposed major action. These standards should dispel any fear that requiring an EIS when the government refuses to take "major federal action" will mire policy implementation in a legal morass.

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