NEPA and the Federal Common Law of Nuisance- Two Relics of a Bygone Era That Have Outlived Their Usefulness (Part I)
When President Nixon signed into law the National Environmental Policy Act of 1969, federal regulation of environmental issues largely existed in name only. In the absence of comprehensive federal legislation, federal courts began expanding the federal common law of public nuisance. Draft guidance issued by the Obama Administration’s Council on Environmental Quality requiring federal agencies to consider climate change in the course of discharging their statutory duties and the recent proliferation of common law nuisance actions seeking to abate or recover damages for emission of greenhouse gases suggests that two relics of a bygone era may be revived and applied to ill-fitting facts and circumstances.
In a series of three posts, ClimateIntel will first briefly summarize the changes in the federal environmental regulatory landscape since the Nixon Administration. In the second post, ClimateIntel will describe how the CEQ’s draft guidance results in unnecessary and redundant obstacles to project development. In the third post, ClimateIntel will discuss the jurisprudential issues raised by the recent expansion of the federal common law of public nuisance.
Over the two to three decades after NEPA, Congress enacted numerous statutes and statutory programs that provided comprehensive regulatory systems for controlling pollution and, in some cases, compensating those harmed by the pollution. These statutes, included:
- The Comprehensive Environmental Response Compensation and Liability Act of 1980
- The Endangered Species Act
- The Surface Mining Control and Reclamation Act
- The Oil Pollution Act
- The Federal Land Policy and Management Act
- The Marine Mammal Protection Act
- The Coastal Zone Management Act
Many other laws, like the Clean Air Act, the Resource Conservation and Recovery Act, and the Clean Water Act, were on the books, but were mere shells of their current form. For example, when Congress passed NEPA, the CAA did not require the development of National Ambient Air Quality Standards, the establishment of New Source Performance Standards, or preconstruction permitting under the Prevention of Significant Deterioration program. RCRA did not require the setting of land disposal restrictions, provide for closure of solid waste management standards, or regulate the recycling of hazardous waste. The CWA did not yet have a permitting program establishing effluent limits.
Given that context, NEPA’s requirement that executive agencies consider potential impacts on human health and the environment of major federal actions represented the first broad incorporation of environmental policy into federal decisionmaking. Before federal environmental legislation authorized government agencies to require installation of control equipment, restrict discharges of pollutants and otherwise limit pollution, common law nuisance claims provided the potential for relief.
Forty years later, the content and scope of federal environmental regulation has changed dramatically and NEPA’s requirements are, in many cases, redundant and unnecessary. Similarly, actions in federal court asserting federal common law nuisance claims to recover for injuries allegedly caused by greenhouse gas emissions place the courts in the position of establishing national policy over greenhouse gas emissions.
In the next post, ClimateIntel examines the redundancy and misallocation of resources that would result from CEQ’s NEPA guidance.