Abstract
The National Environmental Policy Act was born with a fanfare of rhetoric. Suddenly sensitive to the urgency of the environmental crisis, Congress passed the bill quickly, and President Nixon seized the opportunity to sign it on the first day of the new decade. During its early years, NEPA was hailed by environmental activists as nothing short of a panacea; the environmentalists were nearly unanimous in singing its praises. At the same time, industrialists warned that NEPA's provisions could stop growth and progress in their tracks. But in recent months the battle lines have begun to shift. When the subject of NEPA surfaces in environmental discussions, it is becoming difficult to distinguish proponents from opponents. In the relatively brief time that this body of environmental law has been in force, the federal government and resourceful environmental advocates in the private sector have used its provisions to make significant progress in the fight against environmental abuse. But over the same period of time it has become clear that the existing body of law is not a sufficient arsenal; there are missing links in the law that must be repaired if the progress of the past few years is to continue. Several proposals have been offered to repair these missing links, and we shall critically review two of the principal ones before making some proposals of our own. One attempt to cope with the absence of substantive rights and referees is embodied in legislation now pending in the Congress which would create broad substantive environmental rights and would provide judicial review of alleged government or private interference with those rights. In our view, however, this approach is mistaken in its conception of the competence and proper role of the courts, and would lead to inconsistent and weakened environmental regulation. Some environmentalists and most industrialists have suggested that the relationship between NEPA and the "standards-setting" statutes should be a vertical one, with NEPA on top and the government's environmental regulatory activities subject to its provisions. Our conclusion is that this approach is unnecessary and would lead to weakened regulation. Our own proposals for repairing the missing links which we have identified are based on our belief that although more explicit substantive rights to a healthy and pleasing environment must be created, the Congress ought not leave the task of creation to the courts. This means that the legislative branch must write more laws of the "standards-setting" variety, and at the same time strengthen the opportunities for judicial review of government activities which have an environmental impact.
First Page
163
Recommended Citation
Edward S. Muskie & Eliot R. Cutler,
A National Environmental Policy: Now You See It, Now You Don't,
25
Me. L. Rev.
163
(1973).
Available at:
https://digitalcommons.mainelaw.maine.edu/mlr/vol25/iss2/2