It is, as the lawyers say, black letter law that the National Environmental Policy Act, or NEPA, is a procedural statute, which provides no substantive protection to the environment. It merely requires the appropriate level of assessment of the potential environmental consequences of federal action. Whether the action should be taken is outside NEPA’s purview.
Rarely, however, has this critical limitation on NEPA’s scope been stated so plainly as in yesterday’s decision in Save Strawberry Canyon v. U.S. Department of Energy, in which Judge Alsop of the Northern District of California rejected a NEPA-based challenge to a DOE-funded laboratory at the University of California. As Judge Alsop wrote:
We must always remember that NEPA is a procedural – not a substantive – statute. Once the agency takes a hard look at the environmental consequences of the proposed action, the agency is free to destroy the environment. (My emphasis.) NEPA does not require, in making the substantive decision, that any extra weight be given to environmental preservation, sad as that sometimes is.
As an empirical matter, I’m skeptical that judges’ views on the merits of projects don’t infect their thinking regarding whether NEPA procedural requirements have been met, but the decision is nonetheless a salutary reminder of both NEPA’s purpose and its limits.