Environmental lawyer reflects on 50th anniversary of NEPA

As we are all dealing with the impact of the ongoing COVID-19 pandemic, it is important to remember that this year marks the 50th anniversary of the start of the Environmental Decade, which began in 1970. That year, the first Earth Day occurred and both the United States Environmental Protection Agency and the New Jersey Department of Environmental Protection were created. The decade commenced with the enactment of the National Environmental Policy Act, or “NEPA.” This seminal legislation is the basis by which all federal agencies must consider the environmental impacts of planned federal actions by preparing an environmental assessment or, if there are potential significant impacts, an environmental impact statement. Agencies are required to mitigate (or have applicants for approvals mitigate) to offset environmental impacts from the federal actions.

By signing NEPA at the start of the decade, President Richard Nixon set the tone for a renewed focus on environmental issues. In the years that followed, other major federal environmental legislation was enacted. In 1970, the Clean Air Act was adopted, establishing national air quality standards and requiring states to adopt implementation plans to achieve compliance. This was further amended and expanded in 1977. In 1972, the Federal Water Pollution Control Act was substantially amended, rewritten and expanded upon. The law was further broadened by the Clean Water Act of 1977. These laws led to the regulation of discharges to surface water and the protection of wetlands, among other things. In 1976, the Resource Conservation and Recovery Act was adopted, creating comprehensive regulation of hazardous waste. In 1980, the Comprehensive Environmental Response Compensation and Liability Act was signed into law, establishing the federal Superfund cleanup program. Similar state laws were enacted in New Jersey and other states during this time period. Since then, these laws have been continually updated and refined as new environmental risks have been identified and addressed.

As a teenager in the 1970s, I enjoyed the outdoors and, as a result of the first Earth Day, became interested in environmental protection. After obtaining a science degree and attending law school, I have been fortunate to develop an environmental legal practice where I have witnessed the implementation of these laws and the positive impact they have had on the environment. While things are certainly much improved from where they were in 1970, much remains to be done and new challenges arise every day.

NEPA manifested a general understanding that the unintended consequences of human activity could negatively affect the environment and needed to be considered. The other statutes focused on specific means of addressing and reducing negative impacts on the environment, primarily by controlling large sources of pollution or requiring cleanup of past pollution.

Today, 50 years later, changes are being proposed to the NEPA process that some believe will undermine its fundamental principles. The changes include limiting the scope of review and putting time limits on the process, among others. The regulation of large sources of pollution has been effective to a degree, but both air quality and fishable/swimmable water goals have not been achieved and there are ongoing discussions about reducing the scope of some of the pertinent regulations. Cleanups have progressed, but many sites remain. New challenges have been recognized, such as the impacts of global warming and the determination that certain chemicals that have not been regulated to date pose potential health risks.

Anyone concerned with the environment and all environmental lawyers need to be involved in addressing the issues facing us in 2020. The spirit and principles that led to the enactment of NEPA need to be preserved and further advanced. Policymakers need to look at the most pressing environmental risks and prioritize addressing those first. The next generation of environmental laws need to move beyond point source pollution regulation to forcing changes in behavior at all levels that will protect the environment and finally achieve the goals of the legislation from the 1970s, while meeting the challenges of this century. This process has begun through the enactment of laws pushing clean energy as the preferred (or only) alternative. But more is needed. One of the lessons learned from the COVID crisis is that reduction in vehicle miles travelled does lead to immediate clean air benefits. Let’s use this lesson to make the real changes we need to achieve the goals established 50 years ago.

Let’s all start by changing our own behavior and making the 2020s the new 1970s when it comes to furtherance of environmental protection.

Dennis M. Toft is the chair of the Environmental Group at Chiesa Shahinian & Giantomasi P.C.