Jaclyn Lopez (Stetson University College of Law) has posted NEPA’s Midlife Crisis (Nevada Law Journal, forthcoming) on SSRN. Here is the abstract:
The National Environmental Policy Act (NEPA) is in the throes of a midlife crisis. In just the last three years, Congress amended NEPA for the first time since 1970, the Supreme Court issued its first major NEPA decision in two decades, and the Council on Environmental Quality (CEQ) rescinded its NEPA implementing regulations. Taken together, these developments do not explicitly repeal NEPA, but they reallocate its action-forcing power away from a centralized federal procedural baseline and toward a proximate-cause limited exercise in expanded agency discretion.
This Article is among the first to situate this trifecta within longer, intersecting arcs. First, it traces NEPA’s doctrinal growing pains since Public Citizen, showing how lower courts’ two-decade struggle parsing indirect effects and causal responsibility set the jurisprudential groundwork for Congress’s 2023 amendments and the Supreme Court’s 2025 decision in Seven County Infrastructure Coalition v. Eagle County. Second, it lays bare the ongoing struggle between an apparent judicial skepticism of administrative authority and judicial deference to so-called expert agencies.
The Article proceeds in three Parts. Part I begins with NEPA’s Carson-era origins and federal leadership ambitions that reflected a national reckoning with the impacts of rapid industrialization and its unchecked externalities but also forecasted the statute’s eventual undoing. Part II chronicles NEPA’s implementation through the CEQ, hard-look review, circuit splits, and agency implementation. Part III evaluates NEPA’s amendments, Seven County’s deference and causation reminders, and the regulatory blowback culminating in CEQ’s regulation rescission. The central argument is that NEPA no longer serves as a reliable, national environmental conscience; its revival depends on a renewed political commitment to accountability akin to the awareness that enabled NEPA’s passage more than a half-century ago.
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