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Addressing the Quiet Crisis:
Origins of the National Environmental Policy Act of 1969
National Environmental Policy Act of 1969
Senator Henry "Scoop" Jackson (D-Wa.), Chairman of the Senate Committee on Interior and Insular Affairs, was looking for a way to ensure all Federal actions reflected the new environmental awareness. Late in the Johnson Administration, Senator Jackson wanted to increase the expertise of his staff in this area, but did not have the funds to do so. He asked Train if the Conservation Foundation would pay for the consultant services of Professor Lynton K. Caldwell of Indiana University to work with the committee. Train agreed.
Jackson introduced the National Environmental Policy Act (NEPA) on February 18, 1969. He said:
The purpose of this legislation is to lay the framework for a continuing program of research and study which will insure that present and future generations of Americans will be able to live in and enjoy an environment free of hazards to mental and physical well-being.
He cited the Santa Barbara oil spill as an example of an ecological disaster that prompted an outcry but not a comprehensive program:
We are still only reacting to crisis situations in the environmental field. What we should be doing is setting up institutions and procedures designed to anticipate environmental problems before they reach the crisis stage.
At this point, NEPA directed the Secretary of the Interior to conduct studies and research relating to ecological systems and environmental quality and to identify risks and ways of reducing them. It also created a Council on Environmental Quality (CEQ) in the Executive Office of the President:
The primary function of the Council shall be to study and analyze environmental trends and the factors that effect [sic] these trends, relating each area of study and analysis to the conservation, social, economic, and health goals of this Nation.
The President would appoint the three members of CEQ, to serve at his pleasure, subject to consent by the Senate:
Each member shall, as a result of training, experience, or attainments, be professionally qualified to analyze and interpret environmental trends of all kinds and descriptions and shall be conscious of and responsive to the scientific, economic, social, esthetic, and cultural needs and interests of the Nation.
The bill did not include a requirement for review of individual projects.
Secretary Hickel, with Train beside him, testified during the committee's 1 day of hearings on April 16, 1969, that the Administration opposed the bill. The Secretary explained that CEQ was unnecessary because the White House had established an Environmental Quality Council (EQC) on May 29, 1969, to perform a similar function. Train, whose support for the bill was well known to Senator Jackson, believe the EQC had proven ineffective, but could not say so during the hearing. In his memoir, Train recalled:
Subsequently, I (along with others, I am sure) was able to persuade the administration to change its position on NEPA. Aside from the self-evident inadequacy of the EQC, one of my main arguments with the White House in support of NEPA was the fact that the legislation was going to pass overwhelmingly. I was authorized to testify in favor of the legislation in the House, where Representative John Dingell of Michigan had introduced a companion bill. [Train, p. 69]
Representing the DOT before Senator Jackson's committee was Assistant Secretary for Urban Systems and Environment John Braman, a former Mayor of Seattle. As Chairman Jackson noted in introducing Braman, he had taken office only the day before. Braman acknowledged that he and his office were new, but the office was "a new attempt to better organize the capacities of the department to cope with this very, very important and very serious problem which we all face." Secretary Volpe, Braman explained, had implemented the change:
The charter of this particular office is a very broad one. We are only now beginning to get to the point where we can see the manner in which we will attack the specific problems, but certainly it is very clear that one of the things the Secretary expects from this new office is a better decimation [sic] of information and better coordination between all of the activities of the Department which go to the whole field of highways, mass transportation, aviation, railroads, and many others to the end that the utilization of all funds, local, State, and national, can produce for the people the very best system of movement possible, at the same time recognizing that in many instances the determinations will have to be changed from being based on economics alone to a consideration of the economies as tempered by the impact on the environment.
The DOT, he said, shared the Administration's opposition to NEPA. "We believe the argument for maintaining organizational flexibility is a compelling one and would recommend an administrative, rather than a statutory approach at this time."
The "Action-Forcing Mechanism"
Professor Caldwell also testified. He supported creation of the CEQ to advise the President, but was concerned that it placed too much responsibility in the President, who already faced "responsibilities and burdens that no human individual can be expected to manage." He believed that the country needed "an independent forum for a review of the Nation's condition." What was needed was:
…a body that is capable of making assessments not only of our current conditions, but of presenting alternatives for coping not only with the problems that we know about that are before us now, but problems we have yet to face…We cannot afford to continue to learn from experience.
He called for creation of a "body" to serve as an "action-forcing mechanism" that would evaluate Federal actions before they occurred:
When the committee issued its report on July 9, the revised bill included a variation of Professor Caldwell's action-forcing mechanism. For every Federal action significantly affecting the quality of the human environment, the sponsoring Federal Agency would be directed to study the environmental impacts of the proposed action, consider measures for mitigating any adverse environmental effects, and determine if any irreversible and irretrievable impacts were warranted by the need for the action. The report explained:
One of the major factors contributing to environmental abuse and deterioration is that actions—often actions having irreversible consequences—are undertaken without adequate consideration of, or knowledge about, their impact on the environment. Section 201 seeks to overcome this limitation by authorizing all agencies of the Federal Government, in conjunction with their existing programs and authorities, to conduct research, studies, and surveys related to ecological systems and the quality of the environment. This section also authorizes the agencies to make this information available to the public, to assist State and local government, and to utilize ecological information in the planning and development of resource-oriented projects. [Committee on Interior and Insular Affairs, National Environmental Policy Act of 1969, Report No. 91-296, July 9, 1969, p. 9]
Senator Jackson introduced the bill on the Senate floor on July 10. He said that it "directs that all Federal agencies conduct their activities in accordance with these goals, and provides ‘action-forcing' procedures to insure that these goals and principles are observed." He did not elaborate on the mechanism. The floor debate prior to Senate approval did not include discussion of the provision. The focus was on the proposed CEQ, according to Flippen:
With the proposal for CEQ dominating the debate over NEPA, few legislators realized the importance of the bill's impact statement requirement. Even Train, who had argued since his days at the Conservation Foundation for some established program to weigh environmental considerations, did not grasp its ramifications. [Conservative Conservationist, p. 85]
The Senate approved the bill the same day.
In July, the House Committee on Merchant Marine and Fisheries introduced a companion bill to create a CEQ as an amendment to the Fish and Wildlife Coordination Act. It did not contain a provision comparable to the action-forcing mechanism in the Senate bill. The House adopted the bill on September 23, 1969.
Senator Jackson returned to the Senate floor on October 8 to lay the House bill before the Senate, ask his colleagues to reject it, and agree to a Conference Committee to work out differences between the two bills. He submitted a formal statement, a report on differences between the Senate and House bills, the history of the legislation, and other material to be inserted into the Congressional Record. In discussing the origins of the bills, he cited the "inadequacy of present knowledge, policies, and institutions" related to a subject that "touches every aspect of man's existence." He said:
We see increasing evidence of this inadequacy all around us: haphazard urban and suburban growth; crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man's social and psychological well-being; the loss of valuable open spaces; inconsistent and, often, incoherent rural and urban land-use policies; critical air and water pollution problems; diminishing recreational opportunity; continuing soil erosion; the degradation of unique ecosystems; the degradation of unique ecosystems; needless deforestation; the decline and extinction of fish and wildlife species; faltering and poorly designed transportation systems; poor architectural design and ugliness in public and private structures; rising levels of noise; the continued proliferation of pesticides and chemicals without adequate consideration of the consequences; radiation hazards; thermal pollution; an increasingly ugly landscape cluttered with billboards, powerlines, and junkyards; growing scarcity of essential resources; and many, many other environmental quality problems.
(This same list of environmental problems had appeared in the committee's July 9 report and would be repeated during deliberations on December 20.)
Several of these items related to transportation issues, but the report did not refer directly to highways or the Interstate System except in one instance. The Senator's report on legislative history concluded with a statement that the committee had reviewed and drawn on "many measures related to various aspects of environmental management." A footnote added:
In the closing days of the 90th Cong. [which ended October 14, 1968], the Legislative Reference Service tabulated over 100 bills concerned with environmental issues, covering a broad area of interest—cleaning up the Nation's rivers and better approaches to smog control, improving the use of open space and prevention of disorderly encroachment by superhighways, factories and other developments, improved protection of areas of high fertility, wiser application of pesticides, whose residues affect both man and wildlife, and the control of urban sprawl, unsightly junkyards, billboards, and power facilities that lower the amenities of landscape. [115 CongRec.91st Cong., 1st Sess., 29067-29068 (1969)]
This footnote is the only direct reference to highway construction in the material Senator Jackson presented on this occasion.
Congress Approves NEPA
After working out differences in the approved bills, the Conference Committee of the two Houses released its report on December 17, 1969. Section 101 was a "Declaration of National Environmental Policy":
The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high–density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practical means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
The Federal Government was "to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may" fulfill this policy.
As Flippen explained, the final version of NEPA included "almost all the stringent provisions" of the Senate version, including the action–forcing mechanism now in Section 102:
Under pressure from the House conferees, the report added the qualifying phrase "to the fullest extent possible" to its impact statement requirement, and it mandated each agency to "consult" with CEQ, not receive its approval. In all other respects, however, the report was as forceful a statement of environmental policy as supporters had hoped. [Flippen, J. Brooks, Nixon and the Environment, University of New Mexico Press, 200, p. 48]
On December 20, Senator Jackson brought the bill before the Senate. He said that, "there is a new kind of revolutionary movement underway in this country." He continued:
The bill was "a response by the Congress to the concerns the Nation's youth are expressing." He saw NEPA not as a panacea, "but as a starting point" in addressing the consequences of "the exhaustive and impersonal technology modern science has created."
Senator Jackson explained the rationale behind the action–forcing mechanism:
Neither the impact of highways, including construction of the Interstate System, nor the action–forcing mechanism was uppermost during the debate. The focus was on CEQ. However, Senator Muskie stated that Section 102 would "apply strong pressures on those agencies that have an impact on the environment—the Bureau of Public Roads, for example, the Atomic Energy Commission, and others." He continued:
This strong language in that section  is intended to bring pressure on those agencies to become environment [sic] conscious, to bring pressure upon them to respond to the needs of environmental quality, to bring pressure upon them to develop legislation to deal with these cases where their legislative authority does not enable them to respond to these values effectively, and to reorient them toward a consciousness of and sensitivity to the environment.
Senator Muskie did not fully understand the provision ("I understand that the nature and extent of environmental impact will be determined by the environmental control agencies"), but most of his colleagues took little or no notice of it.
Senator Jennings Randolph addressed his colleagues during the floor debate, but did not comment on how Section 102 might impact the roadbuilding program. Like many committee Chairmen, he was concerned about the jurisdiction issue that arose because the bill emerged from Senator Jackson's committee but spanned the activities assigned to many other committees, including his Committee on Public Works.
In addition, he acknowledged the need for NEPA while pointing out the tradeoff that, "as we put down a mile of highway, no matter what type of road it is, we are not only placing cement or asphalt on the earth, but we are enabling people to move from one point to another." In a reflection of the uncertainty at this stage of what constituted the "environment," he cited the requirement for negotiation with those whose homes or businesses would be taken for a highway project as an example "to indicate that we are moving more broadly and more sufficiently to improve environmental quality." Senator Randolph did not mention the Urban Impact Amendment of the 1968 Act that had nearly torn the Federal–State partnership apart.
The Senate approved the bill.
The House of Representatives took up the bill, introduced by Representative John D. Dingell (D–MI) of Detroit on December 23. Senator Randolph's House counterpart did not participate in the floor debate. Like Randolph, Representative George H. Fallon (D–Md.), Chairman of the Committee on Public Works, was a longtime supporter of roads. Fallon also was one of the chief authors of the Federal–Aid Highway Act of 1956. Through his long congressional career (1945–1971), he rarely addressed the House on any subject other than roads. On December 20, after reviewing the conference report, he submitted questions to Representative Dingell, who incorporated them, with answers, into the record.
One of Fallon's questions related to the jurisdictional issue that Senator Randolph had expressed: which committee would have jurisdiction over the annual report of the President required by Section 201? (The President's report and its recommendations would be shared with the appropriate committees.)
Fallon also asked about potential conflicts between CEQ and the proposed Office of Environmental Quality included in the Water Quality Improvement Act of 1969, then in conference. (The new office would mesh with the CEQ to assist in implementing environmental policy and legislation. The Office of Environmental Quality was authorized by Public Law 91–224.)
Finally, he asked:
Is it intended that the Council become involved in the day to day operation of the Federal agencies, specific project [sic], or in inter–agency conflicts which arise from time to time?
The question suggested that Chairman Fallon was concerned that CEQ might block highway or other projects, or that it might add costs for environmental mitigation, but Fallon's letter did not explain what was behind the question.
The answer was that the conferees did not view NEPA "as implying a project–by–project review and commentary on Federal programs" for CEQ:
Rather, it is intended that the Council will periodically examine the general direction and impact of Federal programs in relation to environmental trends and problems and recommend general changes in direction or supplementation of such programs when they appear to be appropriate. It is not the Conferees' intent that the Council be involved in the day–to–day decision–making processes of the Federal Government or that it be involved in the resolution of particular conflicts between agencies and departments. These functions can best be performed by the Bureau of the Budget, the President's Interagency Cabinet–level Council on the Environment, or by the President himself.
NEPA Becomes Law
After the House and Senate approved NEPA in a groundswell of environmental enthusiasm, the bill went to President Nixon. Flippen explained how the President viewed the bill:
The committee report sailed through both houses of Congress, reaching Nixon's desk just after Christmas… Surprisingly, no one in the White House recognized the significance of the impact-statement requirement, the only true coercive portion of the bill and the one in which environmentalists placed so much faith. No executive agency recommended against approval, despite potential conflicts with the new CEQ. In the years to come, Nixon would come to regret this oversight, but at the end of his first year in office, the bill appeared only a minor nuisance…In any event…to veto the bill was to court political disaster, for the environmental "bandwagon" ensured a congressional override…If he were to stage properly the signing ceremony, choose his words wisely, and follow with credible appointments, NEPA could work in the administration's favor. Coupled with his coming environmental message to congress, it would finally win the political initiative that the White House had so long sought. [Nixon and the Environment, p. 48-49]
Nixon decided that New Year's Day, a typically slow news day, would be perfect.
Few developments competed for the nation's attention, and, with opponents on vacation and the ceremony three thousand miles from the focus of national debate, Nixon could turn coverage to his advantage, away from the true Democratic genesis of the bill. In addition, signing NEPA on the first day of the new decade offered symbolic significance. If he were to highlight properly the signing as only the first action of a new era in which the government would protect America's environmental heritage, the press would focus on the future, in which the administration planned an environmental offensive, and not on the past, in which the White House had encountered little but environmental criticism. [Nixon and the Environment, p. 50]
On January 1, 1970, at around 10 am, President Nixon signed NEPA (Public Law 91-190) during a holiday stay at his home, known as the "Western White House," in San Clemente, California. It was the morning of New Year's Day, so he could not hold an elaborate signing ceremony with the congressional authors of the bill who might have distracted from the President's attempt to dominate the environmental issue. Photographers and a few reporters showed up for the event.
John Osborne, who wrote the weekly "Nixon Watch" column for The New Republic magazine, saw an additional purpose in the signing:
Two events during his stay in San Clemente at the end of his first year in office suggested that this very private President was trying, at the start of his second year, to correct the impression that he is so closely guarded, by himself and by his staff, because he is afraid to show himself in ways and situations that may expose to general view the man within the shell. On New Year's morning, at the signing of a bill requiring him to substitute a statutory environmental council for the one he created on his own authority, he appeared to the reporters whom he joshed and allowed to josh him, just a little, to be wholly at ease, really enjoying the occasion and the exposure that went with it. [The other event was allowing reporters to watch him golf, badly, at a Los Angeles country club.] [Osborne, John, The Nixon Watch, Liveright, 1970, p. 199]
His prepared remarks stated that the country would have to work in a bipartisan fashion on the environment "because it is now or never." Looking ahead 10 years, he said, if we do not start now, "we will not have an opportunity to do it later." The Nation will have "millions more automobiles," and water will be less pure, so it will be "much harder to turn it around." A major goal for the next 10 years "must be to restore the cleanliness of the air, the water, and that, of course, means moving also on the broader problems of population, congestion, transport and the like."
Nixon explained that all industrial societies have similar problems:
What we really confront here is that in the highly industrialized, richest countries, we have the greatest danger. Because of our wealth we can afford the automobiles, we can afford all the things that pollute the air, pollute the water, and make this really a poisonous world in which to live.
Flippen pointed out that while "Nixon had played no role in the passage of NEPA," he was now portraying it as a reflection of his concern about the environment. The President reinforced that idea after signing the bill:
Chatting with reporters after signing the bill, Nixon told how he had recently taken a friend, Charles "Bebe" Rebozo, on a drive through the countryside of Orange County outside Los Angeles. In ten years, they had agreed, development would scar forever the beauty of the land, an occurrence not unique to southern California. With NEPA and a slew of legislation planned in the near future, Nixon promised, his administration would not let such a tragedy unfold. [Nixon and the Environment, p, 51]
The White House also issued a Statement by the President on NEPA that concluded:
The Act I have signed gives us an adequate organization and a good statement of direction. We are determined that the decade of the ‘70's will be known as the time when this country regained a productive harmony between man and nature.
The statement also referred to Senator Muskie's proposal to establish an Office of Environmental Quality to staff CEQ. "I believe this would be a mistake," the President said. He added:
No matter how pressing the problem, to overorganize, to overstaff or to compound the levels of review and advice seldom brings earlier or better results.
In addition to the President's remarks and statement, the White House issued a press release focused on CEQ. None of these documents mentioned the environmental reviews that individual Federal Agencies would have to conduct on a project-by-project basis.
The New York Times covered the signing on its front page and reprinted the text of the President's statement on page 12 along with continuation of the article. A photograph on page 12 showed Nixon "giving reporters pens he used to sign" the bill. Nixon would not reveal his appointees to CEQ. "But he said that the council would be assisted by a 'compact staff,' and would function with the same close advisory relation to the President that the Council of Economic Advisors does in fiscal and monetary affairs."
A companion article on page 12 titled "Challenge by Democrats" discussed concerns expressed by Senators Jackson and Muskie. They agreed with the President's statements, but had "some residual doubt about how much effort and money the Administration was prepared to devote to carrying out the policy proclaimed in the new law." Senator Jackson said that implementation of NEPA "will require a real commitment of funds and a re-ordering of our national priorities."
Senator Muskie objected to the President's comments about staffing. In addition to rejecting the Senator's staffing proposal, the President told reporters he thought that NEPA provided an "adequate organization and a good statement of direction." The Senator said:
There is no surplus of staff involved. If the council is to do the substantive job contemplated by the Congress, it will have to have the Office of Environmental Quality.
Senator Jackson, the article noted, had disputed the capability of the President's EQC. He and Congressman Dingell "felt that the President had created his Cabinet council to forestall Congressional action and to give the impression that the Administration was more active than in fact it was." They also believed that EQC had too many responsibilities and too few employees for the task.
The newspaper also printed a three-column "Man in the News" story about the "Sponsor of Pollution Control Bill," calling Senator Jackson "one of the most powerful members of the United States Senate." It described his chief concerns as "the extension of America's nuclear and military powers" and his "staunch support of American involvement in Vietnam." Referring to his success in maneuvering NEPA to passage, the article said, "The last time he maneuvered so diligently for a piece of legislation was in support of the antiballistic missile." His support for the supersonic transport plane and other military investments earned him the nickname "Senator from Boeing." (Senator Jackson, who had been in the House of Representatives from 1941 to 1953, served in the Senate from January 3, 1953, until his death on September 1, 1983.)
The two Times articles about NEPA focused on CEQ. In the final sentence of the next-to-last paragraph of "Challenge by Democrats," the article referred to the action-forcing mechanism. "It also directs that all Federal agencies must include in their legislative recommendations and proposed actions a statement on the environmental impact of the proposals." ["Nixon Promises an Urgent Fight to End Pollution," Kenworthy, E. W., "Challenge by Democrats," and "Sponsor of Pollution Control Bill, The New York Times, January 2, 1970]
Critics had to give the President credit for signing NEPA and saying the right things, but they assumed, as Flippen put it, that "when the glare of publicity dimmed, Nixon would show his true colors and appoint weak members" to the CEQ, possibly even members hostile to Federal regulation or unwilling to stand up to industry. Instead, on January 29, Nixon appointed Train as chairman of CEQ. "Everyone knew where Train stood on the environment; he was, as [Deputy Assistant to the President for Domestic Affairs John] Whitaker later recalled, ‘for the environment first, Nixon second.'"
The President appointed two other distinguished members to CEQ along with Train:
Joining Train were Gordon MacDonald and Robert Cahn. MacDonald was a geophysicist and member of the Environmental Studies Board of the National Academy of Science, then serving on the faculty of the University of California at Santa Barbara. Cahn was a Pulitzer Prize-winning conservation reporter for the Christian Science Monitor. Together the appointees stood as a formidable trio, not one a lackey to industry. They were to "carry the ball," Nixon instructed them in the Oval Office, to "get the administration out front on the environment." [Nixon and the Environment, p. 52]Z
Nixon pointed out to reporters that Train and Cahn lived in Washington, while MacDonald would be moving from California, "the smog-free part—Santa Barbara." The President added that Dr. MacDonald "is an expert, incidentally, on the Santa Barbara oil problem. That is where I first became acquainted with him."
The President explained the CEQ's purpose to the assembled reporters:
In a separate statement, the President outlined the CEQ's role, adding that the EQC would be renamed the Cabinet Committee on the Environment "and will be used as a forum in which the President and appropriate Cabinet officers can discuss environmental issues." The statement concluded:
Environmental problems occur today because we were not alert enough, informed enough, or farseeing enough yesterday. The new Council on Environmental Quality will work to remedy these deficiencies and will thus contribute, in a most significant way, to the quality of American life for all.
Senator Jackson's committee confirmed the three promptly.
Professor Caldwell, in a retrospective article, said:
NEPA implies a major modification and even a reversal of long established priorities in the political economy of the Nation. The disruptive effects of the Act on the business-as-usual economy do not appear to have been foreseen by the Congress or by those interests most likely to have been affected. However, the weekly news magazine Time observed, in its issue of August 1, 1969, that if NEPA became law, its impact might be felt by ". . . every imaginable special interest—airlines, highway builders, mining companies, real estate developers, . . ." and all federal policies with environmental implications would be open to challenge. [Caldwell, Lynton K., "The National Environmental Policy Act: Retrospect and Prospect, Environmental Law Reporter, March 1976, 6 ELR 50036]
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