Addressing the Quiet Crisis:
Origins of the National Environmental Policy Act of 1969
One casualty of NEPA was the era of personal mediation. During the 1950's and 1960's, State highway officials decided the location of Interstates by selecting the best route on the basis of geography, cost, economic benefit, directness of routing, minimum disruption of homes and businesses, political factors-all outside the public view.
When controversy arose, Federal and State highway officials met to decide on the routing that would be eligible for Interstate funds. Federal Highway Administrators John A. Volpe (1956-1957), Tallamy, and Whitton, and their chief engineer, Frank Turner, often met with State officials to decide on routing. Decisions might be made in formal settings, but could just as easily be made informally. For example, a diner near the site, with maps spread out amidst coffee cups and ashtrays, was sometimes where Federal and State highway engineers decided highway location.
As noted, public hearing requirements dated to the 1950's, but were seen as opportunities to inform the public of plans, not to gather information for consideration in developing the project. Initially, they were geared to assuage the fear of towns and cities that were going to be bypassed. During the late 1950's and 1960's, as controversies grew over planned highway projects, the highway community saw the public hearings as one of several venues for telling their story better and winning support for their proposals. Surely, highway officials reasoned, controversies occurred because people didn't understand the benefits they would receive from the new highways. As laws were enacted to increase consideration of environmental issues, the role of the public hearings changed to a forum for gathering comments that would be addressed during environmental reviews.
On rare occasions, even Presidents became involved in personal mediation. On September 17, 1963, for example, President Kennedy, Secretary of Commerce Luther Hodges, and Administrator Whitton met in the White House with Governors John Dalton (Missouri), Frank Clement (Tennessee), Otto Kerner (Illinois) and Bert Combs (Kentucky) to discuss I-24. After what The Nashville Tennessean called "years of haggling," the Governors had agreed on a compromise routing for I-24 and creation of a 64-mile Interstate from I-55 at Hayti, Missouri, to I-40 at Jackson, Tennessee, via Dyersburg. After listening to the Governors, the President directed Whitton to study the proposal. (The BPR agreed to the compromise routing for I-24, but approved only a portion of the Interstate addition, from Hayti to Dyersburg (I-155).)
The process was informal and involved negotiations behind the scenes as crucial routing decisions were made. Through the mid-1960's, with pressure building from environmentalists, Civil Rights advocates, and urban critics to curb the Interstates, the process continued with the Administrator or Secretary of Commerce (the Secretary of Transportation beginning in 1967) approving or turning down controversial Interstates. For example, two Administrators under President Lyndon B. Johnson (Whitton and Bridwell) approved the 3.5-mile I-310/Vieux Carré Expressway through the historic French Quarter in New Orleans, Louisiana, before Secretary of Transportation Volpe turned the proposal down under President Nixon. (For more details, see "The Second Battle of New Orleans" at http://www.fhwa.dot.gov/infrastructure/neworleans.cfm.)
Secretary of Transportation William T. Coleman, Jr. (1975-1977), who served under President Gerald Ford, was probably the last Secretary to engage in personal mediation when he announced his approval in January 1977 to construct I-66 inside the Capital Beltway in Virginia into Washington, D.C. Having held public hearings in Virginia in 1975 and 1976, Secretary Coleman approved a four-lane, limited access highway with Metrorail's Vienna line in its median. Heavy duty trucks were excluded, and during peak hours, traffic in the peak direction would be limited to buses, automobiles with four occupants, emergency vehicles, and Dulles Airport traffic. I-66 opened inside the Capital Beltway on December 22, 1982, but its limited capacity, even with Metro in the median, would remain a source of controversy.
Highway officials during the early years after NEPA recognized that it and its companion legislation, such as Section 4(f) and Section 136 of the 1970 Act, would have profound impacts on the Federal-aid highway program. The president AASHO for 1971, W. J. Burmeister of the Wisconsin Department of Transportation, expressed these concerns in a speech on March 10, 1971. He noted that Administrator Turner expected the clearance of environmental statements could extend project development time by as much as 6 months. Burmeiseter said, "I think even this is a conservative estimate of the time required for some of the more controversial projects." To illustrate, he cited an example that had recently emerged during a public hearing on the routing of I-43 between Milwaukee and Green Bay:
I read the account of testimony given by an individual who was criticizing our Division of Highways for the location of [I-43] and challenging even the need for such a highway. He lives in the Kettle Moraine area, but commutes daily to Milwaukee, a round trip of approximately 80 miles. He makes a considerable point of wanting to live in isolation in the Kettle Moraine, which is considered a part of the National Ice-Age Park...I contend this is an irresponsible, antagonistic attitude toward an improved highway in the area, and if he is really conscientious about not despoiling the environment and ecology, and not contributing to the pollution, then he ought to live closer to his place of employment.
With such "determined opposition," Burmeister was convinced that NEPA "will very materially retard the approval of projects, and in some instances, may completely preclude such approval." He did offer his colleagues some hope:
Perhaps the extreme activity of some of the most ardent defenders of the environment and ecology have overplayed their hand to the extent that the public interest will suffer rather than be benefited by their activities. Perhaps the pendulum has swung too far in one direction.
He hoped the pendulum would "swing back to the center" so decisions can be jointly reached that "can be accepted by those who are now antagonistic toward the Highway Program..."
Alf Johnson picked up the theme during a speech to AASHO's Mississippi Valley Association on March 21, 1971. He explained that any popular program eventually reaches a stage of public apathy. When that happens, "the critics, motivated by various reasons" and being "articulate, aggressive forces," gradually "gather supporters and it can become a fad to oppose the program and disenchant the public with it." That was, he said, "the spot we are in right at this moment." Only when service deteriorates as a result of the critics' effectiveness is public interest rejuvenated.
He was "shocked at the headway that the anti-highway movement" had made and disturbed by the "degree of resentment against highway departments by many city officials." He attributed the resentment to the success of the highway program while city officials struggled with limited funding. City officials also resented highway officials "on the grounds that they are not elected officials." He added:
The environmental impact requirements now being made for the highway departments can well be the straw that breaks the camel's back in stalling the highway program. We have college professors all over the country analyzing the itemized checklist in the environmental requirements of the highway program and developing instructions for bringing litigation and stalling highway projects with injunctions.
With such critics and other assaults, Johnson was afraid the Federal-aid highway program would "fall of its own weight." [Mertz, p. 185-188]
As these comments suggest, highway officials had a hard time understanding their critics or accepting the validity of their criticism. The success the critics were having in securing legislation to hinder the Federal-aid highway program was not only frustrating but inexplicable to highway officials who recalled the years, not so long ago, when they were praised for the pleasure they brought to motorists. At AASHO's annual meeting in November 1972, president J. C. Dingwall of Texas lamented the "changing of the guard in the leadership of the highway program in the United States," citing the retirements of Alf Johnson from AASHO and Frank Turner from FHWA as examples of the departure "of the statesmen who participated in the revitalization of the Federal aid highway program in 1956." These departures were especially ill-timed in view of "what's going on in our society." He explained:
Highways are under attack from all directions. I think that this is so because there is a substantial protest subculture in the United States whose chief targets are the successful elements of the so-called Establishment. There is an amazing lack of protest over the failures of other program. But show me a successful program, or organization, or institution and I'll show you a target for these attacks.
Along with many officials who preceded him, Dingwall saw the solution in public relations:
We must tell the story like it is, and we must be certain we are chipping away at everything that doesn't really look like our particular elephant. [Mertz, p. 205-206]
Turner, in his address to the Mississippi Valley Conference, illustrated how times had changed by pointing out that "many of the things that we are looking at today that we consider to have been mistakes in the program are largely things that we did under a different policy." He recalled testifying before the Senator Committee on Public Works a decade earlier and being "berated rather heavily, along with other highways officials, as to the high cost of this particular program." At the time, "the emphasis then was on cost, do it cheaper, cut out fringe things, keep the cost down."
Over time, "The policy has changed. The people have changed." He said that, "I believe we are working now in harmony with the policy and legislation that is before us." He expressed the hope "that we would be allowed to continue to administer the program and get the job done" under the new conditions. [Kansas, p. 11]
Years later, in a 1988 oral history, Turner recalled the social revolution of the 1960's:
I consider that-all of that upheaval of the 1960s [was] much larger than just singly the environmental question so far as the highway program is concerned. To my way of thinking-I don't mean it to be sacrilegious but almost a revolution in a way, almost like the...birth of Christ. It was just everywhere. And it was in everything...It wasn't just highways. It wasn't just dams and locks and the Corps of Engineers. You guys [sic-probably referring to AASHTO, which sponsored the oral history] and the Bureau, I think, were target number one to everybody because we were convenient...
But everything had to be changed. Everything in life at that time was wrong. Whatever you were doing at the time was wrong. We have a completely new generation. We were going to turn the world around. We were in the middle of the Vietnam war, the upheaval over there, and there was all that agitation...Just-the breakdown of morals, families, all these kinds of things. It was a whole complete upheaval. We just happened to get caught in it. [Greenwood, Dr. John T., Interview with Frank C. Turner, American Association of State Highway and Transportation Officials, February 1988, Unpublished Transcript, p. 111-112, edited for readability]
In a companion 1988 oral history, Lester P. Lamm, who served as FHWA Executive Director (1973-1982) during the adjustment period, recalled the views of the earlier generation of road builders:
[The] era was so much more complex than the earlier managers of the highway program and the Interstate system had to deal with. Everything you can think of was changing, and again, thinking back on fifteen years with the Administrator's Office in the Federal Highway Administration, that was really what I thought was our collective challenge, my own personal most difficult challenge, was to keep the process going, keep the program going, while everything that we had previously used as direction or guideline or any kind of milestone was changing.
What you could count on in the 1960s, 1950s, 1940s, without exception, you couldn't count on in the 1970s and 1980s. [Rosen, Dr. Howard, and Greenwood, Dr. John T., Interview with Mr. Les Lamm, President, Highway Users Federation, American Association of State Highway and Transportation Officials (AASHTO), July 1, 1988, Unpublished Transcript, p. 65, some editing for readability]
Lamm had joined BPR in 1955, and so was of a later generation than Turner, who had joined in 1929, and his counterparts heading the State highway agencies:
We were getting someone's reaction in the late 1960s, early 1970s to a problem, and probably...a part of a highway project that shouldn't have been allowed to continue, but because it had been worked on for years by the state and by the Bureau of Public Roads, they all wanted it done...And it was a very definite challenge to us to undertake whatever modification you needed to in the process to keep a program going, keep the funds being used, and still abide by the ever-increasing series of requirements. [Rosen, p. 61]
Perhaps because Lamm was younger, he could see the value of the changing landscape:
I think anybody who was around 30 years ago would tell you that things were simpler then-the golden age of roadbuilding. I personally think we have, in the 1970s and 1980s we have made more strides and we ought to be prouder of what we have done because we have had to do it with so many constraints and so many obstacles. [Rosen, p. 70]
The defensiveness evident in Turner's initial speech after enactment of NEPA was understandable:
I think to the engineers of Frank's vintage, it was particularly troublesome because they themselves would have invested 10, 20, 30 or 40 years in a system that they are seeing to some degree being repudiated. To people in maybe a later generation and certainly in my own case I didn't see it that way. I personally felt we were collectively just being challenged to do the old job in a new fashion, to be more aware of the non-highway service consequences of the highway program. [Rosen, p. 33]
The Year of the Environment
In many ways, 1970 was the year of the environment. It began with President Nixon signing NEPA on January 1. It included Earth Day, creation of EPA, and approval of legislation on December 31 to strengthen the Clean Air Act. The bill was not entirely to the President's liking. It included provisions, such as requiring EPA to set national ambient air quality standards and requiring States to test vehicle auto emission systems, that he had opposed. Moreover, Senator Muskie, the President's most likely rival in the presidential campaign of 1972, had been the chief sponsor of what was nicknamed the Muskie Bill. Nixon was tempted to veto the bill, but recognized that doing so was not feasible politically.
Instead, the President held a White House signing ceremony in the Roosevelt Room before invited Members of Congress-not including Senator Muskie-and other officials. Before signing the bill, the President recalled the day in San Clemente when he signed NEPA:
And I see in this room a few who were present in San Clemente on the first day of 1970 when I said that this would be the year of the environment, that it was now or never if we were to clean up the air and clean up the water in major parts of the United States and to provide the open spaces that are so important for the future generations in this country.
The year 1970 has been a year of great progress in this field. In February, you will recall that I submitted the most comprehensive message on the environment ever proposed by a President of the United States. During the year, there have been some administrative actions, some legislative actions.
He called the bill he was about to sign the most important clean air legislation "we have this year and the most important in our history." It resulted, he said, from bipartisan cooperation, including the President's proposal and bipartisan efforts by Senators and Congressman from both parties. He cited Senators Jennings Randolph and John Sherman Cooper, and Representative William Springer (R-Il.), but not Senator Muskie.
Signing the bill was "only a beginning, because now comes the enforcement." That would fall to William Ruckelshaus at EPA, the enforcement agency, and Russell Train at CEQ, which would help develop significant new recommendations for 1971.
The President said that "1970 will be known as the year of the beginning," while he expected 1971 to be "the year of action." Enforcement of the clean air bill would be a good indication because automobile pollution "is one that not only now plagues my native area of southern California but all the great cities of this Nation." He added that "most of the great cities of the world have similar problems." By signing the law, he was providing tools to "avoid the dangers that continuing air pollution by automobiles and through other methods will be going forward."
Just before signing the bill, he concluded his remarks:
So, it seems very appropriate that in this room, the Roosevelt Room, a room that is named for both Roosevelts, Franklin Roosevelt and Theodore Roosevelt, but particularly in view of the fact that Theodore Roosevelt, who was the man most remembered in American history for his interest in conservation, his interest in the environment, that this bill is being signed here; this, it seems to me, is most appropriate.
And I would only hope that as we go now from the year of the beginning, the year of proposing, the year 1970, to the year of action, 1971, that all of us, Democrats, Republicans, the House, the Senate, the executive branch, that all of us can look back upon this year as that time when we began to make a movement toward a goal that we all want, a goal that Theodore Roosevelt deeply believed in and a goal that he lived in his whole life...And if, as we sign this bill in this room, we can look back and say, in the Roosevelt Room on the last day of 1970, we signed a historic piece of legislation that put us far down the road toward a goal that Theodore Roosevelt, 70 years ago, spoke eloquently about: a goal of clean air, clean water, and open spaces for the future generations of America.
By the end of the "year of action," President Nixon had rejected the idea that he could win the support of environmentalists. He received little or no credit from political opponents for his environmental accomplishments - Muskie accused him of launching only "a sham attack on pollution," and that appeared to be the public perception. By February 1971, he told Chief of Staff H. R. Haldeman, "The environment is not a good political issue. I have an uneasy feeling that perhaps we are doing too much" by catering to the left, which praised Senator Muskie, also known as "Ecology Ed," for his strong environmental stance. The President wanted to back away from efforts to reach out to his opponents and stress ideas that would appeal to his conservative supporters. Strong enforcement by EPA's Ruckelshaus was no longer appreciated, as Nixon made clear in a meeting with Henry Ford II of the Ford Motor Company and Lee Iacocca of Chrysler Corporation after EPA had issued tough clean air standards. Flippen reported Nixon's comments:
"Whether it's the environment or pollution or Naderism or consumerism," Nixon told the executives, "we are extremely pro-business." [He] added, "Environmentalists are a group of people that aren't really ... interested in safety or clean air." Their interest lay "in destroying the system." [Nixon and the Environment, p. 142]
He made clear that the White House, not EPA, CEQ, or the Interior Department set administration policy. The White House would protect the companies from "enemies of the system."
With the 1972 presidential election around the corner, the President had concluded that, "You can't out-muskie Muskie," as he told an aide who suggested returning to a pro-environment public position. [Nixon and the Environment, p. 152] As it happened, though, Senator Muskie was not the President's opponent in November 1972. Muskie's campaign was derailed in New Hampshire before the primary when he appeared to be crying as he defended his wife against embarrassing claims (planted by Nixon's "dirty tricks" team).
Instead, the Democrats nominated Senator George McGovern of South Dakota, primarily for his anti-war stance, and Senator Thomas Eagleton of Missouri for Vice President. A few weeks later, reports emerged that Eagleton had once undergone electroshock therapy for depression, a treatment he had not mentioned to his running mate. When McGovern told the public that he backed Eagleton "1,000 percent," only to ask him to withdraw 3 days later, the campaign was fatally wounded. Adding Sargent Shriver, a brother-in-law to the Kennedys and former Ambassador to France, to the ticket, McGovern took his anti-war message to the electorate. President Nixon won in a landslide, securing 520 electoral votes to McGovern's 17 (all from Massachusetts and the District of Columbia).
President Nixon's interest in the environment was not revived in 1973, and came to an abrupt halt on October 17, 1973, when 11 Middle East nations proclaimed a progressively increasing monthly cut in exports of oil to the United States and other nations perceived as unfriendly to Arab goals, namely the elimination of Israel. The resulting energy crisis outweighed the environmental issues raised by efforts to increase domestic energy production and keep the economy running. Just as the energy crisis was abating in March 1974, Nixon would tell the Cabinet: "Promote energy developments. Get off the environmental kick." [Nixon and the Environment, p. 214]
The following weekend, as the scandals collectively known as Watergate swirled around the President, he ordered Attorney General Elliot Richardson to fire independent counselor Archibald Cox. Richardson refused and resigned. Next, the President ordered the Deputy Attorney General, former EPA Administrator Ruckelshaus, to fire Cox. Ruckelshaus, too, refused and resigned. Finally, the President turned to Solicitor General Robert Bork, who had become acting head of the Justice Department. Unlike Richardson and Ruckelshaus, Bork had not made promises to the congressional committee overseeing Cox about not interfering in the independent investigation. Following the President's order, Bork fired Cox. For the President, what became known as the "Saturday Night Massacre" on October 20, 1973, was in vain. Watergate would not go away. He would resign less than a year later, on August 9, 1974.
Whatever Nixon's motivation and later regrets about his Administration's environmental actions, he oversaw a major change in government action. Flippen summarized the result:
His presidency was, in a sense, a window of opportunity for the nation's environment. The problems were tremendous and complex, but never before or since has public enthusiasm been so great or the political climate so accommodating for progress. The window was short, perhaps, beginning to shut before Nixon left office, but one still cannot deny the long list of accomplishments that remain.
In addition to NEPA and EPA, Flippen cited the regulations that emerged from the Nixon era "in a spate of legislation unsurpassed in the years since." He continued;
Endangered species, pesticide control, ocean dumping, coastal zone management, marine mammals-the breadth of legislation was matched only by the rapidity with which Congress passed it. Russell Train was correct in concluding that the Nixon era "put into place the basic principles and framework of environmental law."
...Early in his administration, if solely to gain the political initiative, Nixon lent the full weight of the presidency, the prestige and aura of his office, to the environmental cause. His speeches, if not his heart, were unequivocal. If, at the outset, his program was insufficient to meet the challenge and sure to engender criticism in Congress, it still significantly improved upon the existing state of affairs. Many of his proposals were themselves revolutionary and were ultimately incorporated into law. Nixon, in short, helped build the momentum for environmental protection that he later found so troublesome. [Nixon and the Environment, p. 226-227]
As Flippen added, NEPA remains "the cornerstone of American environmental policy." It remains essentially unchanged, "a clear and concise statement of American environmental values." CEQ had been the main feature of NEPA for those who approved it. Environmental writer Bil Gilbert pointed out:
Since this council had no enforcement powers, the legislation was generally thought to be innocuous-essentially a statement of good principles on the order of those that speak well of mothers and apple pie. [Gilbert, Bil, "Earth Day plus 20, and counting," Smithsonian, April 1990, p. 50]
CEQ was at its strongest in the first years after its creation, with competent environmentalists heading the small office. Its influence began to decline as President Nixon's interest in the environment as a political issue waned, and reached a low point when President Reagan fired its entire staff, reduced its budget, and left it with a reduced role.
However, the environmental review process, inspired by Professor Caldwell's call for an action-forcing mechanism, remains strong. Flippen commented:
Although underappreciated at the time of passage, its impact-statement requirement transformed the balance of power in the environmental struggles that followed, with the Nixon administration only the beginning. By 1980, agencies had filed over eleven thousand statements, almost 10 percent ending in litigation. Of this total, the courts blocked action in almost 20 percent. By 1990, the number of statements had stabilized at almost five hundred a year, and showed no sign of abating. [Nixon and the Environment, p. 226]
As it turned out, this provision put some very sharp teeth in NEPA, since it gave environmentalists a chance to put intense pressure on agencies to respect EIS findings.
Initially, many public land managers and would-be private developers fiercely resisted the EIS process on the grounds that it was impractical, inconvenient and economically ruinous. After a number of adverse legal rulings, however, most of them concluded that NEPA was a slippery crevice that was best avoided by planning projects and filing EISes that did not bring down the wrath and lawyers of the environmentalists. [Gilbert, p. 50]
The highway community underwent something of the same transformation. Almost as soon as the action-forcing mechanism went into operation, officials began expressing concerns about the delays the environmental reviews caused. Since then, the highway community has come to see the approval of NEPA as one of the most positive moments in the history of the Federal-aid highway program. It provided an accepted framework for considering adverse impacts and resolving them, with the courts as the final arbiter in many cases.
On April 20, 1990, Federal Highway Administrator Thomas D. Larson (1989-1993) sent a message to all employees titled "Earth Day-More than a second Thought." Quoting the Gilbert article, it explained how NEPA had come to be. Dr. Larson recalled that by 1970, "America's love affair with the car in general and the Interstate System in particular was strained." The Greatest Public Works Project in History "had become an agonizing test of wills in many cities and in areas we now recognize to be environmentally sensitive." The program and the reputation of road builders "were tarnished." After initial resistance, the road builders realized that NEPA was not innocuous. With "grudging reluctance," the highway community came to see that "NEPA, the whole elevation of environmental consciousness, has been a positive influence on the FHWA and on our program." Dr. Larson continued:
Yes, it was inconvenient. Yes, it slows things up. And yes, it costs more. But I firmly believe the results are worth it. In the years since NEPA, we have built hundreds of highway projects that are "good neighbors." Some people still consider highways the "route" of all evil, but to a large extent NEPA, and the FHWA's implementation of it, have helped to restore a more favorable public impression and acceptance of our work.
The change in how the highway community went about its business, "while initially unsettling has proved to be profound and positive." [Larson, Thomas D., "Earth Day-More Than a Second Thought," Administrator's Note, Vol. I, Note 32, April 20, 1990, unpublished].
That same day, Dr. Larson approved FHWA's first Environmental Policy Statement. Much had been accomplished, the statement said, since the early 1970's to modify the project development process "to better address social, economic, and environmental considerations through the use of a systematic, interdisciplinary approach with increased public involvement and interagency cooperation." Nevertheless, environmental concerns remained, particularly for air and water quality and retention of wetland resources:
The FHWA, in partnership with the States, will work vigorously to preserve and, where practicable, enhance our environment. It should be recognized that the environmental impacts associated with highway projects can be substantial and in some cases, unacceptable. It is the FHWA objective to ensure that environment is given full consideration along with engineering, social, and economic factors in project decision making.
The policy covered five areas:
- Communication and Coordination,
- Mainstreaming Environmental Considerations,
- Protection and Enhancement,
- Research and Technology Transfer, and
- Development and Utilization of Environmental Expertise.
Larson concluded the policy statement by pointing out that, "Everyone has a vital stake in environmental quality." As trustees of the environment for future generations, "we must act creatively and decisively to minimize environmental degradation and protect environmental quality while enhancing lives by improving mobility." Following this policy, he said, would contribute toward President George H. W. Bush's "goal of leaving new generations with a better environment and a higher quality of life."
In a speech later that year to the National Conference on Highways and the Environment, Larson explained that, project-by-project since NEPA, "we learned from our experiences." Since then, environmental challenges had expanded, "including many that go to global issues well beyond the old scope of a highway project connecting point A with point B." He concluded:
We can't wait for experience. If we are to meet the new challenges facing us in the 21st century, we will have to consolidate our gains of the last 20 years and take Paul Bunyan-like steps towards the surpassingly important goal of giving to coming generations a planet that is a little better than it was when we started. [Larson, Thomas D., "Consolidating our Gains," National Conference on Highways and the Environment, October 29-November 1, 1990, FHWA 1991]