Document Type



This Article addresses the possibility, under the prevailing understanding of NEPA, that an agency might draft a comprehensive report containing information about potential environmental effects and alternate approaches to a proposed plan--and then wholly disregard all of this information in making its final decision. Although an agency may contend that it has “considered” the environmental consequences of alternative courses of action, what if these factors have no actual impact on its final decision? Hypothetically, an agency could simply “steamroll” toward its preferred decision, hurdling NEPA's procedural obstacles without genuinely considering potential environmental harms or the means to avoid them.

This Article questions whether formally including environmental factors in decision-making documents, but paying them no real heed, violates the “arbitrary and capricious” standard of the APA. If so, courts should engage in a more searching review, allowing their analysis to be informed by the APA's mandates.

Part II of this Article provides historical background and explains how lower courts, the Council on Environmental Quality (CEQ), and scholars have interpreted NEPA to have substantive power. Part III explains how the Supreme Court, unlike other institutions, has interpreted NEPA to be a strictly procedural statute that lacks much substantive force, mandates certain processes, but requires no substantive changes in decision-making. Part IV discusses the history of the APA, a statute, like NEPA, designed to ensure fully informed and explicated decision-making by administrative agencies. Part V examines the tension between the APA and the Supreme Court's NEPA jurisprudence, and concludes that despite the Supreme Court's restrictive interpretation of NEPA, an agency's failure to give any weight to environmental considerations in the decision-making process would be insufficient under the APA. This Part then suggests indicators for determining whether agencies have given appropriate weight to requisite NEPA concerns. Finally, Part VI provides an example of how these indicators might be applied. By considering this framework, and taking the APA into account, courts can prevent agencies from going through the NEPA process without substantively engaging environmental concerns.