Volume 79, Number 6

December 2004

Circumventing the National Environmental Policy Act: Agency Abuse of the Categorical Exclusion

Kevin H. Moriarty

The National Environmental Policy Act (NEPA), the nation’s seminal environmental-protection legislation, has affected tremendously the course of executive-agency decisionmaking. Its broad, ambiguous mandate that agencies consider the potential environmental impact of agency decisions has been interpreted aggressively to require thorough analysis of environmental factors and also that those considerations guide the ultimate conclusions of the decisionmaking process. The demanding analytic requirements, such as the environmental impact statement and the environmental assessment, are recognized to be a significant burden on the resources of executive agencies. Consequently, the agency charged with administrating NEPA has urged executive agencies to promulgate categorical exclusions–categories of actions that are exempted from traditional NEPA analysis due to their repetitive nature and the predictability of their limited environmental impact. This NEPA exception has steadily broadened and invited agency abuse to avoid the burdens of NEPA requirements and the scrutiny of environmental advocacy groups. The resulting litigation brought by advocacy groups to hold these agencies accountable has been expensive and time-consuming. In this Note, Kevin Moriarty explores the history of categorical exclusions and discusses past efforts to remedy potential abuses of agency discretion. The most recent incarnation of categorical exclusions includes a set of burdensome analytic requirements designed to counteract potential abuses that could result from the increased discretion provided in modern categorical-exclusions regulations. In this Note, Moriarty argues that if categorical exclusions were limited to their original form, fewer actions would be excluded, but the actions actually excluded would be protected from challenges through litigation. This Note concludes that the resulting loss of agency discretion through use of broad categorical exclusions would likely increase overall efficiency in agency decisionmaking.