National Energy Policies and the Environment: Can the National Environmental Policy Act Provide a Harmonizing Framework?

This post was written by CPR Member Scholars Joel A. Mintz and Robert L. Glicksman. Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation's energy needs, but will also have immense consequences for the nation's environment and, indeed, for the future of our planet. This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of the modern environmental era in the United States. Many of the precedent-setting judicial decisions throughout this era emerged from cases involving a potential clash between energy needs and environmental consequences. These have included disputes over the environmental impacts of coal leasing in the northern plains, offshore oil and gas leasing, geothermal development, hydroelectric power production that is potentially damaging to fish and other aquatic life, the issuance of patents to extract hardrock minerals, and the back end of the nuclear fuel cycle. Despite this longstanding and apparent overlap of energy and environmental policy, it is perhaps unfortunate that energy law and environmental law in the United States are both based upon a disparate and complicated set of federal and state statutes, regulations, and policies. They exist in separate spheres, with occasional exceptions such as the amendments to the Federal Power Act that require the Federal Energy Regulatory Commission to take the impacts of hydroelectric power production on anadromous fish and other aquatic life into account when making licensing decisions on hydropower facilities. Notwithstanding this tendency toward fragmentation at the national level, one visionary statute may provide a valuable framework for harmonizing the nation's important environmental concerns with its energy needs: the National Environmental Policy Act of 1969 (NEPA).