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It is, as the lawyers say, black letter law that the National Environmental Policy Act, or NEPA, is a procedural statute, which provides no substantive protection to the environment. It merely requires the appropriate level of assessment of the potential environmental consequences of federal action. Whether the action should be taken is outside NEPA's purview.
Rarely, however, has this critical limitation on NEPA's scope been stated so plainly as in yesterday's decision in Save Strawberry Canyon v. U.S. Department of Energy,
in which Judge Alsop of the Northern District of California rejected a NEPA-based challenge to a DOE-funded laboratory at the University of California. As Judge Alsop wrote:
As an empirical matter, I'm skeptical that judges' views on the merits of projects don't infect their thinking regarding whether NEPA procedural requirements have been met, but the decision is nonetheless a salutary reminder of both NEPA's purpose and its limits.
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