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The National Environmental Policy Act and the Battle for Control of Environmental Policy

  • John Hart (a1)

Abstract:

In 1969, a public debate between President Nixon and Congress took place during the legislative passage of the National Environmental Policy Act and centered on two very different and competing conceptions of how presidential advice should be organized in the Executive Office of the President. It focused on the proposed establishment of the Council on Environmental Quality. The outcome of the ensuing battle represented a complete victory for congressional interests against the expressed wishes of the president. The nature of the debate has been overlooked in the literature on the presidency, but it highlights fundamental issues about agency design and presidential control of the institutional presidency. It also highlights broader concerns about the degree of congressional involvement in shaping the Executive Office of the President.

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The author would like to thank Dr. Douglas Craig, Dr. Louis Fisher, and Professor Beryl Radin for their helpful comments on an earlier version of this article and also the United States Studies Centre at the University of Sydney for a research grant that supported this work.

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NOTES

1. Clinton, William J., “Remarks Announcing the Creation of the White House Office on Environmental Policy,” in Public Papers of the Presidents of the United States: William J. Clinton 1993, Book 1 (Washington, D.C., 1994), 6263.

2. The vice president’s remarks are not included with those of the president in Public Papers of the Presidents. For the text of Gore’s contribution and the question-and-answer session that followed, see The White House, Office of the Press Secretary, “Statement by the President and Remarks by the Vice President on New Environmental Policy,” 8 February 1993.

3. Public Papers of the Presidents, 1993, 63.

4. See Kenworthy, Tom, “Clinton Plan on CEQ Sparks Tiff with Environmentalists,” Washington Post, 25 March 1993, A22.

5. The arguments against the abolition of the CEQ are conveniently elaborated in the Senate hearings held less than two months after the Clinton announcement. See U.S. Congress, Abolishing the Council on Environmental Quality, Hearings Before the Committee on Environment and Public Works (S. HRG 103-79), U.S. Senate, 103rd Cong., 1st sess., 1 April 1993 (Washington, D.C., 1993).

6. As it was to be a staff unit within the White House Office, it did not require approval by Congress.

7. Bill Clinton, My Life (New York, 2004).

8. Lewis, David E., Presidents and the Politics of Agency Design (Stanford, 2003), 22.

9. The National Environmental Policy Act had a lengthy and complex legislative history during the 1960s. Its origins, as both Dreyfus and Ingram and Lindstrom and Smith have pointed out, can be traced back to Senator James Murray’s proposed Resource and Conservation Act in 1959. See Dreyfus, Daniel A. and Ingram, Helen M., “The National Environmental Policy Act: A View of Intent and Practice,” Natural Resources Journal 16 (Spring 1976): 248, and Lindstrom, Matthew J. and Smith, Zachary A., The National Environmental Policy Act: Judicial Misconstruction, Legislative Indifference, and Executive Neglect (College Station, Tex., 2001), 28.

10. Shabecoff, Philip, “A Shrinking Agency That Survives,” New York Times, 6 May 1985, 12.

11. See U.S. General Accounting Office, Report by the Comptroller General of the United States, The Council on Environmental Quality: A Tool in Shaping National Policy, rept. No. CED-81-66, 19 March 1981, 6–7.

12. See Office of Management and Budget, Budget of the U.S. Government Fiscal Year 2019, An American Budget, Appendix (Washington, D.C., 2018), 1053.

13. As Professor Lynton Caldwell, one of the architects of NEPA, noted in his major review of the legislation, this was an arrangement that “has proved convenient for presidential budget and political priorities but alters the intended role of the CEQ, effectively reducing its deliberative functions and Title II responsibilities.” See Caldwell, Lynton Keith, The National Environmental Policy Act: An Agenda for the Future (Bloomington, 1998), 42.

14. Shortly after winning control of Congress in the mid-term election of 1994, the Republican majority in the House introduced what became known as the Federal Reports Elimination and Sunset Act of 1995 (Public Law 104-66). The CEQ’s Annual Environmental Quality Report was terminated under a schedule referred to in Section 3003(c) of that legislation.

15. See Hart, John, “President Clinton and the Politics of Symbolism,” Political Science Quarterly 110 (Fall 1995): 396.

16. For a detailed legislative history of NEPA, see Liroff, Richard A., A National Policy for the Environment: NEPA and Its Aftermath (Bloomington, 1976), chap. 2; Andrews, Richard N. L., Environmental Policy and Administrative Change (Lexington, 1976), chap. 2; Johnson, Dennis W., The Laws That Shaped America: Fifteen Acts of Congress and Their Lasting Impact (New York, 2009), chap. 12; Terence T. Finn, “Conflict and Compromise: Congress Makes a Law,” PhD diss., Georgetown University, 1972. For a concise yet broad overview of both the social and political forces behind the evolution of NEPA, see Lindstrom and Smith, The National Environmental Policy Act, chaps. 2 and 3.

17. See U.S. Congress, National Environmental Policy, Hearings Before the Committee on Interior and Insular Affairs, United States Senate, 91st Cong., 1st sess., 16 April 1969 (Washington, D.C., 1969), and Liroff, A National Policy for the Environment, 21.

18. The Office of Management and Budget and the Office of the U.S. Trade Representative have a longer pedigree in the EOP, but both are the current versions of earlier units and, legally, neither predate the Council on Environmental Quality.

19. Lindstrom and Smith give it brief consideration in The National Environmental Policy Act, 43–44.

20. See U.S. Congress, National Environmental Policy, 38, and Liroff, A National Policy for the Environment, 21.

21. Khiss, Peter, “Nixon Task Force Urges Creation of Top-Level Environmental Affairs Post,” New York Times, 14 January 1969, 27.

22. “Statement Announcing the Creation of the Environmental Quality Council and the Citizens’ Advisory Committee on Environmental Quality,” Public Papers of the Presidents: Richard M. Nixon, 1969 (Washington D.C., 1970), 422–23.

23. Liroff, A National Policy for the Environment, 21–22.

24. “Statement About the National Environmental Policy Act of 1969,” Public Papers of the Presidents: Richard M. Nixon, 1970 (Washington, D.C., 1971), 2–3.

25. U.S. Congress, National Environmental Policy, 72.

26. Ibid., 99.

27. Ibid., 89.

28. Ibid., 7.

29. Ibid., 80.

30. John C. Whitaker, Striking a Balance: Environment and Natural Resources Policy in the Nixon-Ford Years (Washington, D.C., 1976), 13.

31. Ibid., 50.

32. For the reorganization proposal, see President Nixon’s “Special Message to Congress on Executive Branch Reorganization,” 25 March 1971, Public Papers of the Presidents: Richard M. Nixon, 1971 (Washington, D.C, 1972), 473–89.

33. See Caldwell’s testimony in U.S. Congress, National Environmental Policy, 123.

34. Whitaker, Striking a Balance, 49.

35. U.S. Congress, National Environmental Policy, 205.

36. Ibid., 86.

37. Senator Jackson’s speech on the floor of the Senate is reprinted in U.S. Congress, National Environmental Policy, 24–25.

38. U.S. Congress, National Environmental Policy, 24–25.

39. U.S. Congress, Environmental Quality, Hearings Before the Subcommittee on Fisheries and Wildlife Conservation of the Committee on Merchant Marine and Fisheries, House of Representatives, 91st Cong., 1st sess., 7 May (Washington, D.C., 1969), 2.

40. U.S. Congress, National Environmental Policy, 101.

41. Ibid., 114.

42. Ibid., 67.

43. Ibid., 92.

44. Ibid., 123.

45. Ibid., 123 and 113–14.

46. Ibid. 130.

47. Bailey, Stephen K., “Managing the Federal Government,” in Gordon, Kermit, ed., Agenda for the Nation (Washington, D.C., 1968).

48. In referring to Professor Bailey’s paper, I cite the original Brookings Institution version rather than the edited version reproduced in the Senate Committee hearings on NEPA (see U.S. Congress, National Environmental Policy, 45–56). The edited version in the Committee’s hearings contains the first twenty-one pages of Bailey’s paper, but omits the last twelve pages. Those last twelve pages are particularly relevant to the discussion herein.

49. Bailey, “Managing the Federal Government,” 301.

50. Ibid., 303.

51. Ibid., 310–11.

52. Ibid., 313.

53. Ibid., 312.

54. Ibid.

55. Ibid., 330.

56. Ibid., 331.

57. Ibid., 327.

58. Ibid., 326–27.

59. Ibid., 327.

60. See, for example, Jones, Charles O., ed., Preparing to Be President: The Memos of Richard Neustadt (Washington, D.C., 2000).

61. Lewis, Presidents and the Politics of Agency Design, 23.

The author would like to thank Dr. Douglas Craig, Dr. Louis Fisher, and Professor Beryl Radin for their helpful comments on an earlier version of this article and also the United States Studies Centre at the University of Sydney for a research grant that supported this work.

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