By Greta Raser | Editor in Chief

December 5, 2023

— 

State laws are important tools in a federalist system. They can serve as experiments for more advanced and ambitious policies than those existing at the federal level. This famous sentiment was expressed by Justice Brandeis who stated, “It is one of the happy incidents of the federal system that a single courageous state may . . . serve as a laboratory; and try novel social and economic experiences without risk to the rest of the country.”^[1] Today, this sentiment may be used to recognize the ability of states to take initiative on pertinent societal issues instead of waiting for the federal government to act. In a time where there are increasingly pressing environmental issues, the restraints on federal power make the use of state law more important.^[2] This may be an important avenue to address novel environmental issues that are not adequately addressed by the National Environmental Policy Act (NEPA), which functions as merely procedural.

            Various states have developed their own versions of NEPA.[3] Fifteen states and the District of Columbia have these little-NEPAs,[4] also referred to as State Environmental Policy Acts (SEPAs).[5] Some of these state acts are nearly identical to NEPA, and others share many similarities.[6] While the state jurisprudence oftentimes follows the federal NEPA jurisprudence, some states have diverged further in their case law.[7] In doing so, certain states have enhanced their SEPA requirements.

            SEPAs can include substantive requirements with language that can be interpreted to address a broader variety of environmental issues than NEPA. Certain states, including California, Massachusetts, Minnesota, New York, and Washington, have substantive requirements in their state environmental policy acts.[8] These allow states to require that projects address the environmental impacts discovered while gathering information through the procedural side of the statutes. This pushes action to address the harms that industries are creating in communities. Substantive requirements give environmental statutes teeth. The teeth allow the statutes to fulfill their goals of addressing environmental harms. Enacting these types of statutes at the state level may be more feasible in modern times than aiming to alter NEPA.[9]

            SEPAs also have room to vary from other states’ policies through relying on localized knowledge and addressing state-specific issues.^[10] These policies may apply to a wider range of industries and may subject state and local activities to environmental review, as opposed to just “major federal actions,” which is all that NEPA covers.[11] Finally, states may expand on the Environmental Impact Statement requirements to require the reviewers to address specific issues.

State powers allow states to craft various new policies that may be indicative of the future changes that existing laws need. States may fill in NEPA’s gaps by increasing SEPAs’ responsiveness to issues like environmental justice, climate change, animal welfare, and industrial farming pollution in human communities. One may view these policies as working supplementally with NEPA because they may operate to address more than just procedural issues. The more innovative and inclusive SEPAs serve as models of what improvement is needed in other states’ SEPAs to address continuous environmental damage. Having states with more stringent environmental policy acts allows governments to experiment with new policy requirements and applications on a smaller level than the national level. As industries become more pressured to switch to fewer polluting alternatives, state policies like this can serve as a model for other states and eventually the federal government to adopt more stringent amendments to NEPA.

            Due to the federal legislative gap in addressing environmental justice, climate change, industrialized agriculture, and animal harm, SEPAs may be an option to provide stronger oversight on these heavily protected systems. States and local governments are more politically accountable to their residents. They are more knowledgeable of the dire state-specific environmental issues and how their communities are harmed by industries. The difficulty that exists when trying to pass strong federal environmental protections demands that the states become leaders and experiment with their State Environmental Policy Acts.

 

[1] New State Ice Co. v, Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

[2] See, e.g., Lawrence Hurley & Valerie Volcovici, U.S. Supreme Court limits federal power to curb carbon emissions, Reuters (June 30, 2022), https://www.reuters.com/legal/government/us-supreme-court-limits-federal-power-curb-carbon-emissions-2022-06-30/ (highlighting that the Supreme Court’s decision in West Virginia v. EPA signals the Court’s aversion toward federal executive agency power and that the decision limits the federal power to address climate change through ambitious national policy); Chris Henry, A Succinct, Holistic Look at Climate Change Legislation, 39 S. Ill. U. L. J. 231, 234 (2015) (noting that many attempts at passing federal climate legislation and regulations have not been successful).

[3] Daniel R. Mandelker et al., Generally, NEPA Law and Litigation § 12.1 (2022).

[4] Id.; The states with state environmental policy acts are: California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, Virginia, Washington, Wisconsin. New Jersey has an executive order that functions equivalently to a State Environmental Policy Act. State environmental policy acts, Ballotpedia, https://ballotpedia.org/State_environmental_policy_acts#New_Jersey (last visited Dec. 3, 2023).

[5] Not all of the states with environmental policy acts refer to them as SEPA, but this blog will do so to avoid confusion.

[6] Mandelker et al., supra note 3, § 12.1.

[7] Id.

[8] Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 619 (2001).

[9] As previously stated, federal powers are limited. Changing an act at the federal level may pose more controversy than state legislatures acting.

[10] States may have different land-use laws, a variety of terrains for farming, and distinct ecosystems that may support different animals than other states.

[11] See 42 U.S.C. § 4332.