NEPA Downtown

How much of the "human environment" is urban?

Early in NEPA’s development many of its formative judicial precedents involved the making and remaking of our contemporary urban environments: major “urban renewal” projects, major urban destruction (highway) projects, etc.  Not so much anymore.  What has this done to the statute — and to our urban environments?

For example, a common understanding of NEPA’s basic routines is that they fall into a sort of hierarchy of project or decision intensity, scope, etc.  The little categorical exclusion (CATX) is for projects utterly unlike those that merit a full-dress environmental impact statement (EIS).

But urban design decisions–like building a light rail line, converting one into an urban park, or expanding a highway–defy such hierarchies. What might seem like a “small” project at one stage (and thus meriting an environmental assessment and finding of no significant impact (EA/FONSI)) can easily become a much bigger project.  In terms of effects on “the environment,” urban design and alterations are highly unpredictable.  As people and capital around it begin to respond, a project of seemingly modest ambitions can take off.  The natural environment is like this, too, but not as often will its interactivity be as visible to untrained eyes.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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