Addition by subtraction NEPA routines as means to more systemic ends

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This volume on ecosystem management and law seems a good place for some thoughts on the National Environmental Policy Act (NEPA), "our basic national charter for protection of the environment."1 NEPA is famously regarded in court as a 'procedural' statute, a statute that aims not for particular environmental outcomes but rather at the deliberative processes whereby federal agencies make their decisions which then impact the environment. 2 NEPA requires that "all agencies of the Federal Government . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment a detailed statement by the responsible official,"3 which predicts the environmental impact of the proposed action, any unavoidable adverse environmental impacts should the action be taken, alternatives to the proposed action, and other information useful in deciding whether the reasons for the proposal outweigh or otherwise defeat the reasons against it. Since 1978, when NEPA's Council on Environmental Quality (CEQ ) finalized its 'regulations' implementing Section 102(2),5 covered federal agencies have had to divide their NEPA practices into one of several discrete action-types that are oriented around this 'detailed statement' requirement.6 Indeed, these NEPA categories have, in the intervening decades, hardened to become the principal content of NEPA law-the set of obligatory routines into which all covered agency 'actions' must fit and with which they must comply. It is these compli ance-oriented routines that we must better structure if we are to have any hope of shaping NEPA into a selection of tools that we so desperately need to better manage the natural systems we depend upon. For reasons that will become clear, I argue that CEQ seems to be moving NEPA in the right direction, but that it is not doing so quickly or decisively enough. In this chapter, I parse our established NEPA categories, some of the many precedents construing CEQ's rules, some of the hard choices administrators face in NEPA compliance, and the practical differences therein, all in an effort to suggest some modest reforms that could make NEPA more of an aid and less of an obstacle to the ecosystemic management of natural systems. Part I introduces the NEPA action types and the precedents construing their boundaries. Part II sketches the major issues that permeate NEPA practice today, regardless of the action-type which the agency has chosen (or is ordered) to take. Part III proposes a more causation- and less compliance-oriented interpretation of NEPA, an interpretation of NEPA itself as a system with multiple interacting layers and processes that can be managed, but only by the shrewdest and ablest of managers. A serviceable model of NEPA as a system, and one particularly tailored to reworking NEPA as our emerging ecological consciousness would have it, is that of a 'joint cognitive system.' The focus of cognitive systems engineering is the ways in which humans can cope with and master the complexity of their environments. 9 Joint cognitive systems are those that cope with the self-reinforcing complexity of those environments by combining humans and machines into unified, adaptive systems.10 They aim to achieve 'macrocognition' by combining the best of humanity and the machines they invent into the building blocks of extended, complementary, and effective networks of functionality.9 Intentionally engineering such systems is massively complicated and prone to error, because the design challenges involved can lead to compounding the environmental complexity instead of reducing it. The first step is to recognize the elements of this system and their relationships. That is the task of Parts I and II.

Original languageEnglish (US)
Title of host publicationThe Laws of Nature
Subtitle of host publicationReflections on the Evolution of Ecosystem Management Law and Policy
PublisherUniversity of Akron Press
Number of pages39
ISBN (Electronic)9781937378271
ISBN (Print)9781935603634
StatePublished - 2013

All Science Journal Classification (ASJC) codes

  • General Social Sciences


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