William & Mary Law Review


Clay F. Kulesza


The environment is susceptible to human harms because it lacks a voice of its own. Yet environmentalists have used their voices for generations to promote environmental protection, causing Congress to pass a variety of laws that prevent needless environmental destruction. The National Environmental Policy Act of 1969 (NEPA) advances this goal by directing the federal government to undergo an environmental review process anytime it wants to begin a project that could have detrimental environmental impacts. This process ensures that the federal government knows how a project will impact the environment and whether any feasible alternatives to a project may have less of an impact on the environment.

However, problems can arise when state agencies circumvent NEPA and interfere with the mandated environmental review to reach a result that ultimately benefits the state but harms the environment. Such was the case in Minnesota in July 2014. While the federal government was studying the impacts of a proposed railroad that would cut through an environmentally sensitive area, the Minnesota state government began making deals with cities in the region concerning the path of the tracks. The federal agency in charge of the project could have chosen a different route for the tracks—one that either did not cut through the protected area or that included efforts to minimize the environmental damage—but the state agency’s actions essentially ensured the tracks would be laid in the exact way the state wanted.

A local environmental group attempted to enjoin the agencies from deviating from NEPA’s strict guidelines, but the Court of Appeals for the Eighth Circuit held that the statute did not permit the group to bring a private cause of action against state officials. The case was dismissed, and the court neither reprimanded the state for interfering with the federal government’s planning efforts nor prevented the state from interfering further in future projects.

This problem is not unique to environmental groups in Minnesota. The way in which Congress wrote NEPA has caused citizen groups around the country to confront this same issue. This Note contends that Congress should amend the National Environmental Policy Act of 1969 to include a specific “citizen suit” provision that would authorize concerned individuals and environmental groups to bring private causes of action against state actors and agencies to prohibit states from unduly interfering with NEPA’s environmental review process.

Part I explains how NEPA currently functions and how environmental groups can allege violations of the statute in federal court. Part II explores a particular flaw in NEPA’s application and examines the current circuit court split concerning different interpretations of the statute. Building upon this foundation, Part III proposes that Congress should amend NEPA to include a citizen suit provision, thus resolving the circuit court split and providing federal courts with some much-needed clarity on the scope of NEPA’s application to state actors. Part IV addresses potential counterarguments before concluding that the proposed citizen suit provision will best protect against environmental harms.