Injunctions for NEPA Violations: Balancing the Equities

The National Environmental Policy Act of 1969 (NEPA) reads like no other environmental statute. Its language is lofty and aspirational. Section 101 proclaims a national environmental policy "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."' It declares that the federal government has a "continuing responsibility" to act as trustee for future generations, and to "assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings." 2 NEPA's actual requirements, however, are significantly less grand. The heart of NEPA's scheme, § 102, requires that federal agencies analyze the environmental effects of all major actions in a detailed environmental impact statement (EIS). NEPA has detailed paperwork requirements but no specific substantive requirements. Once the agency completes the EIS process, it may proceed with any course of action, environmentally harmful or not. This gap between the vague, aspirational goals of § 101 and the EIS paper process of § 102 has left courts with a difficult remedial problem. What should they do when a federal agency fails to follow the prescribed procedures? Specifically, how should a court decide whether to enjoin a federal project when the agency has not thoroughly considered the project's environmental effects as NEPA requires? An example will illustrate the problem. Imagine that the U.S. Army Corps of Engineers is planning to install a new electricity generating system at a dam. The system would use a new technique, pumped storage, that involves the pumping of water upstream during peak demand periods. The Corps has already pre-