When Congress passed the National Environmental Policy Act (NEPA) in 1969, the legislation was acclaimed as one of the most important environmental measures ever enacted. States soon followed the federal lead, so that by 1976 thirty jurisdictions had adopted statutes similar to the national legislation. The Montana legislature was in the vanguard, passing the Montana Environmental Policy Act (MEPA) in 1971.
The federal agencies now appear to have accepted full responsibility for implementation of NEPA, despite some initial reluctance. Several agencies contended at first that the statute did not authorize them to consider in decisionmaking any environmental factors not expressly provided for in the substantive legislation pursuant to which the agency was acting. That interpretation never achieved widespread recognition, much less acceptance, in the federal bureaucracy and was summarily dismissed by the judiciary. Agencies never raise the issue today, and courts simply assume that it has been settled.
Despite the prompt and thorough demise of the notion in the national arena, the theory continues to be espoused in some states. Courts in few jurisdictions have addressed the question, but most have rejected the narrow interpretation of the effect that environmental policy acts have on agency decisionmaking. Montana, however, has been the exception. In 1976, the supreme court of the state appeared to endorse the doctrine; the Montana agencies immediately embraced the court's ruling and extended it. This article is a critical analysis of the Montana interpretations, in light of analogous federal and state law and the Montana Constitution; it yields the conclusion that the views articulated are simply incorrect as a matter of law and policy.
Carl W. Tobias & Daniel N. McLean, Of Crabbed Interpretations and Frustrated Mandates: The Effect of Environmental Policy Acts on Pre-existing Agency Authority, 41 Mont. L. Rev. 177 (1980)