The Department of War’s New NEPA Frontier
Open Access DepositedStrategic Autonomy
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AbstractStrategic Autonomy
The Department of War’s New NEPA Frontier The National Environmental Policy Act (NEPA) underwent a “soft reset” which coincides with the Department of War’s (DoW) evolving competition with near-peer adversaries and the need for rapid advancement. With the rescission of the 1978 Council of Environmental Quality regulations and the Supreme Court’s decisions in Loper Bright Enterprises v. Raimondo and Seven County Infrastructure Coalition v. Eagle County, the DoW has moved from a state of judicial oversight in NEPA implementation to operational autonomy. This paper seeks to analyze this new legal landscape by first applying a diagnostic filter to determine which NEPA cases hold precedential value. This filter is applied in this paper to cases around public participation, segmentation, and cumulative impacts analysis. The new legal landscape which vastly expands agency discretion also creates a new affirmative duty for the DoW to act responsibly within its discretion. As such, this paper uses the analysis of the current legal landscape to provide considerations and a forward-looking blueprint for NEPA implementing procedures, including consideration of a value-based system- akin to military core values- to prevent abuse of authority and maintain public legitimacy. Furthermore, the DoW should take advantage of new opportunities to further develop concepts that were locked in system inertia, such as employing precise scientific models from environmental science to replace more nebulous legal concepts of causation. In any case, success for the DoW’s NEPA implementing procedures looks like an enduring, efficient system of environmental review that survives the pendulum shifting of NEPA priorities.
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