Administrative Procedure Act

Wary of New Deal-era government expansion, and after costly brushes with fascism under Nazi Germany and Imperial Japan, in 1946 Congress passed the Administrative Procedure Act to protect United States citizens from abuses by federal agencies.

As President Roosevelt had observed during the decade-long process of negotiating the APA, to entrust federal agencies with legislative, executive, and judicial powers was also to risk corrupting these powers, and “to develop a fourth branch of government for which there is no sanction in the Constitution.”

The Administrative Procedure Act authorizes and standardizes the procedures of 55 federal agencies responsible for implementing and enforcing federal laws. A manual for governance, APA requires transparency in agency rulemaking, opportunity for citizen participation, and protection of individual privacy.

Further buttressing the foundation of American civil rights, these among many provisions of the Administrative Procedure Act require that:

• Agencies shall “give interested persons an opportunity to participate in the rule making…”
• Agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized.”
• Agencies shall “establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records…”
• Whenever any agency fails to comply…in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency…”
• A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel…”

Under authority of Section 102 of the 2005 REAL ID Act, The Administrative Procedure Act is now waived by the Department of Homeland Security for border wall construction.

Nat Stone

National Environmental Policy Act

Proposed by Washington Senator Henry Jackson, the National Environmental Policy Act resulted from growing ecological concern through the 1950s and 1960s.

Smog had caused car accidents in Los Angeles. DDT had entered soil and water, endangering entire species including the American Bald Eagle. Industrial waste burning in the Cayuhoga River had blazed Cleveland’s waterfront.

Without the guidance of environmental standards, federal projects often had conflicted, as in Florida, where the Department of Interior had pursued Everglades preservation near where the Department of Transportation lobbied for an airport. Furthermore, planning for agency projects required little analysis of predictable adverse consequences, and provided few opportunities for public participation.

This became evident when Interstate Highway construction sparked dissent as it threatened neighborhoods coast to coast. Calling for a moratorium in Hartford, historian Lewis Mumford lamented that research for the Federal-Aid Highway Act of 1956, “jammed through Congress so blithely and lightly,” had not involved “study of the real problems.”

In Boston, where neighborhoods had been razed with little notice for a 12 lane Southwest Expressway, citizens protested what they dubbed the “Chinese Wall,” and stalled its construction.

Reflecting Aldo Leopold’s view of the world as “one humming community of cooperations and competitions,” and President Kennedy’s notice of “Americans seizing, using, squandering and belatedly protecting their natural heritage,” the National Environmental Policy Act was signed by President Nixon in 1970 to “prevent or eliminate damage to the environment and biosphere.”

NEPA codified environmental policies for federal agencies, and required Environmental Impact Statements — including consideration of alternatives and “No Action” — for projects likely to cause ecological or cultural harm. Though unpopular with many industrialists, and weak-kneed to many conservationists, NEPA was revolutionary for recognizing that natural resource protection yields both cultural and economic benefits.

Comprehensive compliance with the National Environmental Policy Act for border barrier construction would have required a San Diego-to-Brownsville Environmental Impact Statement, along with site-specific assessments for particular actions in discrete ecosystems along the border.

Despite adverse impacts anticipated by DHS, and protests from border residents that echo Mr. Mumford’s lament, all National Environmental Policy Act requirements are now waived.

Nat Stone