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To some, applying the National Environmental Policy Act (NEPA) to decisions affecting land use in an urban or built environment is an oxymoron. Cities have historically not been seen “as natural entities but as foreign impositions upon the native landscape,” places where the physical environment is already largely destroyed or reduced to insignificant remnants. Moreover, detecting the required federal presence to trigger NEPA may initially seem difficult when decisions affecting urban resources appear to be principally made by local or state agencies.

At the Institute for Public Representation (IPR) at the Georgetown University Law Center, the author has learned that many kinds of environments, including the built environment, are worthy of protection because of their importance on a local, if not regional or national, level. She also has repeatedly encountered federal agencies that permit or fund activities that threaten these environments. In some cases, such as national parks or monuments, these agencies actually own or manage the threatened resource. Accordingly, the IPR has used NEPA as one of its basic tools to protect the urban environment.

This is not to say that the fit between NEPA and the urban environment is necessarily perfect. Quite the contrary, an urban environment can both test the effectiveness of NEPA and suggest ways in which the Act might be improved. For example, relevant case law demonstrates that finding a sufficiently large federal handle to warrant the application of NEPA to urban land use decisions can be challenging. Despite this federal-presence challenge and other flaws, NEPA adds unique analytical tools to the web of federal laws protecting the urban landscape. These tools are particularly suited to addressing two problems that are plaguing metropolitan areas today: loss of neighborhood viability leading to urban blight and white flight, and the phenomenon of urban sprawl.

The first tool is NEPA’s mandate that federal agencies consider their proposed actions impact on social and cultural resources. This requirement can be used to help assess the extent to which federal projects may lessen the diversity and sustainability of urban neighborhoods by adversely affecting their “social capital,” that complex web of interlocking and mutually supportive networks of social and economic relationships that binds communities together.

The second tool compels proponents of federally authorized or funded projects to consider their proposed actions’ indirect and cumulative impacts. This requirement offers a mechanism for addressing problems raised by urban sprawl. The effectiveness of both of these tools may be limited when an urban land use change appears too small to trigger NEPA’s applicability or seemingly will have only a minor impact on the physical environment. Overcoming these challenges is the focus of this article.

In responding to these challenges, this article first takes a brief look at cities, their positive and negative features, and the importance of vibrant, healthy neighborhoods to good quality urban life. Part I also discusses the phenomenon of urban sprawl and its environmental impacts. Part II examines how government decisions that negatively affect seemingly isolated, small uses of urban land, such as a corner bodega, can ripple out into the greater metropolitan area and lead to economic blight, white flight, and urban sprawl. In addition, part II introduces the concept of social capital and explains why it is a central component of healthy neighborhoods, especially for those that are less financially secure.

Part III turns to NEPA and looks at the statute’s use in the urban environment. This part identifies particular features of NEPA that give city residents, particularly those who live in less financially stable areas, unique tools to resist non-desirable changes to their neighborhoods. The last part of the article shows how the principles of conservation biology and social capital can be combined to translate principally socio-economic impacts from isolated land use changes into large-scale physical impacts. The final part then demonstrates how these physical consequences can be sufficiently magnified to warrant the preparation of an environmental impact statement (EIS). In case this rationale should fail, the article explores informal means of communicating with agencies during the preparation of an environmental assessment (EA) that offer communities another way of influencing neighborhood land use decisions.

Publication Citation

23 J. Envtl. L. & Litig. 1-33 (2008)