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51 Env't L. [i] (2021)

handle is hein.journals/envlnw51 and id is 1 raw text is: ENVIRONMENTAL LAW Lewis & Clark Law School VOLUME 51 SPRING 2021 NUMBER 1 E D IT O R 'S N O T E .................................................................... i ARTICLES Adm inistrative Bulkheads.............................................................. 1 Kenta Tsuda Administrative agencies routinely predict the effects of their policy decisions. Unsurprisingly, they err, sometimes with catastrophic consequences. The cost of administrative prediction failure has been paid in lives, devastated ecosystems, untold sums of squandered tax dollars, and foregone wealth. As familiar names like Deepwater Horizon, Flint, and Fukushima attest, even in advanced industrialized societies, environmental policy remains a domain in which administrative prediction failure is strongly felt. A crucial task for administrative law is to reduce the toll of such bureaucratic mistakes. One means is an administrative bulkhead rule: a rule that circumscribes administrative power where the costs of prediction failure are greatest. Like collision bulkheads in ships, such rules cabin the downside risk 'of prediction failure. This Article confronts the problem of agency prediction failure and the applicability of a bulkhead rule under one of the United States' most important administrative-environmental laws, the National Environmental Policy Act (NEPA). In passing NEPA, Congress attempted to impose analytical rigor and environmental solicitude on federal policy making. Today however, courts and agencies interpret NEPA to impose no coherent instructions regarding how they are to approach decisions that pose low probability but catastrophic risks to the environment. The prevailing interpretation is wrong. This Article interprets NEPA to provide a bulkhead rule. Surveying the statutory text and the voluminous case law interpreting it, this Article argues the statute's scope and significance thresholds are subject to raised administrative-review requirements where actions have potential non-localized impacts. Uncertainty is treated differently depending on the cost of an agency mistake: where risks are not localized, and can imperil systemically important natural systems, the law demands deeper

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