page_64 < previous page page_64 next page > Page 64 informed the issuing agency in writing. States such as Utah, Tennessee, and Wyoming have laws that are silent about remedies in court. It is argued that courts will respond to challenges under takings assessment laws in the same way they responded to NEPA lawsuits ("Recent Legislation" 1994). Today, private parties are less likely to convince courts to review takings assessments than they were in the 1970s, in the early NEPA cases. More conservative than the judiciary of the 1970s, today's judges are unlikely to take a hard look at agency action. Moreover, the executive order, as the model for these laws, offers judges a precedent to avoid review. The lack of accountability in the case of the executive order has produced expected results. Roger Marzulla, the assistant U.S. attorney general who drafted the executive order, laments that "executive agencies have utterly ignored the Executive Order" (U.S. House 1995, p. 60).8 Supervision by another executive agency has not proved to be an adequate substitute for the courts. Unlike courts, the executive branch is immersed in politics. In passing on an agency decision, executive agencies are not confined to a review simply for adherence to analytic standards or to exercise the independent judgment of courts. There are exceptions to this lack of accountability, most prominently in Texas, which requires publication of assessments before proposed actions go into effect and which sanctions citizen lawsuits to invalidate government actions implemented without a takings assessment. But these few strands of accountability do not duplicate NEPA's comprehensive structure, which was designed to inform and improve decision-making. Instead they appear to function as checks on government's authority to regulate. Degree of Burden NEPA distinguishes significant from insignificant actions. Without such a screening process, agencies must divert organizational resources needed to maintain the quality of their work and risk demoralizing staff who are assigned to analyze trivial matters (Taylor 1984). The law requires agencies to engage in this process only for "major Federal actions significantly affecting the quality of the human environment." Agencies are given considerable leeway to decide which proposed actions have a "significant" effect on the environment,9 although Congress has stepped in from time to time to exempt certain actions as "insignificant" (Rodgers 1990). Agencies have faced very manageable costs related to implementing 8. A more objective source, the Congressional Daily, also reported that Executive Order 12,630 "has gone mostly unused" (Marzulla 1995, p. 630). 9.Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029 (2d Cir. 1983). Â < previous page page_64 next page >