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Volume 3, Issue 8 — August 1973


The Council on Environmental Quality

by Richard Liroff

On January 1, 1970, the Council on Environmental Quality came into existence with the passage of the National Environmental Policy Act.1 The CEQ was to serve as the guardian of environmental concerns within the Executive Branch. It was given the functions of advising the president, monitoring other agencies' compliance with NEPA, and providing information to the public on environmental matters.2

Today, CEQ stands at a critical juncture in its three-and-one-half-year history. The next few months will tell whether it will emerge from massive staff turnovers and hostile review by the Office of Management and Budget as a strengthened and seasoned entity, or whether it will suffer funding cutbacks and a diminution of influence over the Administrion's environmental policies. With CEQ at this crossroads, an assessment of its effectiveness during its first phase is definitely appropriate.

The Environmental Protection Agency's Duty to Oversee NEPA's Implementation: Section 309 of the Clean Air Act

by Martin Healy

Section 309 of the Clean Air Act1 makes the Environmental Protection Agency full partner of the Council on Environmental Quality in the task of overseeing implementation of the National Environmental Policy Act.2 Congress gave EPA responsibilities complementary to those of CEQ so that both agencies could accomplish together what each alone would be unable to do. Section 309 lays the groundwork for a formidable administrative team fully capable of ensuring compliance with NEPA in government decisionmaking. To the chagrin of environmentalists, however, EPA has been reluctant to perform certain of its responsibilities under §309.3 This Article discusses the duties assigned to EPA under §309, and the steps EPA has taken to fulfill them. In conclusion, the Article suggests that a lawsuit may be the appropriate means of compelling EPA to meet all its §309 responsibilities, so that the complementary strengths of EPA and CEQ may be brought fully to bear on agency decisionmaking under NEPA.

NEPA's proclaimed goal is to attain "harmony between man and his environment."4 Congress sought to achieve this end by reforming government decisionmaking.5 Section 102(2)(C) of NEPA requires all federal agencies embarking upon major actions significantly affecting the quality of the human environment to (1) consult with and obtain comments from any federal agency with jurisdiction by law or special expertise with respect to the environmental impact involved, and (2) prepare a detailed environmental impact statement to be made available to the public together with comments obtained from other agencies. These procedural requirements are designed to shape federal decisionmaking in two ways. First, interagency consultation prior to federal action should reduce agency "tunnel vision" and foster consideration and balancing of a wide range of goals, with emphasis on preserving and enhancing environmental quality. Second, placing affirmative burden on the acting agency to prepare written statements explaining a proposal's environmental effects should create a reviewable record, allowing administrative decisions to be scrutinized both at higher levels within the executive branch and by the public. NEPA places responsibility for executing these procedural and substantive reforms on each individual agency. Thus, there is no way to know whether NEPA's mandates are being met in a particular action except by a thorough review of the decisionmaking process behind that action. The Council on Environmental Quality6 has assumed, among its other responsibilities, the task of monitoring other federal agencies' procedural compliance with NEPA.7

The Settlement Agreement in National Wildlife Federation v. Tiemann

by Robert M. Kennan Jr.

On July 23, 1973, a consent judgment was entered against the defendants in a lawsuit in Washington, D.C., titled National Wildlife Federation v. Tiemann.1 This Article explains the terms of a settlement agreement included in the consent judgment and suggests ways in which citizens concerned about ongoing construction of the federal-aid highways affected by the settlement agreement may take advantage of it.

NEPA's Progeny: State Environmental Policy Acts

by Nicholas C. Yost

The comment is often made that the states are experimental laboratories for environmental legislation.1 In the instance of the National Environmental Policy Act of 1969, the opposite has been the case. The federal government has served as an experimental laboratory for the various states. The experiment has proven successful, and that states are now adopting their own "little NEPAs." It is the purpose of this Article to summarize the state provisions.

Seventeen jurisdictions have followed the federal lead.2 Ten states and Puerto Rico have legislatively adopted little NEPAs of general application,3 two states have legislatively adopted little NEPAs of limited application,4 and four states have administratively promulgated NEPA equivalents.5

NEPA and Federal Decisionmaking

by Frederick R. Anderson

Over the past three years, the courts have had many opportunities to interpret NEPA. The Act has been involved in 149 separate litigations, some of which have produced several opinions. Yet, Chapters IV, V, and VI abundantly confirm that the bulk of these interpretations focuses on the one short action-forcing provision set out in §102(2) (C). As important as that section is, its role is nevertheless an essentially subservient one. An archive of disregarded assessments that bring about no real improvement in federal decisionmaking might satisfy §102(2) (C), but would fail NEPA as a whole. Aware of this possibility, the courts have endorsed a wider judicial role in ensuring that final agency decisionmaking actually reflects NEPA's substantive policy.

In addition to interpreting the information and disclosure requirements of §102(2) (C), the courts have spelled out how that information must be "considered" by the agency in making its final decision. The use to which environmental information is put in decisionmaking is fully reviewable, and the impact statement plays an important role as part of the reviewable record of consideration. Furthermore, several courts have held that courts may review agency decisions to determine if they are in accord with NEPA's substantive policy.


Federal Environmental Units in Transition: Articles Assess CEQ and EPA

Less than four years after its creation, the Council on Environmental Quality stands at a crossroads. Several officials have left the Council, including Chairman Russell Train, who has been nominated to head the Environmental Protection Agency. The Office of Management and Budget has stepped up an attack that if successful will strip CEQ of much of its power and responsibility. At the same time, Congress has moved to exempt the Alaskan Pipeline from NEPA, a damaging blow to the statute that is the legal underpinning of the environmental movement and that established CEQ. Clearly, more than the power and prestige of CEQ is at stake; at issue is whether the national commitment to preservation and reclamation of the environment will be strengthened or eroded.

This month's ELR includes two articles that explore the ways in which the two governmental units primarily responsible for protecting the environment, CEQ and EPA, have discharged the NEPA duties assigned to them by Congress.In the first, Richard Liroff, formerly a research fellow at the Brookings Institution, reviews and analyzes the development of CEQ from its inception to the present. In the second, Martin Healy examines EPA's implementation of §309 of the Clean Air Act, which gives that Agency responsibilities for overseeing governmental compliance with NEPA that complement those of CEQ. These timely articles hint at the directions in which governmental efforts for environmental protection may now turn. The current challenge to CEQ may be withstood; on the other hand, a serious curtailment of the Council's functions may portend a marked increase in EPA's responsibilities as environmental ombudsman in general and guardian of NEPA in particular. The CEQ functions that Mr. Liroff describes may well pass in part to EPA. The medium of this transfer, as Mr. Healy suggests, could be §309.

CEQ Issues Revised NEPA Guidelines

The Council on Environmental Quality published final guidelines for the preparation of environmental impact statements in the Federal Register on August 1, 1973.1 These guidelines are reprinted in ELR at 46003, and are codified in the Code of Federal Regulations, Title 40, Chapter V, Part 1500. All federal agencies and departments are required to prepare their own NEPA procedures in accordance with these guidelines within 180 days.

ELR subscribers were sent copies of the draft guidelines in the April mailing and were informed of the highlights of the proposed revisions in the May issue.2 It has been the policy and practice of ELR to publish all available agency NEPA procedures and guidelines since the commencement of the Act's implementation. The complete listing, now in the Table of Contents to the Statutory and Administrative Materials tabular section, will be revised as the agencies take steps to put the new guidelines into effect.

FHwA Agrees to Change NEPA Exemption Procedures: Article Describes Next Steps for Environmentalists

A comment in last month's ELR1 described three suits filed by the National Wildlife Federation seeking to reform Federal Highway Administration procedures. That comment suggested that FHwA might want to settle these suits, which challenged FHwA's practice of exempting from NEPA requirements federal-aid highway construction projects that received design approval before February 1, 1971. As it turns out, in the meantime, a consent judgment has been approved and appears in the Litigation section of this month's ELR.2

Under the terms of the settlement, FHwA will not, after January 1, 1974, authorize advertisements for bid or right-of-way acquisition (except in exceptional hardship circumstances) for projects that are major federal actions significantly affecting the environment until a sufficient environmental impact statement has been filed. In the interim period before January 1, the FHwA division engineers will be responsible for evaluating whether environmental impact statements should be prepared for specific highway sections. Each state highway administration will be required to publish a list of proposed highway sections, the criteria for NEPA reassessment, and an invitation for comments. The FHwA will also publish a list of projects and its case-by-case determination of whether an environmental impact statement is required.

Article Analyzes State NEPAs

In an article in this month's ELR,1 Nicholas C. Yost, Deputy Attorney General in charge of the Environmental Unit of the California Attorney General's office, reviews and analyzes state enactments parallelling NEPA. NEPA, he observes, reversed the pattern by which innovative ideas for environmental legislation are first adopted at the state level and later incorporated into federal law. Here, a novel federal law fathered equivalents in 18 jurisdictions, in most cases by legislation, but in a few states by administrative action.

Mr. Yost examines in detail first the declared policy and goals of the states' "little NEPAs" and the extent to which the obligation to follow the state's environmental policy is made binding on state agencies and officials. Next, he analyzes the environmental impact statements that all state NEPAs require, examining their elements and scope. In some states, for example, an EIS is required for the activities of local governments as well as state agencies; in others, local governments are exempted. States also vary in the type of state agency action for which an EIS is required: a permit to a private developer to conduct environmentally harmful actions on privately owned land would necessitate an EIS in some states, but not in others. The author then studies state equivalents of the NEPA requirement that responsible federal officials consult with and obtain the comments of any agency with special responsibilities or expertise on the particular issue.

"NEPA and Federal Decisionmaking": Reprint of Chapter From NEPA in the Courts

This month's issue of ELR contains a reprint of a chapter from NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act of 1969.1 The study, which is the first book-length analysis of NEPA, was written by Frederick R. Anderson, ELR's editor-in-chief and Executive Director of the Environmental Law Institute. NEPA in the Courts examines the judicial interpretations of NEPA to date. It draws its structure from the issues raised in litigation, including the role of reviewing courts, the scope of NEPA's applicability to federal agencies and categories of programs, the quality of agency procedural compliance, access to information, and NEPA's substantive obligations. Legal issues that have arisen in connection with the courts' interpretations of §102(2)(c), the impact statement requirement, receive detailed analysis.

Because of the wide reach of the Act's mandate, legal issues raised primarily by citizens groups have given the courts a major role in shaping NEPA's meaning. The book brings these cases together in delineating the contours and boundaries of the Act. In introducing NEPA in the Courts, Joseph L. Fisher, President of Resources for the Future, said: