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Volume 6, Issue 3 — March 1976


The Impact of NEPA on Public Perception of Environmental Issues

by Robert Cahn

The National Environmental Policy Act (NEPA)1 has been heralded as the greatest piece of legislation in recent history for improving the environment. Some critics, However, believe it is vastly overrated and accomplishes little more than allowing a few lawyers to go to the courts and delay actions needed in the best intersest of the nation as a whole. Between these views lies a balanced appraisal of how NEPA has worked in its first six years. And one of its most impressive accomplishments is the way it has led to greater public perception of environmental issues.

When NEPA first went into operation in early 1970, most attention centered on how the Council on Environmental Quality might influence an Administration that up until then had done very little for the environment. Also, those of us on the Council of Environmental Quality hoped, as had the congressional framers of NEPA, that it would force the executive agencies to build environmental concerns into decision making at and early point, although no one had any great expectation that this would happen overnight.

The Scientific Basis of NEPA—Is It Adequate?

by Richard A. Carpenter

It is the thesis of this Article that the ultimate success of the National Environmental Policy Act (NEPA) is strongly dependent upon reasonably complete and timely scientific information. Implementation of NEPA requires scientific descriptions of environmental quality and productivity, and the essence of the environmental impact statement (EIS) is a capability to anticipate the environmental consequences of a proposed action. Prediction of ecosystem behavior includes both degradation from technological change and recovery or improvement due to pollution abatement.

The state of knowledge in environmental sciences fundamental to NEPA is unsatisfactory compared to the magnitude of the management decisions being made and the values at stake. The uncertainties of descriptions and predictions in ecosystem analysis are greater than in other natural sciences but the expectations of legislators and administrators for complete, unambiguous, and verified information remain high. Some strategies are developing for optimizing decision making in the face of uncertainty and these can be useful in implementing NEPA.

The National Environmental Policy Act: Retrospect and Prospect

by Lynton K. Caldwell

The National Environmental Policy Act (NEPA) is a declaration of national policy intent, reflecting a reorientation of priorities to accord with changing environmental values and perceptions. It does not amend the Constitution; it is not a regulation; and it cannot compel the president to administer its principles and provisions in any particular way: Nor can it cause the Congress to activate more fully its potentialities through supplementary legislation and more generous funding.

But although NEPA cannot mandate the policy it declares, it has nevertheless changed public life in four important respects. First, through its declaratory provisions and annual environmental report, it has kept the environmental issue before the American people, the Congress, and the president; second, through the environmental impact statement requirement and associated stipulations regarding program planning, it has altered the decision process in the federal agencies; third, in association with the Freedom of Information Act, it has forced public disclosure of that process and opened the way to public participation in it; and fourth, it has provided a model that has influenced environmental policy legislation among the several states and in a number of nations abroad.2

NEPA in Practice: Environmental Policy or Administrative Reform?

by Richard N.L. Andrews

The purpose of the National Environmental Policy Act, in the words of the Senate Committee Report on it, was to establish a "clear statement of the values and goals which we seek . . . a set of resource management values which are in the long-range public interest and which merit the support of all social institutions . . . in short, a national environmental policy."1 The report argued that such a policy was necessary, in view of the accelerating spread of pollution, crowding, and other forms of environmental degradation; that it was an unavoidable responsibility of the Congress, since "only there could competing political interests be adequately represented and accomodated;"2 and that it must be implemented within the activities of all agencies of the federal government, since "environmental programs are presently administered by 63 Federal agencies located within 10 of the 13 departments as well as 16 independent agencies of the executive branch."3

The National Environmental Policy Act and Agency Policymaking: Neither Paper Tiger Nor Straitjacket

by Frederick R. Anderson, Richard A. Liroff, and Alan S. Miller

I. Introduction

The National Environmental Policy Act, if the legislative history which Congress left behind is to be believed, was aimed at the jugular of federal policymaking. The Act sought to alter the very personality of government; the national environmental policy was supposed to permeate every other policy pursued by government. Thus, Congress sought much more than the modification of specific multi-million-dollar construction projects. The objective was profound and lasting policy changes through the introduction of environmental considerations to the earliest and highest levels of agency decisionmaking. The key device to achieve these reforms is the now well-known impact statement process.

Until recently, agency officials and environmental litigants have used impact statements to concentrate almost solely on the details of specific projects and localized impacts, as opposed to programs and policies.1 Highway projects have been challenged in numerous cases, but the highway program has not been evaluated in any meaningful way. The impact of specific coal mines has been discussed ad nauseum, but the broader issues raised by coal leasing policy have not been seriously evaluated.2 Integrating environmental values into agency programs and policymaking poses numerous practical problems; the nature of bureaucracies is to resist radical change. Policy analysis must therefore be anti-bureaucratic or, as seems more likely, directed toward incremental change.3 Pressure for widening agency horizons must be supplied by forces outside the agency, by the public through the courts. But judicial review can only indirectly confront the substance of agency policies because of the traditional judicial concern for avoiding interference with the discretionary or political functions of executive agencies.


Agency Funding of Indigent Public Interest Intervenors in Administrative Proceedings

Students of the administrative process generally agree that all interested and affected persons should have an opportunity to participate in agency decision making.1 Full participation is thought to serve the public interest because it achieves thorough exposition and consideration of information relevant to a particular rulemaking or adjudication; in short, it is thought to contribute to a better-informed, and, therefore, wiser decision. In addition, it serves to enhance public confidence in the legitimacy of the final result and thus to lessen the number of after-the-fact judicial challenges to agency actions.

In recent years, the correlative judicial expansion of the law of standing has removed one traditional barrier to broadened public participation in administrative proceedings.2 But some would-be intervenors have often been unable to put into practice their theoretical right to participate in agency proceedings, particularly in cases where the administrative result sought promises no direct economic benefit. The financial circumstances of many would-be intervenors are precarious, and the expense of such participation is in many instances quite simply beyond their means. While the high cost of a protracted court suit is generally recognized, it is not commonly appreciated that the cost to an intervenor of full participation in an administrative proceeding may be just as great. Attorney's fees may run over $100,000 in complicated agency proceedings, and the expenses of expert witnesses in such cases can easily reach $40,000 or $50,000.3 A growing number of observers have thus come to believe that

if the quality of administrative decisionmaking depends upon the participation of interested groups, assistance for those groups unable to command sufficient resources may be necessary.4

Federal Toxics Controls: The Patchwork Attack on PCBs

PCBs (polychlorinated biphenyls) have made a comeback. First brought to international attention in the late 1960s by outbreaks of "Yusho disease"1 in Japan and by discovery of trace concentrations in United States' fish, wildlife, food, food packaging, and human tissue,2 these synthetic industrial-electrical compounds were thought to have been brought under domestic control in 1972. At that time, Monsanto Corporation, the sole United States manufacturer, voluntarily restricted sales to "closed" uses such as electrical transformers and capacitors.

As if to underscore their remarkable persistence in the environment, and to demonstrate their propensity for biomagnification in the food chain, PCBs have once again begun to appear in dangerous concentrations in fish in major American waterways, including the Great Lakes and the Hudson, Ohio, Mississippi, Missouri, Columbia, Sacramento, Rio Grande, and Yukon Rivers.3 This persistence, due to a remarkable chemical and physical stability, not only accounts for the ubiquity of PCBs, but also explains their usefulness in electrical and heat-transfer applications, where they are prized for their nonflammability and constant dielectric properties. Most important, the longevity of PCBs serves to highlight the shortcomings of current federal government approaches to regulating toxic substances.

Section 309 of the Clean Air Act Revisited: EPA Makes Second Referral of "Environmentally Unsatisfactory" Federal Proposal to CEQ

Section 309,1 a little-known but broad-ranging provision of the Clean Air Act of 1970, empowers the EPA Administrator to review and comment upon all environmental impact statements prepared by other federal agencies. In addition, the section provides a "referral" mechanism by which the Administrator can apply leverage against the sponsoring agency to have an environmentally harmful project modified or dropped altogether.

EPA has seen fit to make use of this referral authority only twice. The first instance concerned the prospect of unacceptable thermal discharges from a planned nuclear power plant.2 The more recent exercise3 of the agency's referral power was directed at the Department of Interior's proposal, as part of its program to accelerate oil and gas production from the Outer Continental Shelf, to lease areas under the Northern Gulf of Alaska for oil gas drilling. This second referral provides a useful illustration of the inherent strengths and weaknesses of §309(b).

Seventh Circuit Overturns Injunction for Lack of Imminent Health Hazard

The courts generally do not favor private nuisance actions for air pollution; the dire prospect of shutting down a polluting industry usually prevails over individual plaintiffs' comparatively insubstantial environmental rights. Often, however, the court's task of balancing the partics' relative equities is eased by defendant's transigence, e.g., where it neither seeks to alleviate the complainants' suffering nor to perform functions that are particularly vital to the economic health of society.

The usual pattern was turned on its head in a recent case in which the Seventh Circuit Court of Appeals was asked to affirm the closing as a nuisance of a noisy, dusty, vibration-causing automobile shredding and recycling plant in Indianapolis. Automobile shredders are enormous machines which tear junked cars into fist-sized hunks of metal, glass and cloth, which can be sold as scrap and conveniently recycled. Thus, auto shredders help to lessen the waste of materials perpetrated by the automobile's planned obsolescence. Moreover, this particular auto shredding firm had clearly tried to mitigate the damage which it caused to its neighbors.