A question that has begun to appear with increasing frequency in recent NEPA litigation concerns the environmental damage that a private or state party may cause in the early, "pre-federal" stages of a project before it becomes a "major federal action" and an impact statement must be prepared. This is another of the second-generation NEPA issues that have come to the fore as the battle lines between environmental plaintiffs and nonfederal developers have been drawn. Thus far, the courts that have dealt with this question have provided minimal guidelines as to when, in order to preserve the environmental status quo, private parties may be enjoined from preparatory work, but these standards remain too vague for either environmentalists or developers to form clear expectations of what is enjoinable conduct.

This state of affairs was noted with distress by Chief Judge Coffin of the First Circuit Court of Appeals in Silva v. Romney.¹ A large part of Judge Coffin's opinion was devoted to urging the Department of Housing and Urban Development to adopt suitable regulations to guide federal agencies and federal aid recipients as to what action may be taken to alter the status quo under such circumstances, prior to the point at which the private party can be said to have entered into a "partnership" with the government. Such regulations would inform the agencies and private parties and guide their conduct so as to ensure a minimum of environmental damage prior to partnership and obviate the danger of a project's being stopped after considerable work and expense when it is found to be environmentally harmful in the post-partnership NEPA examination. By providing a framework for decisionmaking, the regulations would also aid the court in reviewing agency decisions.