On October 13, 1976, the United States Court of Appeals for the D.C. Circuit found the United States Navy's environmental impact statement for construction of the Trident nuclear submarine base in Bangor, Washington, deficient in two respects, but allowed construction to continue.¹ Placing an interesting gloss on §§101(b)(1) and 102(2)(C)(iv) of NEPA, the court disapproved the Navy's failure to forecast Trident's environmental impacts beyond 1981, the projected completion date for the base.

So long as the Fifth Amendment to the United States Constitution exists, there will be litigation over the nature and extent of the takings question: when does governmental action abrogate private property rights through appropriation or arbitrariness? Equally certain is that there will be disagreement over the appropriate theoretical tests in takings litigation.

Without much fanfare, the Council on Environmental Quality has issued its seventh annual report, a document notable for both its brevity and relative punctuality.Entitled Environmental Quality—1976,¹ it totals only 378 pages, barely one-half the length of last year's report. As CEQ notes in the Preface, this shortening is purposeful; the Council has adopted a new format which it hopes will make the report more useful as a reference document.

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.

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 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.

This Article is intended to give readers an overview of a wide range of issues involving solar energy that the Environmental Law Institute Solar Project staff is currently examining. The complexity of the legal issues and the speculative nature of many of the questions associated with this new and largely unrealized technology account for the broad approach taken here. There are too objectives in presenting in broad fashion the legal, institutional, and policy issues surrounding solar energy.

This Article represents an anticipatory exercise in analytic environmental law. It is anticipatory in the sense that the Coastal Zone Management Act of 1972 (hereafter referred to as CZMA) has yet to have an on-the-ground impact on land and water use decisions in the nation's coastal areas. Thus, this Article is designed to facilitate understanding of how that Act will function once the state programs created pursuant to it are implemented, as well as to illustrate the potentials and pitfalls for the states that may lie hidden in its statutory structure.

I. Introduction

Introduction