Judicial Implementation of the National Environmental Policy Act

Article in this Issue

The National Environmental Policy Act of 1969 (NEPA) 43 U.S.C. § 4321 et seq., 1 ELR 41009, was signed into law by President Nixon on New Year's Day, 1970. This month, on NEPA's first anniversary, the Environmental Law Reporter is publishing Ronald Peterson's analysis of Title I of the act (1 ELR 50035). His article shows that during the past year the broad mandates of the act to some extent did affect federal agency action and did afford private parties a means by which to challenge environmentally damaging federal action in the courts.

Mr. Peterson's analysis, however, is not merely a review of the past year's litigation under NEPA. Rather, it probes the substantive content of the national environmental policy, examines the ways in which the courts might enforce that policy, and calls upon the environmental bar to aid the courts by adopting a rational judicial strategy for the implementation of the act. Mr. Peterson reviews Title I's congressional declaration of environmental policy and analyzes line-by-line the act's imposition of substantive and procedural duties on federal officials and agencies which must implement that policy.

Since the completion of Mr. Peterson's article, there have been several judicial interpretations of NEPA. These decisions involve (1) the basis for judicial enforcement of the act and (2) the act's application to actions initiated prior to its effective date (January 1, 1970).

The Bucklein Case

In Bucklein v. Volpe, 1 ELR 20043 (N.D. Cal., Oct. 29, 1970), a taxpayer brought a class action to enjoin the Secretary of Transportation from committing federal emergency relief funds for road repair under 23 U.S.C. § 125. The Court granted defendants' motion to dismiss the complaint "… for failure to state a cause of action . …" Plaintiff alleged that by approving the expenditure of federal funds for road repair on the certification of a County Board of Supervisors that the repair would be environmentally sound, the Secretary "abused his discretion" under NEPA, thereby rendering his decision invalid. The court found that "it is highly doubtful that the Environmental Policy Act can serve as the basis for a cause of action. Aside from establishing the Council, the act is simply a declaration of congressional policy; as such, it would seem not to create any rights or impose any duties of which a court can take cognizance" (Emphasis added) (1 ELR at 20044).

The brevity of the court's discussion of the facts in this case inhibits extended analysis of the question [1 ELR 10004] of NEPA's impact. The date of the contested administrative decision is not given, the size of the expenditure and other facts concerning the environmental impact of the road repair project are absent, and most important there is no clear indication of whether the Secretary ever filed a § 102(2)(C) statement, if one was required. (Conceivably plaintiff's pleading was defective in this regard.)

It is quite clear that NEPA imposes substantive and procedural duties on all federal agencies and officials within its purview. Bucklein casts doubt upon the extent of these duties (a matter discussed by Mr. Peterson and not repeated here) and upon the manner of their judicial enforcement. Three sections of the Act, §§ 102(2)(C), 103 and 104, when viewed in conjunction with recent judicial decisions which "narrow the range of unfettered administrative discretion" (Peterson, 1 ELR at 50038) by emphasizing the administrator's duty to create a record and to support his decision with it, leave little doubt as to the manner of judicial enforcement of NEPA. Congress has required all federal agencies to add environmental data and analysis to the administrative record of environmentally significant decisions. Consequently, upon judicial review the absence of such data from the record will require a finding that the decision under scrutiny was made in an arbitrary and capricious manner, or is not supported by substantial evidence viewed on the record as a whole (since a necessary part of the record was never compiled and reviewed). It follows that such a decision is outside the scope of the administrator's delegated authority and therefore invalid. This judicially enforceable "duty" to prepare § 102(2)(C) statements and to include them in the administrative record may be enforced by anyone who has standing to seek judicial review. Wilderness Society v. Hickel, 1 ELR 20042 (D.D.C., April 23, 1970); Sierra Club v. Laird, Civ. No. 70-78 TUC (D. Ariz., filed May 25, 1970). See also Statement of [C.E.Q.] Chairman Russel E. Train Before the Subcommittee on Fisheries and Wildlife Conservation, House Committee on Merchant Marine and Fisheries, December 7, 1970, at p. 9 of Prepared Testimony. The recent expansion of the standing doctrine and its relation to NEPA is fully discussed in Mr. Peterson's article, 1 ELR 50035.

The Brooks and Investment Syndicates Cases

The application of NEPA to administrative action initiated prior to January 1, 1970 has been discussed in two federal district court decisions on preliminary motions which were delivered after Mr. Peterson's article was written. In Brooks v. Volpe, 1 ELR 20045 (W.D. Wash. Sept. 25, 1970), the court denied plaintiff's request for a preliminary injunction and held NEPA's requirement of a 102(2)(C) statement inapplicable to a highway location decision made by the Secretary of Transportation in 1967. Investment Syndicates, Inc. v. Richmond, 1 ELR 20044 (D. Ore., Oct. 27, 1970), is similar. Plaintiff land speculators sought to resist construction by the Bonneville Power Administration of a new power transmission line beside an existing right of way, a project which entailed the condemnation of a right-of-way easement over plaintiff's recently acquired oceanfront property. In granting the government's motion to dismiss plaintiff's suit for injunctive relief, the court found that Congress did not intend to require compliance with NEPA where a project had been under review for over two years and had also been substantially funded prior to the act's passage.

In both of these cases a federally initiated or funded project existed prior to NEPA's effective date, but in each case there apparently remained substantial decision-making to be done before completion of the project. The Brooks decision is unclear as to whether a decision on the design of the proposed highway had been made by January 1, 1970, but it appears that it had not. Likewise, the power line project in Investment Syndicates, Inc. was not so far along that changes to protect the environment could not have been incorporated in the project's design. Situations such as these were the precise focus of the Council on Environmental Quality's Interim Guidelines, 1 ELR 46001, 35 Fed. Reg. 7391 (May 11, 1970), which interpret section 102(2)(C): "Application of section 102(2)(C) procedure to existing projects and programs. To the fullest extent possible the section 102(2)(C) procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to enactment of Public Law 91-190 [NEPA] on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program." Id, at 46004

Reviewing courts should view § 102(2) statements as more than early assessments of whether or not a project will take an environmental toll if it goes forward; rather, projects which were approved in a tentative or general fashion prior to the act's passage should be subjected to a NEPA review in which ways to minimize environmental harm in advanced phases of the project can be studied and acted upon by the agency. In Brooks the court could have halted highway construction until a § 102(2)(C) study of design decisions could be prepared. The same is true in Investment Syndicates, [1 ELR 10005] where the actual construction had not yet begun. Both courts noted the additional expense which such interruptions would entail. However, NEPA's legislative history and the Council's Interim Guidelines show that in cases of this sort it is just such short-run expenses which Congress has decided should be paid in order to insure that long-term costs will be reduced and timeless values protected.