Recent Activity in the Administrative/Implementation of the National Environmental Policy Act

The Council on Environmental Quality has asked interested parties to submit suggestions which they may have for changes in the Council's Interim Guidelines, 1 ELR 46001. The Council's request appears at 35 Fed. Reg. 18219 and requests that suggestions be submitted by December 31, 1970. The Subcommittee on Administrative Procedures of the Council's Legal Advisory Committee has reviewed a number of 102(2)(C) statements, with a view toward suggesting changes in both agency practices and in the Council's Interim Guidelines. The subcommittee, which is chaired by Professor Louis Jaffe of the Harvard Law School, will not meet with the Council until January 11, 1971.

The Council has also encouraged comment upon the formal procedures set up by departments and agencies to implement NEPA and Executive Order 11514, 1 ELR 45003. The Council is particularly interested in the following ten departments or agencies: AEC, Agriculture, Army Corps of Engineers, Commerce, Defense, FPC, GSA, HUD, Interior, Transportation. Complete texts of procedural compliance guidelines for 20 different agencies and departments, including all of those mentioned here, are set out beginning at 1 ELR 46007.

The guidelines set out in ELR detail formal agency procedures for complying with § 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., 1 ELR 41009. Federal agencies prepared the formal procedures in compliance with the Interim Guidelines of the Council on Environmental Quality, § 3(a), April 30, 1970, 1 ELR 46001. Section 3(a) of the Interim Guidelines in turn relies explicitly upon Executive Order 11514 § 2(f), 1 ELR 45003 and implicitly upon § 102(2)(C) of NEPA itself for authority to require that the procedural compliance guidelines be prepared. Hence, the independent agencies are implicitly required to prepare 102(2)(C) procedural compliance guidelines.

The reader should consult the Summary and Comments section and indexes of subsequent issues of ELR for information on the current status of 102(2)(C) procedural compliance guidelines. This is necessary because agency compliance procedures under 102(2)(C) are being amended and improved, as recent entries in the Federal Register illustrate, although the Council's Interim Guidelines required that formal procedures be completed by 1 June, 1970. Hence, agency guidelines will be updated with ELR replacement pages when the agencies conclude rule-making and amend the C.F.R., or when they otherwise change formal 102(2)(C) compliance procedures.

The Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries began hearings on NEPA on Monday, December 7. Chairman Train was the first witness. He and subsequent witnesses, including environmental groups and environmental lawyers, have been closely questioned on the extent to which the agencies and the Council plan to make information gathered in the process of preparing 102(2)(C) statements available to the public.

The Senate Committee on Interior and Insular Affairs will hold hearings on the implementation of NEPA and on proposed amendments to it in late January or early February. Preparations for these hearings are being made by William Van Ness of Senator Henry M. Jackson's staff.

Public Access to 102(2)(C) Statements

Current discussion of the administrative implementation of NEPA centers upon the extent and timeliness of public access to information which agencies develop in the course of preparing 102(2)(C) statements. NEPA states that agencies shall include in each legislative proposal or proposal for action significantly affecting the environment a "detailed statement" on a range of important environmental factors. The act continues:

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes (emphasis added).

Thus it would appear that the act contemplates at least a two-stage procedure, and possibly a three-stage one. First, the agency proposing to act must develop its own comments on environmental impacts, and then improve upon these comments by consulting with other federal agencies with special skills helpful in assessing the environmetal impact of the proposal. At this point the proposing agency makes a "detailed statement," and the first stage is complete. The act is unclear about the next stage. Either the agencies are supposed to consult with "appropriate" state and local environmental agencies (and at the same time make the detailed statements available to the President, the Council and the public, adding the state and local agency [1 ELR 10006] comments as they come in), or the agencies are supposed to inject another stage in the procedure and complete their consultations with state and local agencies before making the detailed statements available to the President, the Council and the public. These are the two broad interpretations which the act allows.

The Council's position on the availability of the statements, however, is different from both of these, although more nearly like the three-stage one. The Council separates 102(2)(C) statements into two categories, draft and final. Under the Council's Interim Guidelines (1 ELR 46001), the authority for which is NEPA and Executive Order 11514 Section 3(b), all 102(2)(C) statements are "draft" until reviewed completely by relevant federal, state and local agencies, and by the Council. Upon the completion of review by all levels of government, the statements become "final" and are made available to the public.

The purpose of the Council's guidelines is contained in section 10(b): "It is important that draft environmental statements be prepared and circulated for comments and furnished to the Council early enough in the agency review process before action is taken in order to permit meaningful consideration of the environmental issues involved" (emphasis added). Hence it appears that the primary purpose of the distinction between "draft" and "final" statements was not, as some have feared, to limit public access to 102(2)(C) statements, but rather to guarantee to the Council early access to agency drafts, in order that the Council can influence the character and depth of the studies which the agencies prepare on the impacts of their actions.

However, the Council's distinction has also had the effect of guaranteeing early and timely access to 102 statements to all vitally concerned parties, except the public — the wide array of local civic groups, local and national conservation organizations, and individuals who can supply a wealth of useful information on the environmental effects of federal proposals.

The Council's interpretation of the act hinges upon the meaning which it gives to the statutorily required "detailed statement." It appears that "detailed statement" and "final statement" are synonymous in the Council's thinking. Although the Interim Guidelines speak only of "final texts" [Sec. 7(a) (vi); Sec. 10(b)], Chairman Train's letter of November 19 to Congressman Dingell (set out in full in this Comment, 1 ELR 10008) speaks of "detailed (final) environmental impact statements," a "detailed final statement" and "completed, detailed and commented-upon statements (the only statements contemplated in the law)." Equating the statutory "detailed statement" with the Council's "final statement" becomes crucial in the handling of comments from state and local governments. Chairman Train writes that the act does not "provide for publication of any information prior to the completion of the 'detailed statement,' which can only be accomplished after receipt of comments from appropriate Federal, State and local agencies" (emphasis added). NEPA states, however, that "such statement," i.e. the detailed statement, is to be made available to the President, Council, and public together with federal, state and local commentary upon it. NEPA appears, therefore, to instruct agencies to prepare detailed statements prior to consultation with state and local government. Under this reading of NEPA, Chairman Train has overstated the act's requirements for consultation prior to the submission of 102(2)(C) statements.

On this reading of the act, there is no reason why "detailed statements," i.e., statements prepared by the proposing agency after federal inter-agency consultation, cannot be made available to the general public at the same time they are sent to state and local governments for comment. Are there strong reasons why city mayors' offices should be invited to comment and local civic groups, some of which have considerable expertise, should not at least have the statements simultaneously available to them? If the Council still feels that the proposing agency should have an opportunity to rewrite its detailed statement, in light of comments received from state and local government, rather than merely making available to the President, Council and public the detailed statement along with federal, state and local agencies' comments (as the Act appears to require), guidelines can then be written which allow the public access on an equal footing with state and local government to detailed statements. The rewrite could then reflect the comments of federal, state and local government and the public. The "completed, detailed and commented-upon statements" would then possibly reflect citizens' comments and certainly would help allay fears that in law and theory, if not in practice, the 102(2)(C) statements can be used to announce imminent or actual federal action, rather than invite public participation well in advance of the decisions leading up to that action.

The act, as Chairman Train points out, "is not precise on the time relationship between the public availability of a detailed final statement and the ultimate decision or action." This uncertainty, if allowed to persist, may reduce the likelihood of public comment, for the reasons that an informed response takes time; that a project which has gained momentum weakens conviction that comments, if offered, can or will be taken into account; [1 ELR 10007] and that a project moving toward implementation invites criticism of the mode of implementation, rather than comment on the more fundamental concerns voiced by NEPA itself, such as viable alternatives, irreversible commitments, and long-term productivity. The danger of too short a period for the development of public comment can to some extent be contained by making "detailed statements" available to the public at the same time as they are sent to state and local environmental agencies for comment. Beyond this, testimony before the Dingell subcommittee has suggested that the need for adequate public participation is great enough to justify a substantial change in Council and agency guidelines and perhaps an amendment to NEPA itself.

NEPA does state that inter-agency consultation shall occur prior to the preparation of the "detailed statement." It is understandable that agencies may not want to give widespread public access to initial agency drafts and memoranda leading up to the "detailed statement." Nevertheless, in many cases the most careful and detailed consideration which a project receives will occur in the studies done by the proposing agency itself and by its sister agencies upon whom it calls for assistance. Meaningful public participation can and apparently does occur at this stage; agency general procedures in fact sometimes require public hearings, consultations, etc. The Council's Interim Guidelines already require that agencies establish formal agency procedures for providing timely public information under Executive Order 11514, Sec. 2(b), and several have done so.

Executive Order 11514, Sec. 4(b) (1 ELR 45003) deserves special comment. It states that in order to implement Title I of NEPA, the heads of federal agencies shall:

Develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropriate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action. Federal agencies shall also encourage State and local agencies to adopt similar procedures for informing the public concerning their activities affecting the quality of the environment.

For the reasons given above, the Council is free to guarantee early public access to "detailed" 102(2)(C) statements. In light of this Presidential directive it seems anomalous that the public should now be last in the hierachy of consultation behind federal, state and local agencies, especially when the way is open under the act to put the public on an equal footing with them. (Also, when read literally NEPA requires that the President, the Council and the public be given contemporaneous access to the statements.)

Section 2(b) of the Executive Order, however, does suffer from a basic ambiguity. Its language insures the "provision of timely public information and understanding," and the provision of "relevant information." It asks that federal agencies encourage state and local agencies to adopt "procedures for informing the public concerning their activities affecting the quality of the environment." Information, however, can move from the public as well as to it. These phrases emphasize the passing on to a receptive public of the results of an earlier process of decision-making. Yet, other language in the Order emphasizes that agencies should supply information "in order to obtain the views of interested parties," and that they should provide for public hearings, where appropriate. This basic ambiguity suggests that the Order would benefit from interpretation and clarification, perhaps in the next guidelines of the Council.

The foregoing emphasizes the theory of 102(2)(C) procedures; it says nothing about practice under 102(2)(C). The Corps of Engineers, the Atomic Energy Commission and the Federal Power Commission are in fact making draft environmental impact statements available to the public at, or prior to, the time of public hearings. Six other agencies have agreed to make at least some draft statements available to the public. Approximately 300 statements, both draft and final, have been submitted to the Council. 201 of these are final; 62 of the remaining 100 draft statements are available to the public. The Council currently receives approximately 100 draft and final statements per month. Statement of Chairman Russell E. Train Before the Subcommittee on Fisheries and Wildlife Conservation, House Committee on Merchant Marine and Fisheries, December 7, 1970, at p. 3 of Prepared Testimony. Thus it appears that in practice at least some public access to draft 102(2)(C) statements is allowed.

All 102(2)(C) statements submitted to the Council and available to the public will be available through the ELR Digest Facsimile Service, 1 ELR 60000, beginning with the February, 1971 issue of ELR.

Section 103 Non-compliance Statements under NEPA Sec. 103 of NEPA requires that agencies review their authority, regulations, policies and procedures to identify deficiencies or inconsistencies which would prohibit full compliance with the act. NEPA requires that statements of these inconsistencies be prepared by July 1, 1971, but the Council in its Interim Guidelines calls for agency 103 statements by September 1, 1970. Statements by all [1 ELR 10008] prinicipal agencies have now been prepared. ELR review of 103 statements has not yet been completed, but there do not appear to be many inconsistencies and deficiencies as anticipated by section 103.

All 103 statements submitted to the Council will be available through the ELR Digest Facsimile Service, 1 ELR 60000, beginning with the February, 1971 issue of ELR.

Text of CEQ Chairman Train's Letter to Congressman Dingell

November 19, 1970

Dear Mr. Dingell:

"Thank you for your letter of November 16 asking for clarification as to the manner in which this Council is administering the environmental impact statement requirements of the National Environmental Policy Act. I wish to assure you in the most emphatic way possible that the Council has consistently and aggressively sought to ensure the fullest practicable information to the public, consistent with the Act. Furthermore, the Council is satisfied that its administration of the Act in this regard is in full accord with the intent of Congress. There has been absolutely no change in the policy of this Administration in this respect. Our procedures under the Act have been a matter of public record from the start, and we have not varied from these procedures.

"Because of widespread public concern over the matter, however, I welcome this opportunity to outline our understanding of the law as well as the procedures we are following thereunder. The National Environmental Policy Act provides in Section 102(2)(C) that every Federal agency shall 'include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official' on the environmental impact of the proposed action, possible adverse effects, alternatives, etc. Prior to making such a detailed statement the Section requires the responsible official 'to consult and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.' The Section then provides that copies of such statements (the 'detailed statements' referred to in the preceding sentence), together with the comments of appropriate Federal, State and local agencies, are to be made available to the Council on Environmental Quality and to the public pursuant to the provisions of the Freedom of Information Act.

"You will note that the above-described statutory provisions make no mention of a draft environmental impact statement, nor do they provide for publication of any information prior to the completion of the 'detailed statement' which can only be accomplished after receipt of comments from appropriate Federal, State and local agencies.

"Subsequent to passage of the National Environmental Policy Act, on March 5, 1970, the President issued Executive Order 11514, entitled 'Protection and Enhancement of Environmental Quality,' in furtherance of the purpose and policy of the National Environmental Policy Act. Section 3 (h) of the Executive Order directed the Council to 'issue guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment, as required by Section 102 (2)(C) of the Act.' The Executive Order also went well beyond the requirements of the statute itself in directing the fullest practicable disclosure of environmental information. Thus, Section 2(b) of the Executive Order directs Federal agencies to:

(b) Develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropriate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action. Federal agencies shall also encourage State and local agencies to adopt similar procedures for informing the public concerning their activities affecting the quality of the environment.

"Pursuant to this Executive Order, on April 30, 1970, the Council issued interim guidelines to assure agency compliance with Section 102(2)(C) and Section 2(b) of Executive Order 11514. These guidelines were published in the Federal Register of May 12, 1970. Because of the need to regularize the process of consultation between Federal agencies prior to the completion of the detailed (final) environmental impact statements, the Council's guidelines instituted a working procedure calling for draft statements. These draft statements are to be 'prepared and circulated for comments and furnished to the Council early enough in the agency review process before an action is taken in order to permit meaningful consideration of the environmental issues involved.'

"The requirement of the National Environmental Policy Act that Section 102(2)(C) statements be made available to the public under the Freedom of Information Act clearly refers to the completed, detailed, and commented-upon statements (the only statements contemplated in the law) and it is this construction of the statute which we have consistently applied.

"It has been our practice to refer public inquiries concerning environmental statements to the issuing agency in order to relieve our very limited facilities and staff of the burden of distributing the statements to the public, and in order to make clear that compliance with the National Environmental Policy Act is the responsibility not only of the Council on Environmental Quality but also of the responsible Federal agency. Nevertheless, we have always made clear that should the citizen inquirer have any difficulty in obtaining copies of environmental statements, we would wish to be informed and would assist. No insoluble problems of this sort have arisen. Moreover, in order that interested members of the public can be kept informed of the status of environmental impact statements, the Council, on its own initiative, prepares and makes available periodically a detailed listing of all final statements received, along with the names, addresses and telephone numbers of the responsible officials from whom the statements can be obtained. These summaries are now mailed by the Council to over 500 individuals and institutions, including interested Congressional Committees. Press representatives, who have expressed interest in the environmental impact statements, are also sent these summaries.

"While we are satisfied that the above procedure is in full accord with the letter and intent of the National Environmental Policy Act and with the Executive Order, it must be recognized that the Act itself is not precise on the time relationship between the public availability of a detailed final statement and the ultimate decision or action, except (1) it is clear that completion of the final detailed statement must precede the ultimate decision and action, and (2) the final detailed statement 'should accompany the proposal through the agency review processes.' It should be borne in mind that the great majority of environmental statements deal with activities, appropriations, or legislation with respect to which full public hearings in advance of decision are already required presently by either Congressional, statutory, or administrative procedure.

[1 ELR 10009]

"While Congress might decide that draft environmental impact statements should also be required by law to be made available to the public or that the action proposed in a final environmental statement should be withheld a certain period for public comment, there areimportant questions of public administration to be considered before the statute is changed.

"Our view is that the National Environmental Policy Act is so general in its language, so innovative in its procedures and so all-embracing in the range of Government activities included that, rather than make new across-the-board requirements we should evolve appropriate procedures for the various major categories of activity involved. For example, in the case of proposals for, or reports on, legislation, there would not seem to be a reason why the public should see an environmental impact statement before Congress does. In other administrative actions we can often build on existing requirements for hearings or notice to the public. In still other cases (for example GSA land purchases), advance disclosure of the Government's purchase intentions would probably prejudice chances for economical purchase.

"The Council believe strongly that the public should be brought into the decision-making process at it affects the environment to the fullest extent practicable. It was at our recommendation that Section 2(b) of Executive Order 11514, quoted above, was adopted. Our guidelines have instructed all agencies to develop procedures for the implementation of Section 2(b). Most agencies have now done so. In response to our initiative, a number of agencies (such as the Corps of Engineers, Atomic Energy Commission and Federal Power Commission) are making draft environmental impact statements available to the public at, or prior to, the time of public hearings.

"The Council's interim guidelines provide for review of the Section 102(2)(C) guidelines this coming December and the issuance of such supplements as may then seem necessary. We intend to solicit public comment and suggestion as part of this review process. Likewise, we would naturally be greatly interested in the views of those committees and members of Congress closely associated with the development of the legislation in question.

"In summary, far from feeling that the Council has in any way been responsible for weakening the process of public information under the National Environmental Policy Act, we believe we are administering the Act in accordance with the letter of the law and the intent of Congress. In addition, the President, through the Executive Order, and the Council, through its guidelines and procedures, have moved effectively to broaden and strengthen the public's right to information.

"As a closing note, I would comment that the performance by agencies under Section 102(2)(C) is improving steadily, although in certain cases there is still need for major improvement. We are now actively reviewing agency performance and will be reporting on this subject to Congressional committees early in December. In this regard, it is important to bear in mind that we are dealing with a very basic reform in the process of government — one which has been effectively in operation for only about six months. Over the past month, we have received approximately four environmental impact statements each working day, on the average. I assure you that the Council is seeking to give a review to the contents of such statements although our ability to do so in all cases and to do so to the extent we would wish is seriously inhibited by the very limited size of our staff. We have a highly competent, dedicated group working for the Council, most of whom are working an excessive schedule. At the same time, public and Congressional expectations of the Council continues to rise. In this connection, it must be borne in mind that the review of environmental impact statements constitutes only a portion of the Council's responsibilities. The development of legislative proposals, the coordination of Federal programs related to environmental quality, the development of new national policies such as that on ocean dumping, budget reviews of programs affecting the environment, international environmental programs, the continuing review of all Federal programs that affect the environment, the development of the annual Environmental Quality Report — all of these and more must all be carried on daily by the same small staff.

"I hope that these comments will be helpful. We look forward, as always, to continued close cooperation with you and your staff."

Sincerely,

Russell E. Train, Chairman