Developments Under the National Environmental Policy Act

Certiorari denied in San Antonio Conservation Society v. Texas Highway Dept.

The possibility of an early Supreme Court interpretation of the National Environmental Policy Act was lost on December 21, 1970 when the Court denied without opinion the San Antonio Conservation Society's petition for certiorari before judgment and dissolved the Court's previously granted stay (Dec. 7, 1970) in San Antonio Conservation Society Members v. Texas Highway Dept., 1 ELR 20069 (U.S.Dec. 21, 1970). The case was originally presented to Justice Black (5th Cir. Justice) when the San Antonio Conservation Society moved for a stay of administrative proceedings pending appeal to the Fifth Circuit of the district court's (W.D.Tex.) grant of defendants' motion for summary judgment. Both the district court and the Fifth Circuit had denied without opinion motion for stay pending appeal. In the Supreme Court petitioner sought extraordinary relief relying on the All Writs Act, 28 U.S.C. § 1651, and the provision of the Administrative Procedures Act (A.P.A.) authorizing relief pending judicial review, 5 U.S.C. § 705 (1 ELR 41001). The motion was referred to the Court by Justice Black. However, the Court preferred to treat motion as a motion for stay pending petition for certiorari before judgment by the Fifth Circuit, pursuant to 28 U.S.C. § 1254. In these circumstances on December 7, 1970 the Court granted the stay. Subsequently the Petition For Certiorari Before Judgment was filed and denied and the stay dissolved, all without opinion.

Justices Black, Douglas and Brennan dissented. The suit was brought to block the Secretary of Transportation's approval and funding of two portions of a six-lane expressway to be routed through a 250-acre public park in San Antonio, Texas. The agency decision in question raises a substantial issue under the Federal Aid Highway Act, 23 U.S.C. § 138, which was intended to protect such parklands. This aspect of the case is similar to Citizens to Preserve Overton Park v. Volpe, 1 ELR 20053 (6th Cir. 1970), cert. granted 39 U.S.L.W. 3256 (Dec. 7, 1970), discussed at 1 ELR 10001.

In the San Antonio case the operative federal agency decision apparently occurred on August 13, 1970 and had not been preceded by the preparation and filing of a NEPA § 102(2)(C) statement. Concentrating on the NEPA aspects of the case, Justice Douglas outlined the act's general prerequisites for applicability and its requirements for compliance with § 102(2)(C). He then quoted at length portions of the act's legislative history supporting its specific application to federal highway location and design decisions and indicating the [1 ELR 10023] significant impact of such decisions on the environment. In a conclusion which says much about conflicting interpretations of NEPA during its short history, Justice Douglas said, "I would continue the stay, grant the petition for certiorari … and let the bureaucracy know that § 102(2)(C) is the law of the land to be observed meticulously."

NEPA favorably construed in Cross-Florida Barge Canal decision

On January 27, 1971 the Federal District Court for the District of Columbia preliminarily enjoined the 28-year-old Cross-Florida Barge Canal project. See opinion, 1 ELR 20079. Begun in 1964, but authorized in 1942, the Canal's structures are allegedly one-third completed and the over-all project one-sixth completed.

Since the court's decision, the President announced that the entire project would be discontinued. However, more court activity is possible with respect to further construction and management practices necessary for already completed segments of the Canal, especially regarding Rodman Pool.

The court doubted that all of the statutory materials cited by plaintiffs supported their position. However, the court was convinced that NEPA, the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq., and the act authorizing the Canal, 56 Stat. 703 (July 23, 1942), had probably not been sufficiently complied with by defendants. With respect to NEPA, the court cited the act's requirement for a detailed and systematic consideration of the environmental impact of federal actions (1 ELR 20079) and on the basis of federal reports and of letters between officials, concluded that such consideration had not taken place.

The court also weighed the possibility of irreversible damage to the environment, and balanced short-term costs to the defendants against possible long-term environmental losses, as required by NEPA.

The court cited "the partial state of construction, and the extensive alleged remaining construction time," in holding NEPA applicable to the project. 1 ELR 20079. The issue of which already conceived and initiated federal projects should come under NEPA's requirement that continuing projects be evaluated for the environmental effects of decisions still to be made is squarely raised by this case. Summary and Comments discussed this issue last month in regard to the Brooks (1 ELR 20045) and Investment Syndicates (1 ELR 20044) cases. See 1 ELR 10003. Fortunately, the Barge Canal court read NEPA more carefully on the issue of its "retroactive" application. Hence it was possible for the court to enjoin preliminarily a 28-year-old project which was well under way, since further decisions remained to be made and since continuation of the project without closer study of environmental effects risked to cause harm totally out of keeping with "the clear priority the Congress has recently given to preserving and protecting the Nation's natural resources." 1 ELR 20079

The Ely case

In Ely v. Velde, 1 ELR 20082 (E.D. Va. Jan. 22, 1971), residents of the Green Springs area of Virginia brought suit to enjoin permanently a grant to the state of federal Law Enforcement Assistance Administration (LEAA) funds to be spent in the construction of a prison medical facility in plaintiffs' historically and architecturally unique rural community. Plaintiffs argued that the commitment of funds would violate the policies and duties imposed upon LEAA by NEPA, 42 U.S.C. §§ 4321 and 4331 et seq., to administer the Law Enforcement Assistance program in a manner consistent with environmental protection.

The court found a possible conflict between NEPA and a particular section of LEAA's authorizing legislation (Safe Streets Act of 1968, 42 U.S.C. § 3733). In examining the statutes, the court concluded that § 102 of NEPA, 42 U.S.C. § 4331, was drafted so as to allow discretionary non-compliance where a conflict existed between NEPA and other law applicable to the agency's operations, i.e., the Safe Streets Act. The court's reasoning is correct on one assumption of the relevant facts. But it is not clear from the opinion (nor from the complaint and answer) that the case actually presents a conflict between NEPA's policy and duties and LEAA's administration of grants under the Safe Streets Act of 1968. Assuming that LEAA has no choice but to grant the funds once a state plan has been approved, such an assumption does not warrant the conclusion that LEAA could not have implemented NEPA at an earlier state in the grant review process. Specifically, yearly approval of the "state comprehensive plan," which is a prerequisite to the type of grant at issue, must be sought from LEAA. The court does not examine the statutory mechanisms of annual review to determine if they might serve as a proper vehicle for this agency's duty to implement NEPA.

If the state plan in Ely was approved after the effective date of NEPA (Jan. 1, 1970), and there are allegations to that effect, the act of approving the plan would appear to constitute federal action significantly affecting the environment, thus requiring compliance with NEPA. The exact nature of the compliance which should be required in the administration of a grant-in-aid program which does not entail prior approval by the federal agency of specific projects is uncertain. The Council on Environmental Quality (CEQ) in its recently proposed guidelines, 36 Fed. Reg. 1398, 1 ELR 32001 (preserving the language of its Interim Guidelines, 1 ELR 46001) suggests that § 102(2)(C) procedures "in the [1 ELR 10024] legislative, and possibly appropriation, process" may have to be deemed sufficient NEPA compliance by agencies administering grant-in-aid programs of this type. But a construction more consonant with the act's requirements of agency compliance "to the fullest extent possible" is available. Under NEPA the agency could be required to impose environmentally protective preconditions to approval of the state plan which are similar to those imposed by LEAA under its enabling legislation. These preconditions are designed to ensure the realization of the statutory goals of crime control and prevention. Under this interpretation proposed state plans must include sufficient information for the preparation of a § 102(2)(C) statement by the federal agency. State compliance with the environmental terms written into its plan in the federal agency review process is as enforceable as is the state's compliance with the plan generally.

To the extent that total NEPA compliance could not be attained in this manner without departing from the decentralization of decision-making which is an objective of the existing legislation, LEAA would have to submit to the President proposals for alteration of its existing legislation, as called by NEPA, § 103, 42 U.S.C. § 4333. The feasibility of such an approach is supported by the observation of the Director of Health, Education and Welfare's Office of Environmental Affairs in his October 2, 1970 report to the CEQ in compliance with NEPA, § 103 (a report, incidentally, that LEAA has not yet filed). "This Department administers … programs involving construction which has a potential for significant impact on the environment. A review of the authorizing legislation does not reveal any program in which we may not impose appropriate conditions intended to effect compliance [with NEPA] or under which funds cannot be withheld because of environmental considerations." HEW administers several grant-in-aid programs which, like the program administered by LEAA, are intended to decentralize decision-making.

New guidelines proposed by Council on Environmental Quality for procedures to be used by agencies in the preparation of Environmental Impact Statements under the National Environmental Policy Act

Under § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 43 U.S.C. §§ 4321 and 4331 et seq., 1 ELR 41009, federal agencies are required to prepare detailed statements of environmental impact for proposed legislation and other federal actions likely to affect significantly the quality of the environment. On April 30, 1970 the Council on Environmental Quality published its Interim Guidelines (1 ELR 46001) regulating the manner in which federal agencies are to prepare and submit statements. The guidelines also called upon agencies to develop their own guidelines for the procedural implementation of NEPA. The agencies' procedural compliance guidelines are set out beginning at 1 ELR 46007.

The Interim Guidelines, as their name indicates, were temporary. In appearances before Congressional committees Chairman Train indicated that they would be updated at the end of December, 1970. In carrying out its intent to revise, the Council on Environmental Quality called for public comments on the temporary guidelines at 35 Fed. Reg. 18219. Ths Summary and Comments section of the January issue of ELR analyzed in detail the extent to which the guidelines gave the public access to early drafts of environmental impact statements. See 1 ELR 10005-7. (See 1 ELR 10005 and 46007 for an analysis of the authority under which the Interim Guidelines were promulgated.)

The Council has now proposed new guidelines for environmental impact statements. 36 Fed. Reg. 1398 (January 28, 1971). The full text of the proposed guidelines is set out at 1 ELR 32001. The Council will accept written comments, suggested changes and objections relevant to the proposed rule-making until March 15, 1971.

The Council's proposed revised guidelines stress the need for the earliest possible consultation with federal environmental agencies where newly conceived federal action may threaten environmental values. Agencies with expertise are identified by name. The proposed guidelines require that to the fullest extent possible no administrative action subject to NEPA is to be taken sooner than 90 days after a draft impact statement has been provided to relevant federal sister agencies, the Council, and the public, or sooner than 30 days after the final text is available. Legislative proposals must be made public at some time prior to Congressional hearings. The proposed guidelines require agencies to develop procedures "to ensure the fullest practicable provision of timely public information and understanding of federal plans" in order to obtain the views of interested parties, including provision for public hearings. Except where increased procurement costs may result from disclosure, draft statements are to be made available to the public at the same time they are circulated to other federal agencies and the Council for comment and at least 15 days before any public hearings which may be provided.

"The objective of Section 102(2)(C) of the Act and of these guidelines is to build into the agency decision-making process an appropriate and careful consideration of the environmental aspects of proposed action and to assist agencies in implementing not only the letter, but the spirit of the Act." Para. 1.

These provisions improve the Interim Guidelines to the extent that under the new rules the public has access to draft statements at the same time that other federal agencies, state and local agencies and the Council [1 ELR 10025] receive them. Under the Interim Guidelines, the public was guaranteed access to the statements only when they were "final," i.e., after federal, state, local and Council review. See 1 ELR 10006. The new guidelines also make clearer that a pro forma, hasty review of environmental impacts was not intended by NEPA and that, in addition to striving for the earliest practicable consideration of environmental factors in agency decision-making, agencies must allow at least three months of review for draft statements, and one month of review for final statements, before acting.

The Office of Management and Budget plans to update its Bulletin No. 71-3 (1 ELR 46005) so that its requirements are consonant with the Council's. Furthermore, most of the procedural compliance guidelines prepared by the agencies in response tothe Interim Guidelines will have to be revised to take account of the proposed new Council regulations. For instance, the Department of Defense implemented the letter of the Interim Guidelines and accordingly will have to revise its rules reharding the availability of draft statements § 6 (1 ELR 46022). On the other hand, the Army Corps of Engineers makes its "preliminary draft environmental statements" available to the public even before drafts are prepared by Division Engineers § 6(a) (1 ELR 46011). Except to insure three-month review periods after drafts are completed (and one-month periods for final statements), the Corps need make few changes in its guidelines.

The reader should consult the Summary and Comments section of ELR for information on the current status of § 102(2)(C) procedural compliance guidelines. Agency guidelines will be updated when agencies conclude rule-making and amend the C.F.R., or when they otherwise change formal 102(2)(C) compliance procedures. In some instances agency notices of proposed rule-making will be carried beginning at Administrative Proceedings, 1 ELR 32000.

The substantial improvements in § 102(2)(C) compliance procedures wrought by the Council's proposed guidelines leave unsettled the issue of whether timely and thorough analyses by federal, state and local governments and the public of federal environmental impacts and impact statements is now possible, although a minimum of three months of review of draft statements, and one month for review of final statements, are guaranteed by the proposed guidelines before final agency action may be taken. These minimum requirements of course are only a small fraction of the total time which will be spent in developing the majority of federal or federally-approved projects from original concept to a firm commitment to proceed. The draft guidelines appear to recognize the usual, lengthy evolution of federal projects and call for the earliest possible consideration of environmental factors. The goal clearly is to have such factors actively explored from a proposed project's earliest beginnings. But review periods which are as short as those guaranteed in the Council's proposed guidelines give some support to the tendencies of agencies — already developed in the first series of procedural compliance guidelines which the agencies prepared (1 ELR 46007-47) — to treat § 102(2)(C) as setting out pro forma requirements to display impact statements to sister agencies and to state and local governments for what few comments might be made in a brief review of the information contained on the face of the statement.

Federally supported or approved steam electric power plant construction — both nuclear and fossil fuel — and the siting of these facilities and of the extra-high-voltage transmission lines which accompany them are issues whose environmental aspects must be explored years, not months, in advance of final federal decisions affecting them. Plans for such facilities are laid as much as a decade in advance. A thorough study initiated by the President's Science Advisor and completed by the Energy Policy Staff of the Office of Science and Technology (Electric Power and the Environment, Government Printing Office (August, 1970) 71 pp.) recommends that regional planning precede construction by 10 years and that participation in planning by the environmental agencies begin, and notice to the public be given, at least five years in advance of construction. Lead times such as these reveal the minimal protection of the review process guaranteed by the three-month review requirement of the proposed guidelines.

Agency delegation of the preparation of 102(2) (C) Statements to private parties

In many instances the federal activity subject to § 102(2)(C) concerns loans, grants, leases, contracts, licenses, etc., in connection with which private companies, individuals or state and local governments may be enabled, through an exercise of federal decision-making power, to cause environmental damage. Under both existing and proposed guidelines agencies may and in fact do call upon the private proponents of potentially destructive activities to draft 102 statements or to prepare the materials upon which agency statements will be primarily based. In such cases agencies do not put experts in the field and do not conduct independent studies; rather, they simply review materials submitted by the proponents of action and use them to form the basis for the agency's final statement. In some instances agencies appear to set up an adversary process in which proponents and opponent intervenors submit competing assessments of the environmental harm threatened. Then the agency, acting in a fact-finding capacity, rules upon the likelihood of environmental harm.

NEPA § 102(2)(C) requires every federal agency "to [1 ELR 10026] include in every recommendation or report on proposals … significantly affecting the quality of the human environment, a detailed statement by the responsible official …" (emphasis added) on the five specific factors listed in the section. While the act does not state specifically that the "responsible federal official" shall conduct original field research on environmental factors, nevertheless, NEPA's effective implementation depends upon affirmative inquiry by agency scientists into such factors. The procedural requirements of § 102(2)(C) are "action-forcing." S. Rep. No. 296, 91st Cong., 1st Sess., p. 9 (1969); Peterson, 1 ELR 50040. The reason for including actionforcing procedures in NEPA was the fear that in the absence of such procedures agencies might be able to evade implementation of the national environmental policy. See statement of Senator Jackson, Hearings on S. 1075, S. 237 and S. 1752, before the Committee on Interior and Insular Affairs, 91st Cong., 1st Sess., p. 116 (1969). Furthermore, it is inconsistent to allow agencies to delegate responsibility for preparing draft statements to private proponents of action under § 102(2)(C), while (1) § 102(2)(A) requires the agencies to use a systematic, interdisciplinary approach based upon natural, social and design sciences in planning and decision-making; (2) § 102(2)(B) requires agencies to change practices so that unquantified environmental amenities and values are considered also with traditional economic and technical considerations; (3) § 102(2)(D) requires agencies "to study, develop, and describe appropriate alternatives to recommended courses of action;" and (4) § 102(2)(G) requires agencies "to initiate and utilize ecological information" in planning and developing resource-oriented projects (emphasis added). Clearly NEPA places a burden on federal agencies to develop factual information about environmental threats and to restructure the exercise of administrative discretion so that the national environmental policy is implemented.

At present agency practices, as opposed to agency procedural guidelines, do not reveal the actual extent of agency-originated, independent environmental factfinding. Nor do the guidelines reveal how thoroughly agencies intend to explore environmental factors in the future. However, based upon an analysis of the guidelines there is cause for concern. In key agencies the applicant is accorded a preferential position in the framing of environmental issues regarding his project. His statistics and his analyses are seen first; he has ample time to prepare. In fact, in some instances applicants will have years or months to formulate a strategy, including ex parte informal consultation with agency personnel which is not covered in any agency's guidelines to date. At present the proponent can purchase or supply more expertise, with more time to act, than either the agencies themselves or private parties which defend environmental interests. Hence, more often than not under existing rules proponents frame the issues and pose the key questions; others who might frame the issues and questions differently have the time and resources only for a relatively passive role of reaction and comment. Within these limitations agencies and intervenors alike cannot offer constructive alternatives and gather important additional facts which might permit a more environmentally sensitive federal response when the time for decision has come.

An almost insurmountable problem at present for agencies that administer or approve activities with significant environmental impacts is staffing adequately to prepare detailed, researched analyses which satisfy § 102(2)(C). Several agencies now have full-time administrators for NEPA-related agency activities. But few agencies have been able to acquire the scientifically trained manpower which will be necessary before agencies can make the informed, specific changes in agency policy necessary so that the national environmental policy can be properly implemented. Problems with staffing explain, at least in part, why agencies seek either to have private proponents of action prepare impact statements or to have sister agencies shoulder some of the burden of analysis.

The formal procedures discussed here may vary a good deal in practice as they are implemented. Agencies may take more initiative in developing their own analyses than is apparent from their § 102(2)(C) procedural compliance guidelines, e.g., the FPC's review as to form of proponents' statements may become quite thorough. Such a conclusion does not appear to be borne out to date, however, for the agencies discussed. See the listing of 102 statements submitted to date to the Council on Environmental Quality beginning at Bibliography and Facsimile Service, 1 ELR 65000.

Currently the Atomic Energy Commission, the Federal Power Commission, the Department of the Interior, the Department of Transportation, and the Civil Aeronautics Board permit private proponents of environmentally significant activities to prepare the first drafts of environmental impact statements or to prepare the materials upon which agency statements will primarily be based.

a. Atomic Energy Commission

The AEC requires each applicant for a construction permit for a nuclear power reactor or fuel reprocessing plant to submit 150 copies of an "Environmental Report." The five factors to be covered are the same as the five detailed in § 102(2)(C). Holders of construction permits for which no AEC environmental statement has yet been prepared must also prepare and submit 150 copies of a statement. Each applicant for a license to operate either a power reactor or reprocessing plant must prepare an Environmental Report, but only for [1 ELR 10027] factors not covered in its earlier Environmental Report at the construction permit stage.

After receiving an Environmental Report, the Director of Regulation "will analyze the report and prepare a draft Detailed Statement of environmental considerations." 1 ELR 46016. He then forwards his statement and the report to federal agencies with environmental expertise, which are indicated by the Council in its guidelines. 1 ELR 46001. Federal agencies have 30 days in which to comment. State and local agencies have 60 days. After relevant federal, state and local commentary has been received, the Director of Regulation prepares a final detailed statement. "In preparing the Detailed Statement, the Director of Regulation or his designee may rely, in whole or in part, on, and may incorporate by reference, the appropriate Applicant's Environmental Report, and the comments submitted by Federal, state, and local agencies …, as well as the regulatory staff's radiological safety evaluation." Para. 5, 1 ELR 46017.

If any party in a construction or operating permit proceeding raises an environmental issue, "the Applicant's Environmental Report and the Detailed Statement will be offered in evidence. The atomic safety and licensing board will make findings of fact on, and resolve, the matters in controversy . …" Para. 12, 1 ELR 46018. The board will not consider environmental issues unless a party raises them and will not take the Applicant's report on the Commission's statement into evidence. In these circumstances "… the Commissioner's responsibilities will be carried out in toto outside the hearing process." Para. 13, 1 ELR 46018.

Under AEC rules the applicant initiates the review of environmental factors. His lack of enthusiasm for identifying and researching potential environmental problems in connection with his license request is likely to be considerable, yet among the relevant parties no other is accorded more time for preparing its statement, or more influence over the content of the AEC draft statement. The AEC does not require its officials to make an independent assessment of environmental effects. Sister agencies have one month — 20 working days — in which to comment; state and local agencies have twice as long. Environmental effects are not considered at hearings unless raised by intervenors, or applicants. When issues are raised, the AEC board will make findings. At no point does the AEC specifically provide for an independent, agency-originated assessment of environmental impact, as contemplated by NEPA.

b. Federal Power Commission

Subject to certain limiting conditions, the Federal Power Commission requires applicants for licensure or relicensure under the Federal Power Act or the Natural Gas Act to prepare a "detailed statement of environmental factors" concerning the applicant's proposed activity. These factors are listed specifically in NEPA § 102(2)(C). "The staff shall make an initial review of the applicant's statement and issue, if necessary, and deficiency letters as to sufficiency of form, and cause the applicant's statement, as revised, to be made available to all [relevant] governmental bodies . …" § 2.81(b), 1 ELR 46026. The Applicant, the FPC staff and intervenors may supply environmental evidence for the record, but apparently not for circulation to other agencies. Intervenors may also submit detailed environmental statements.

In the case of contested applications, applicants, staff and/or intervenors may submit analyses and evaluations of environmental impacts. CEQ's comments, if any, must be served upon the staff and parties of record. The Presiding Examiner examines the submissions in light of the five key factors which must be evaluated under NEPA § 102(2)(C). The FPC then includes in its final order a detailed environmental statement. § 2.81(e)(2), 1 ELR 46026.

In noncontested applications the FPC staff prepares a detailed statement, serves it on the applicant, provides copies to the Council on Environmental Quality and allows federal and state agencies 30 days in which to comment on it. Within 10 more days the applicant, having been shown these comments, must submit any answers or comments which he has prepared. If it grants the application the FPC includes a detailed environmental statement in its order.

A serious problem exists with these guidelines when an application is contested. In this case, in order to construe the FPC's guidelines so that they are not in direct conflict with NEPA § 102, which requires the agency first to consult with order federal agencies and then to circulate its detailed statement to state and local governments, "applicant's detailed statement" must be considered as having been adopted by the FPC as its own. This construction is necessary, because under FPC guidelines no other similar document is prepared and circulated to federal, state and local agencies. The only detailed statements prepared by the FPC itself in a contested proceeding are released at the time a final decision onlicensure is made, too late to comply with NEPA's fundamental requirement that consideration and consultation take place in advance of agency action.

This creates a curious anomaly in FPC procedures. If a proceeding is contested — and it will be more hotly contested the more important the environmental issues at stake — the FPC will circulate applicant's detailed statement for comment to federal, state and local agencies, the FPC staff having reviewed, but as to form only, any deficiencies which may appear on the face of the statement. On the other hand, if an application is not contested — which indicates that it is of lesser environmental importance — the FPC will prepare an [1 ELR 10028] analysis, serve it on the applicant, the Council on Environmental Quality and appropriate federal, state and local agencies, and will consider any responses before issuing its final order. Thus it appears that in the circumstances in which the agency's role matters the most, the FPC intends to be the least involved. It would be better, if this more of complying with NEPA is preferred, if the practices were exactly reversed: reliance upon an applicant's statement is less objectionable when a contest does not exist over licensure or relicensure.

It is true that in the case of a contested proceeding an intervenor, such as an environmental group, may prepare a detailed statement similar to and at the same time as the one prepared by the applicant. Presumably, this statement would be circulated to the appropriate federal, state and local agencies. But the anomaly cited above remains. The FPC appears to avoid direct participation at the critical stage of interagency and intergovernmental consultation. It apparently does not gather information or raise issues; rather, it asks sister agencies and other tiers of government to develop the environmental impacts of a proposed project through comments on applicant's and (possibly) intervenor's claims as to the environmental harm. At no time does the FPC itself ask for the comments of federal, state and local agencies on how the FPC views a project or how it proposes to dispose of the issue.Yet this is precisely the agency action to which NEPA is directed.

c. Department of Transportation

The Department of the Interior in its procedural compliance guidelines states that "draft statements shall be prepared at the organizational level responsible for initiating or implementing the proposed action. … Where appropriate, draft statements shall be prepared by applicants for contracts, grants, loans, leases, licenses, or permits." § 8.A, B, 1 ELR 46033. This guideline leaves unclear at what phase of overall review the applicant's "draft statements" will be utilized. Other parts of the Department's guidelines require heads of bureaus and offices to "prepare" environmental statements. Perhaps the "draft statements" of § 8.B are intended for agency use in preparing its preliminary draft (or detailed) statement.In any event, such a procedure requires the applicant to take initiatives which are best launched by the agency or by parties with adverse environmental interests.

d. Department of the Interior

Procedures followed by the Department of the Interior are similar to those set out in the Department of Transportation's guidelines. Each applicant for a grant, loan, permit or other DOT approval is required to submit a "draft 102(2)(C) statement." §§ 7(b), 8(b), 1 ELR 46044-5. As with Interior, DOT's direct activities are covered in statements prepared by agency officers themselves. But where private parties are concerned, the same ambiguities and shortcomings apply.

e. Civil Aeronautics Board

The Civil Aeronautics Board in its procedural compliance statement appears to have construed its role under NEPA as purely adjudicatory. Applicants for CAB licenses are expected to submit evidence, including expert testimony in appropriate circumstances, relating to the environmental impact of their proposed operations. Other persons with environmental interests affected by the licensing are expected to do the same. 1 ELR 46019." … The examiner shall make findings of fact relating to all such evidence in light of statutory requirements and he shall also set forth his conclusions thereon." 1 ELR 46019. There is no indication that the CAB intends to take affirmative steps to identify environmental problems and develop independent information about them, nor does it intend apparently to make its environmental statement available prior to agency action: "… the Board intends to issue the environmental statement required by section 102(2)(C) of the Act as part of its decision at the conclusion of formal proceedings." 1 ELR 46019. CAB actions are important in the areas of noise and air pollution (which the CAB explicitly acknowledges), but also in land use, aesthetics and wildlife (which it does not clearly acknowledge).

The CAB is restrained by its enabling legislation from interfering with air carriers' decisions to change schedules, increase frequencies of service or introduce new equipment over CAB-authorized routes. The FAA regulates these physical aspects of air transportation, leaving the economic aspects of route allocation to the CAB. However, with respect to those decisions which the CAB can make that affect environmental quality, e.g., approving service for the first time to new areas, the above analysis still applies.