Section 309 of the Clean Air Act: EPA's duty to comment on environmental impacts

At present, and for some time to come, the responsibilities of the federal agency with the duty to prepare an environmental impact statement will remain the key focus in the implementation of the National Environmental Policy Act. Important questions have not been satisfactorily answered, such as whether those agencies may continue to delegate preparation of early draft statements to private parties; whether agencies should ask the public through hearings or otherwise for facts and assessments of environmental impacts before agency drafts are written; whether agencies will be allowed to determine between themselves which of them is the "lead" agency; whether cost-benefit analyses and other non-environmental materials are part of the "102 record"; and whether agencies are constrained to make final decisions which square with and evolve from the 102(2)(C) process. However, further attention to agencies' duties under NEPA will undoubtedly be accompanied by similar attention to the duties of agencies which under § 102 must comment upon the agency's draft impact statements. NEPA clearly provides for inter-agency consultation at all levels of government before a potentially harmful federal action may be taken, so that the full resources of [1 ELR 10147] government — particularly federal government — are used to make possible a more informed, environmentally sound decision. Without the creative tension between sister agencies which NEPA envisions, federal agencies will develop, not one national environmental policy, as NEPA requires, but as many distinct policies as agency missions and agency environmental viewpoints suggest.

Congress added § 309 to the Clean Air Act in 1971 in order to make explicit that the Administrator of the newly-formed Environmental Protection Agency has a duty to examine areas which his statutory authority directly or indirectly reaches and then to comment in writing upon the possible environmental impact in these areas of all legislative proposals developed by federal agencies, all proposed federal agency guidelines, all new federal construction projects, and all other proposed federal action to which § 102(2)(C) of NEPA applies. After his review the Administrator has to make his comments public, and if he finds the proposal environmentally "unsatisfactory," he has to publish this finding and "refer" the matter to the Council on Environmental Quality.

By enacting § 309 Congress amended and clarified NEPA through a short and to date relatively obscure section of the Clean Air Act.¹ Yet the section is crucially important. After it is implemented § 309 will bring out into the open for further evaluation the inevitable differences of opinion between "developmental" and "environmental" agencies. The section thus crosses the t's and dots the i's of NEPA's premise that responsible decision-making is more likely to occur when agencies assist each other and the public is informed. The text of § 309, however, lacks the clarity and grace which the draftsman imparted to portions of NEPA:

Sec. 309. (a) The Administrator shall review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this Act or other provisions of the authority of the Administrator, contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal projects for construction and any major Federal agency action other than a project for construction to which section 102(2)(C) of Public Law 91-190 applies, and (3) proposed regulations published by any department or agency of the Federal Government. Such written comment shall be made public at the conclusion of any such review.

(b) In the event the Administrator determines that any such legislation, action, or regulation is unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the Council on Environmental Quality.

The motivation behind the inclusion of § 309 in the Clean Air Amendments of 1971 emerges from hearings before the Senate Public Works Committee. Because § 309 largely originated in the Senate, and because the House-Senate Conference adopted the Senate version on § 309 (with one change), the genesis of § 309 in the Senate deserves closer attention. During hearings on the nomination of William Ruckelshaus as Administrator of EPA, Senator Muskie expressed concern that environmental improvement agencies gave oral, unwritten comments to the Department of Transportation on its draft impact statement on the supersonic transport aircraft (SST). Senate Comm. on Public Works, 91st Cong., 2d Sess., Nomination of William Ruckelshaus 16 (Comm. Print 1970). Senator Muskie cited § 102(2)(C) of NEPA and asserted that the that the intent of NEPA was to have the comments of "environmental" agencies accompany the developmental agencies' draft impact statements throughout the decision process. Clearly upset that the Senate was being denied the information which § 102(2)(C) apparently guaranteed, Senator Muskie pressed Mr. Ruckelshaus to spell out how EPA would interpret its duty to comment on draft statements in the future. Mr. Ruckelshaus pointed out that NEPA was ambiguous about how agency comments should be handled and that the act did not clearly require that comments be made public before the final decision was made (p. 18.) Senator Jackson, who was present at the hearing, then confirmed what Mr. Ruckelshaus said about NEPA's ambiguities (p. 19.) Later, Senator Muskie cited § 309 (then § 310) as resolving the ambiguities inherent in § 102 of NEPA. He went on to say to Mr. Ruckelshaus that § 309:

… makes you a self-starter, whenever you, unilaterally, see an environmental risk. You are given the responsibility to raise the red flag.

What is involved here is not an input to somebody else's decision and somebody else's statement. This is an issue to be taken by you.

The reason we are making you independent is so that you will be independent. I think the Council and you have a responsibility for seeing to it that whenever an environmental evaluation is made, whether pursuant to section 102 or this, [§ 309] that that evaluation enters the public domain as soon as you have made it.

To wait until it can be buried in some promotional or development agency's report or statement is to give it less than the emphasis we intended for it. (p. 45.)

Senator Muskie viewed § 309, not only as requiring comments on 102 statements, but upon any environmental risk, whether or not NEPA is involved. He went on to say:

Moreover, I think even if an activity started 50 years ago, if there is reason to look at it in the light of current environmental concerns, it is your responsibility to be a self-starter in that connection and undertake to use whatever authority you have to restrain or even to prevent such an ongoing activity if, in your judgment, the judgments of your people, there is an unfortunate environmental impact.

I don't think the fact that the first decision was taken 50 years ago in any way dilutes your responsibility. (p. 56.)

[1 ELR 10148]

According to members of the Senate Public Works Committee staff, the conflict which surfaced in the confirmation hearings was only a part of the Committee's discontent with the requirements for public information and comment which § 102(2)(C) of NEPA imposed. Meetings between Senator Jackson, Senator Muskie and other committee members and between staffs had attempted to shed light on this and other ambiguities in the implementation of § 102(2)(C) of NEPA. See the criticisms of the procedures for "draft" and "final" statements in Senate Committee on Public Works, Public Works Authorizations, 1970, Rivers and Harbors — Flood Control and Multi-Purpose Projects, S. Rep. No. 91-1422, 91st Cong., 2d Sess. 5-6 (1970). At the time of the confirmation hearing difficulties were exacerbated by CEQ guidelines which appeared to limit public access to 102 statements, including "environmental" agency comments upon them, to the "final" statements submitted to CEQ. (This provision was closely analyzed, with a recommendation that it be changed, in an early ELR comment. See 1 ELR 10005.) Present CEQ guidelines encourage the earliest practicable release of agency analyses, but require only that draft statements be released at least 90 days, and final statements at least 30 days, before action is taken. 1 ELR 46051, § 10(3).

The legislative history of § 309 is meager; however, the Report of the Senate Public Works Committee does confirm the consensus expressed above. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 43 (1970). The Committee's discussion of the intent behind § 309 (then § 310) focuses upon the role of the expert "environmental agencies" in the preparation of impact statements, stressing that "it is essential that mission-oriented Federal agencies have access to environmental expertise in order to give adequate consideration to environmental factors." (p. 43.) Senator Muskie, in submitting the conference report to the Senate, was more explicit in his summary of the conference provisions:

The conference agreement thus removes the ambiguity concerning the public release of such reviews and comments which has emerged during the debate on appropriations for the supersonic transport. Those comments must be made public when the Environmental Protection Agency completes its review — not when the environmental impact agency decides the public should be informed. 116 Cong. Rec. S 20602 (daily ed. Dec. 18, 1970)

Within this background the enactment of § 309 appears largely declaratory of the intent of NEPA, a statute which is within the jurisdiction of the Senate Committee on Interior and Insular Affairs (of which Senator Jackson is chairman), by amending the Clean Air Act, which is within the jurisdiction of the Senate Public Works Committee (specifically, of the Subcommittee on Air and Water Pollution, of which Senator Muskie is Chairman). The potential clash between the jurisdiction (and Senators) of course is not new. See ELR Comment on the Muskie-Jackson Compromise over § 103 of NEPA, 1 ELR 10127. From the tenor of the remarks set out above, Senator Muskie apparently would have liked to have seen § 309 included in the legislative authority of every "environmental" agency. However, the Senate Public Works Committee in amending the Clean Air Act could only require early, public comment from the Administrator of EPA. Fortunately, EPA's authority is so broad that practically every draft impact statement may receive timely, publicly available analysis from at least that one "environmental" agency. See Reorg. Plan No. 3 (July 9, 1970), 1 ELR 48001.

Scope of the Administrator's authority to comment.

Because the legislative history of § 309 is brief, it is difficult to resolve certain minor issues about its meaning. The Conference Report points out that the conferees adopted substantially the Senate version of the section. H.R. Rep. No. 91-1783, 91st Cong., 2d Sess. 58 (1970). The Conference report simply states that the Administrator is required to review and comment in writing on federal actions which affect the environment and to make his comments public after review is completed. The Senate Report, supra, adds little, except to stress that "environmental" agencies can make their expertise more available and useful to "mission-oriented" ones if the provisions of § 309 are widely applied (pp. 43-44). Hearings in both houses do not mention the section. Hence, the scope of the Administrator's authority to comment deserves further analysis.

Section 309 states that the Administrator's authority to comment is as extensive as his overall "duties and responsibilities." § 309 (a). He may comment on "any matter," arising in any department or agency, pressumably including independent agencies, since NEPA applies to them. The range of comment is as broad as are the possibilities for federal activity — proposals for legislation; federal construction projects; proposed federal regulation; federal contracts, grants, subsidies, loans, or other funding assistance; federal leases, permits, licenses, certificates or other entitlements — in short, the broad range of federal activity to which NEPA is applied. See CEQ final guidelines § 5, 36 Fed. Reg. 7724 (April 23, 1971), 1 ELR 46049. The Administrator's specific authority under Reorganization Plan Number 3, supra, extends to air, water, pesticides, radiation, solid wastes and noise. Obviously, "matter relating to" this wide scope of authority will occur in a vast number of impact statements. The section-by-section analysis of the Clean Air Act in the Senate Report, supra, states that the Administrator may comment where the environmental [1 ELR 10149] impact in question relates "directly or indirectly" (emphasis supplied) to the Secretary 's — now the Administrator's — authority. (p. 66.)

Apparently, some non-major federal activities, which under NEPA and its guidelines do not require the preparation of § 102 impact statements, must be the subject of "§ 309 statements," if such actions have an "environmental impact." The Senate and conference reports are silent on this point; however, the remarks of Senator Muskie at Mr. Ruckelshaus's confirmation hearing, supra, support this position. Clearly Congress could go beyond the NEPA requirement that only "significant" federal action be the subject of 102 statements, and with § 309 it appears to have done so in three cases, because EPA's comment under § 309 may be briefer and less procedurally complex than the full inter-governmental 102 procedure, obviating the objection that minor federal action should not be the subject of extensive review procedures, and because EPA with its special expertise in environmental matters may on occasion have to take the initiative to point out the threatened environmental impact of federal activity. These three areas are: (1) proposed legislation developed by federal agencies, (2) newly authorized federal construction, (3) proposed agency regulations. § 309(a).

In keeping with this wide scope of authority, Mr. George Marienthal, Acting Director of EPA's Office of Federal Activities, has informed ELR that all 102 statements sent to EPA will receive at least some comment, the comment increasing in length and complexity with EPA's increasing expertise in its subject-matter. (EPA's administrative arrangements to date for implementing § 309 are discussed, infra.) A large number of 102 statements filed to date are obviously within the Administrator's mandate to comment. The CEQ in its monthly 102 Monitor keeps a running count of statements filed in 25 categories by project type. Of the 25 categories nine are extremely likely to touch upon matters directly within the Administrator's mandate — AEC nuclear development; aircraft, ships and vehicles; airports; bridge permits; pesticides and herbicides; power (hydroelectric and nuclear); waste disposal; water; weather modification. These account for 41% of the final and draft statements filed as of September 1, 1971 — 739 out of 1,761. See CEQ 102 Monitor (September, 1971) pp. 139-40. But the remaining statements are certainly likely to touch in some indirect respect on the Administrator's authority to comment under § 309. For example, 873 statements were filed for "roads." Air and water pollution of course are very likely to be increased by road construction. Thus, EPA's policy of commenting upon all statements received by it is soundly based.

One may even ask if EPA can refuse to comment on a statement submitted to it where any important environmental impact is involved, regardless of EPA's explicit responsibility for six fields only. By virtue of its commanding presence among federal "environmental" agencies, it will necessarily have expertise in land use; highway and railway impacts; parks, wildlife refuges and recreation facilities; mining; mass transit; forestry, and other areas of indirect but important concern to the agency. Thus it is not surprising that EPA has never explained its failure to comment on controversial impacts by retreating within a narrow construction of its authority. See, e.g., Kenworthy, "Environmental Chief Silent on 2 U.S. Plans," N.Y. Times (Saturday, August 14, 1971), p. 49. Further, if the Administrator is allowed to address himself authoritatively on some occasions to issues "outside" his authority, using his authority as a sword, he should not be allowed to shield himself on another occasion which demands a probing § 309 comment on a controversial issue. See, e.g., "Energy and the Environment," an address by the Administrator to the World Energy Conference, Washington, D.C. (September 24, 1971).

A problem arises, however, if an agency refuses either to develop a 102 statement or, having developed it, to refer it to EPA for comment. This is true even though CEQ Final Guidelines call for the establishment of agency procedures and guidelines for submitting relevant proposals, drafts and reports to EPA under § 309. EPA's procedures, discussed infra, only concern statements submitted to it for comment. Under § 309, EPA is required to comment only if a 102 statement is required by NEPA (except that it may comment, even if a statement is not required, on newly authorized federal construction, proposed legislation, and proposed guidelines.) EPA apparently has no authority to force the preparation of a statement. Nor has it the authority to compel an agency to supply existing statements. However, § 102(2)(C) of NEPA and CEQ guidelines clearly require that agencies forward drafts to sister agencies for comment, and if necessary a court might order the production of the draft. And presumably, under § 309, both the reluctant agency and Administrator could be required to conduct a thoroughgoing § 309 review of proposed legislation, proposed regulations, and newly authorized federal construction, regardless of NEPA's applicability.

Other sanctions are possible. For instance, the Senate Public Works Committee will not consider any proposed legislation or action originating with an agency until § 102 and § 309 statements have been prepared:

Rule 13. Environmental Impact Statements. — No project shall be approved or other action taken unless the Committee has received an environmental impact statement relative to it, in accordance with Section 102 (2) (C) of the National Environmental Policy Act of 1970, and the written comments of the Administrator of [1 ELR 10150] the Environmental Protection Agency, in accordance with Section 309 of the Clean Air Act. United States Senate Committee on Public Works, Rules of Procedure, p. 3.

"Retroactivity"

"Retroactive" effect is a difficult concept to which to impact meaning without considering specific examples; however, § 309 clearly was intended to have at least the same applicability as NEPA to the most recent in a series of decisions that may have begun before NEPA and the Clean Air Amendments of 1970 were enacted. So far as § 309 is concerned, the test is whether EPA's comments might provide the decision-maker with facts and perspectives which will enable him to make the next decision in the chain a more environmentally informed one. Whether the decision-making process was begun before § 309 became law is irrelevant; that section is specifically designed to apply where a meaningful opportunity to improve the quality of a pending decision still exists. See CEQ Final Guidelines, supra, § 5(b), 1 ELR 46049. See Note, Retroactive Application of the National Environmental Policy Act of 1969, 69 Mich. L. Rev. 732 (1971) and cases cited therein.

"Unsatisfactory" impact and referral to CEQ

Section 309(b) requires the Administrator to publish his determination and "refer" the matter to the CEQ whenever in a § 309 review he determines that proposed legislation, action or regulation is "unsatisfactory from the standpoint of public health or welfare or environmental quality." The only significant change in the Senate version of § 309 was the elimination of a requirement that the Council then make a public recommendation to the President.

The importance of the negative "referral" by the Administrator to the CEQ cannot be overstressed. Section 309 has two separate subsections. The first sets at the general responsibility of the Administrator to comment publicly in writing on a range of federal activities. Then subsection (b) separates out for special attention those comments in which the Administrator has made a determination that the proposed activity will have an unsatisfactory environmental impact. Unless § 309(b) is to be read as simply declaratory of § 102 (2) (C) of NEPA, which already requires mere transmittal of comments with the final 102 statements to the CEQ, the "referral" and the "determination" which § 309(b) mentions must be read as requiring the Administrator to do something more. Otherwise, § 309(b) is nugatory. Section 309(b) apparently requires the Administrator to draw the CEQ's attention to proposed federal action with serious environmental impacts so that the final decision will be made on a higher administrative level than the agency level at which it would ordinarily be made. Thus under § 309(b) the Administrator has been given an effective way to have environmental impacts decided in serious cases at cabinet level and at the White House. If an agency disregards the Administrator's finding and proceeds to decide a matter and take action, even if it has waited the full 90 days which CEQ guidelines provide, a negative comment from the Administrator is apparent grounds for restraining the agency until the CEQ has had an opportunity to arrange for a higher-level administrative or Presidential resolution of the controversy. A negative 309 comment shows inter-agency discord and is strong evidence that the administrative process has not actually agreed, or "decided", the matter, so that the injurious federal action does not have the go-ahead which it requires.

Put another way, NEPA implements in federal decision-making a finely-tuned balancing process which requires federal agencies to weigh a vast range of environmental values against antithetical values before agency action may be taken. See Calvert Cliffs Coordinating Committee v. AEC, 1 ELR 20346 (1971). NEPA acknowledges, however, that such a weighing process imposes special responsibilities on agencies, in particular on technically and developmentally oriented ones, and calls upon "environmental" agencies to assist them through the § 102(2)(C) comment process. Section 309(b) allows the Administrator of EPA to ask for an administrative review of a proposed decision which has apparently failed to balance environmental factors adequately. Since developmental or technical agency expertise is of little help in such a diverse final weighing process, decision must be at a higher administrative level where many different agency viewpoints and kinds of expertise may be brought into play.

Guidelines for Section 309

Guidelines for the implementation of § 309 appear as § 8 of the CEQ's Final Guidelines, 1 ELR 46049. More detailed intra-agency procedures for 309 comments were approved by Robert W. Fri, Deputy Administrator, on October 18, 1971. At the time of writing of this Comment they had not been published in the Federal Register.

The CEQ guidelines allow the Administrator 45 days in which to comment. They are silent on the effect of failure to comment. The guidelines further provide that copies of the Administrator's comment must be submitted to the responsible federal agency and CEQ. Thecomment must be summarized for notice publication in the Federal Register. EPA must make copies available to the public.

EPA's memorandum, entitled, "Release of EPA Comments on Environmental Impact Statements" (October 18, 1971), sets out interim policies and procedures for making public EPA's comments on draft impact statements. EPA Order 1240.1 is currently being [1 ELR 10151] revised to reflect the intent of this memorandum.

EPA plans to publish bi-weekly in the Federal Register a notice which lists all impact statements upon which EPA has prepared written comments during the previous two weeks. A similar notice, combining several Federal Register notices, will be published monthly in CEQ's 102 Monitor. Each notice will include an address from which the public may obtain copies of EPA comments on each impact statement. Each summary will briefly describe the contents of the comment.

EPA plans to group comments in four categories, set out in Attachment A to its memorandum:

11) General Agreement/Lack of Objection

EPA generally (a) has no objections to the proposed action as described in the draft impact statement, (b) suggests only minor changes in the proposed action or the draft impact statement, or (c) has no comments, pro or con, on the draft impact statement or the proposed action.

2) Inadequate Information

EPA feels that the draft impact statement does not contain adequate information to assess fully the environmental impact of the proposed action. EPA's comments call for more information about the potential environmental hazards addressed in the statement, or ask that a potential environmental hazard be addressed since it was not addressed in the draft statement.

3) Major Changes Necessary

EPA takes issue with the proposed action unless major changes or additions are made which will adequately protect the environment. EPA feels that the proposed action, as described in the draft statement, needs major revisions from an environmental viewpoint.

4) Unsatisfactory

EPA feels that the proposed action is unsatisfactory because of its potentially harmful effect on the environment. Furthermore, EPA feels that the potential safeguards which might be utilized may not adequately protect the environment from the hazards arising from this action.EPA recommends that alternatives to the action be analyzed further (including the possibility of no action at all).

Elsewhere, the memorandum states that categories three and four show serious EPA disagreement with the course of action proposed:

Categories 3 and 4 correspond to serious EPA disagreement with the proposed action. In cases where EPA makes comments falling into category 3 or 4, additional follow-up will be required to fulfill EPA's responsibilities under section 309(b). In those cases, the principal reviewer should request a copy of the final impact statement. That final statement should then be analyzed to determine if appropriate changes were made in the project. A copy of the resulting analysis should then be forwarded to the Office of Federal Activities. The Office of Federal Activities will then work with CEQ to fulfill our responsibilities under section 309(b). Appendix B, p. 3.

The statute requires that the Administrator either find proposed federal activity "unsatisfactory" or, presumably, satisfactory. The categories set out here apparently are not designed to help make that determination, but rather are intended to enable EPA to decide which projects merit an attempt to mitigate their impact before a final "determination" under § 309(b) is made.

Two final words of caution are relevant to the subsequent implementation of § 309. First, citizens' suits to force EPA to implement § 309 or to comment on draft 102 statements are subject to the provisions of § 304 of the Clean Air Act, which appears at 1 ELR 41224, and to proposed guidelines under that section which apparently must be followed so far as notice provisions are concerned until made final. See 36 Fed. Reg. 12866 (July 8, 1971). Sixty days notice to the Administrator of intent to bring action is required. The notice must include the nature of the legal action contemplated, the federal district court in which the action will be filed, and the names and addresses of all plaintiffs. The § 304 citizen suit provision will receive more detailed treatment in subsequent issues of ELR.

Second, the advantages of comment by "environmental" agencies such as EPA upon "developmental" agencies" activities may be somewhat offset by attempts by "developmental" agencies to escape their responsibilities under NEPA to do their own environmental groundwork and fact-finding. Developmental agencies may attempt to thrust the burden of studying environmental risks on sister "environmental" agencies. Section 309 and § 102 should not be used to achieve this result, which would frustrate NEPA's paramount objective of making every federal agency in some sense an "environmental" agency. Thus, attempts to force careful EPA analysis of the environmental impacts of the activities of sister agencies should always be accompanied with a careful review of the exacting analysis of environmental impacts which the lead agency itself is plainly required to conduct under NEPA.

1. When asked about progress in implementing § 309 several months after its passage, a highly placed EPA official responsible for the overall performance of the agency, asked, "What is section 309?"