Public Comment on Environmental Impact Statements

Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) provides that preliminary environmental impact statements, along with the comments of appropriate federal, state and local agencies "shall be made available to the President, the Council on Environmental Quality and to the public …" CEQ in its Revised Guidelines for 102 Statements, issued April 23, 1971, 1 ELR 46049, requires that draft environmental impact statements be made available to the public at least 90 days prior to an administrative action and that final statements, with agency comments, be made public at least 30 days prior to action. Groups and individuals concerned about the environmental consequences of proposed federal agency actions thus have at the very least an opportunity, and at the most, a mandate to review environmental impact statements critically and inject their special insight into agency [1 ELR 10152] decision making processes. The importance of private comments on agency "102 statements" has not been overlooked in CEQ's Revised Guidelines which implement the provisions of Sec. 102(2)(C) of NEPA and provide for the submission of draft and final impact statements "together with all comments received thereon by the responsible agency from Federal, State, and local agencies and from private organizations and individuals…" CEQ Guidelines, 1 ELR 40051. In CEQ's eyes, at least, the comments of private environmentalists are of equal dignity with those of other federal agencies.

In many cases the thrust of private comment on 102 statements may be directed toward the involved agency, insuring that the agency has the full benfit of all available material relating to a proposed project in order that a more complete assessment of that project's environmental consequences may proceed within the agency itself. In other cases, however, the course the agency intends to pursue is already evident and the purpose of comment on impact statements may be to focus public or congressional attention on environmental values which may have been overlooked altogether or accorded only minimum weight by the agency. These purposes are not mutually exclusive. Well-reasoned comment on a deficient draft impact statement may influence not only the lead agency but its sister agencies which may wish to comment on the project, or which may have jurisdiction over certain portions of it despite the prediliction of the lead agency to proceed. Nor must recourse to public comment be the only avenue invoked by the aggrieved citizen or group. Formal or informal administrative proceedings may be pursued simultaneously, or, if the matter has already been the subject of final administrative determination, thoughtful and well-publicized comment may make the group or individual's resort to the courts more comprehensible to the public at large. Such action offsets the likelihood that if the project is sufficiently large, the public will already have been amply apprised of its benefits by spokesman for government or industry.

Four recent matters furnish additional insight into the scope and purpose of public comment on environmental impact statements:

1. Atomic testing on Amchitka.

As part of the development of the SPARTAN warhead component of America's anti-ballistic missile system, the Atomic Energy Commission initially announced plans to detonate underground a 5 megaton atomic device on Amchitka Island, part of Alaska's Aleutian chain. The project, called "Cannikin," was scheduled for late October, 1971. The project drew opposition from local residents, environmentalists and scientists fearful that the blast might trigger a large earthquake in the area, touch off a psuami wave that could endanger areas as remote as Hawaii and Japan, leak radioactive material into salt and fresh water as well as the air, or damage bird, mammal and marine wildlife in the vicinity of Amchitka. The AEC drafted its first environmental impact statement in April, 1970, a revised statement in November, 1970, and a final statements in June, 1971. Meanwhile, opponents of the project had formed The Committee for Nuclear Responsibility, Inc., which carefully reviewed the AEC's series of impact statements and found each to be inaccurate and insufficient. An eight-page, single-spaced critique of the final AEC statement was drafted by the Committee and circulated to the national news media together with a shorter summary of objections to the project. This public comment accompanied attempts to mobilize congressional opposition to Cannikin and the institution of legal proceedings challenging the AEC's compliance with NEPA provisions — specifically the adequacy of its 102 statement — in the U.S. District Court for the District of Columbia. The three-pronged attack has to date proven remarkably successful. Editorials have appeared in the New York Times and the Washington Post and in several smaller newspapers opposing the Cannikin test. Congress, while appropriating funds for the test, delayed the event itself until May, 1972, unless the President gives his direct approval for an earlier date. In The Committee for Nuclear Responsibility Inc. v. Seaborg, 1 ELR 20469 (D.C. Cir. Oct. 5, 1971), the court of appeals held that by appropriating funds Congress had not intended to excuse the AEC from compliance with NEPA provisions, reversing a district court decision and remanding the case for further consideration. And in Mink v. Environmental Protection Agency, 1 ELR 20527 (D.C. Cir. Oct. 15, 1971), the same court ruled, in a case brought individually and in their official capacities by 33 congressmen, that plaintiffs were entitled under the Freedom of Information Act to receive copies of studies and factual memoranda prepared by EPA for the President and not specifically included under pertinent exemptions of the Act. The handling of Project Cannikin, in sum, represents a judicious mingling of legal and nonlegal action by concerned groups and individuals seeking to halt what they regard as an environmentally unsound venture.

2. The AEC's Liquid Metal Fast Breeder Reactor (LMFBR) program.

On May 25, 1971, the Scientists' Institute for Public Information (SIPI) filed suit to force AEC compliance with NEPA in connection with the AEC's request for congressional authorization and funding for two pilot projects in its liquid-metal fast-breeder reactor (LMFBR) program. Scientists' Institute for Public Information v. Atomic Energy Commission, 1 ELR Dig. [182] (D.D.C. filed May 25, 1971). (See also Comment, 1 ELR 10090.) Specifically, SIPI alleged that the AEC had embarked upon a $2.5 billion program to develop LMFBRs for commercial application without first preparing a detailed 102 [1 ELR 10153] statement on the program or alternatives to it. A week after the SIPI suit was filed, President Nixon, in his Energy Message to Congress, declared, "Our best hope today for meeting the Nation's growing demand for economical clean energy lies with the fast breeder." On July 12, 1971 the AEC circulated a draft environmental impact statement and then filed a motion in the legal action claiming the suit was moot. SIPI promptly announced it would fight that motion in court and on September 26, 1971, issued an extremely detailed critique of the AEC draft statement, together with a press release in which its chairman, Dr. Barry Commoner, branded the AEC statement, "superficial, misleading and extremely inadequate." In its critique, SIPI charged the AEC with failing adequately to consider the disposal of high-level radioactive waste, the impact of waste-heat on the environment, various plutonium hazards, and the possibility that plutonium in the fuel cycle might accidentally achieve a critical mass, thus causing a nuclear explosion. The greatest inadequacy of the AEC statement, SIPI alleged, was its failure to consider the environmental impact of the LMFBR program as a whole and its concentration instead on plant-by-plant analysis.

Some indication that environmentalists' tactics of buttressing legal attacks on inadequate AEC procedures with analytical comments on 102 statements were beginning to influence the manner in which the AEC conceived its own role occurred on October 20, 1971 when Dr. James R. Schlessinger, the new AEC chairman, told a joint meeting of the Atomic Industrial Forum and the American Nuclear Society in Bal Harbour, Florida, that the Commission had shifted its role from simply promoting atomic energy to protecting the public interest in nuclear affairs. "From its inception the AEC has fostered and protected the nuclear industry. It is not the role of the AEC to solve industry's problems," Dr. Schlessinger said. Later in his address, he added: "In the weeks since I came into this job I have been impressed on a number of occasions by the failure of the industry and [the AEC] properly to distinguish between the role and responsibility of the AEC … Environmentalists have raised many legitimate questions. A number have bad manners, but I believe broadside diatribes against environmentalists to be not only in bad taste but wrong."

3. The Trans-Alaska pipeline.

Since April of last year the Department of the Interior has been under court injunction against issuing any right-of-way across federal lands in connection with construction of the proposed 800 mile long trans-Alaska pipeline from Prudhoe Bay to Valdez due in part to grave deficiencies in the Department's impact statement issued when it attempted to grant a permit for construction of an auxiliary service road. See Wilderness Society v. Hickel, 1 ELR 20042 (D.D.C. April 23, 1970). In January, 1971 the Department issued a draft environmental impact statement on the project as a whole and announced plans to conduct hearings on the project in Washington, D.C. and Anchorage and Fairbanks, Alaska. Critical comment on the Department's draft statement by environmental groups was largely reserved for extensive presentation at these hearings. Such hearings, not expressly mandated by NEPA itself, but held as a matter of course by many administrative agencies in projects involving important environmental issues, provide a format for examination of 102 statements which may be superior to the mere issuance of press releases and underlying decumentary critiques. For one thing, the hearings are likely to receive more extensive press coverage.For another, presentations at such hearings become part of the administrative record of the case and may be useful to a reviewing court should litigation eventually ensue. In the trans-Alaska pipeline case, the extensive critiques offered by several conservation groups have apparently given the Interior Department second thoughts about hasty grant of the right-of-way. At the very least, such a grant, when and if issued, is likely to be accompanied by one of the most comprehensive environmental analyses ever attached to an agency project. This in itself is an important achievement for those whose primary concern is to insure that an "environmental ethic" is built into agency decision-making processes.

4. The Greene County, N.Y. transmission line.

Of the thousands of environmental impact statements that have been filed since NEPA became effective, a substantial number have been prepared by parties with a direct financial stake in the viability of the project and adopted substantially intact by the regulatory agency. See Comment, 1 ELR 10025-26. For that reason, it may often be more important for environmentalists to focus their attention upon the statement prepared by an applicant before an agency than upon the final statement of the agency itself. To achieve this purpose the Planning Commission of Greene County, N.Y. made its objections to the "Environmental Report" filed by the Power Authority of the State of New York (PASNY) in connection with PASNY's application to construct an overhead high voltage transmission line between Gilboa and Leeds, N.Y. through Greene County to the Federal Power Commission which is now considering the application. In re Power Authority of the State of New York, Project No. 2685 (Before the Federal Power Commission, May 4, 1971). An explanation of the environmental position of the Greene County Planning board was filed with the FPC on June 16, 1971. In its explanation, the Planning Board criticizes the environmental report filed May 26, 1971 for glibly dismissing the adverse visual impact of the proposed line across miles of rural New York State and for failing adequately to consider the alternatives of not allowing the project to go through, underground construction, or different routes or design. The [1 ELR 10154] Planning Board also asserts that PASNY gave insufficient consideration to the desirable balance between short-term use of man's environment and the maintenance of long-term productivity as well as to the irretrievable commitment of resources involved in the project.

A critique which becomes part of the administrative record has the advantages discussed above in connection with the trans-Alaska pipeline and may be the most reasonable option open to environmentalists where, as in the PASNY application, the project involved is of a magnitude unlikely to stir national debate. And again, particularly where formal administrative hearings are required by statute, the approach has the twin results of permitting the agency to consider values it might otherwise have overlooked, while simultaneously building a record appropriate for judicial review in the event of plain administrative error.