Title I of the National Environmental Policy Act of 1969¹ (hereafter NEPA) imposes a broad scope of environmental responsibility upon federal agencies. Unlike other environmental protection statutes which begin with broad declarations of purpose but then limit federal agencies to specific duties, NEPA declares a comprehensive national environmental policy and imposes both procedural and substantive duties on federal agencies to implement that policy.² Thus the responsibility of federal agencies under NEPA is as broad as the declaration of environmental policy.

Judicial enforcement of the duties imposed by NEPA will be necessary if, as is likely, the federal agencies concerned do not readily abandon entrenched attitudes and procedures that currently result in environmental degradation. The broad reach of NEPA's policy, and the necessity for judicial enforcement, will then most certainly result in environmental litigation which asks the courts to determine whether agencies have fulfilled their responsibility under NEPA to protect the environment. Environmental attorneys have an obligation to aid courts in their task by adopting a rational judicial strategy for the use of NEPA.

These comments indicate that NEPA can be examined from at least three different perspectives. First, the act should be analyzed to determine in exactly what ways Congress intended to change the behavior of federal agencies. After briefly setting out the national environmental policy in section A, section B pursues the congressional perspective by examining the national environmental policy and the duties imposed by NEPA for the implementation of that policy. The tools of analysis for this first perspective quite naturally are statutory interpretation and research into legislative history.

Second, NEPA must be examined to determine how the courts might enforce its provisions. Of course such an analysis must be speculative and suggestive at this time, because judicial precedent is only beginning to accumulate and because judicial attitudes will probably go through a process of evolution. The tools of analysis for this perspective include the study of existing precedent and the projection of current trends and attitudes upon future judicial behavior. The last part of this article, section C, examines NEPA from this perspective.

Third, a discussion of NEPA affords an opportunity to devise an optimum judicial strategy for judicial enforcement of the act's provisions. Such an analysis involves the study of current barriers to judicial enforcement and the creation of judicial theories to overcome those barriers. Section C of this article also probes this perspective but does not nearly exhaust it. More work on a judicial strategy for NEPA must be done.

If one fails to distinguish among the above perspectives, NEPA can be viewed as a simple, hortatory statute which is unable to overcome the problem of obtaining adequate enforcement. Congress did not intend such a result in enacting NEPA. A careful reading of the act and its legislative history shows clearly that Congress meant what it said. The key question therefore is not whether the act is merely hortatory, but whether the courts can be induced to enforce congressional intent.

A. THE NATIONAL ENVIRONMENTAL POLICY

Section 101 of NEPA declares the national environmental policy:

Sec. 101 (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource [1 ELR 50036] exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

The policy was declared to insure that federal action does not contribute to environmental problems. Section 101 (a) recognizes "the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances. …" The Senate Committee on Interior and Insular Affairs report on NEPA gave a detailed statement of the types of problems that NEPA was designed to solve:

Examples of the rising public concern over the manner in which Federal policies and activities have contributed to environmental decay and degradation may be seen in the Santa Barbara oil well blowout; the current controversy over the lack of an assured water supply and the impact of a super-jet airport on the Everglades National Park; the proliferation of pesticides and other chemicals; the indiscriminate siting of steam fired power-plants and other units of heavy industry; the pollution of the Nation's rivers, bays, lakes and estuaries; the loss of publicly owned seashores, open spaces, and other irreplaceable natural assets to industry, commercial users, and developers; rising levels of air pollution; federally sponsored or aided construction activities such as highways, airports, and other public works projects which proceed without reference to the desires and aspirations of local people.

* * *

S. 1075 is designed to deal with many of the basic causes of these increasingly troublesome and often critical problems of domestic policy.

* * *

S. 1075 is also designed to deal with the long-range implications of many of the critical environmental problems which have caused great concern in recent years.³

The national environmental policy focuses on "restoring and maintaining" (Sec. 101(a)) certain environmental qualities, including safety, health, productivity, diversity, and esthetically and culturally pleasing surroundings. Congress emphasized the dual focus of the policy by stating in section 2 that one of the purposes of the Act is "to promote efforts which will prevent or eliminate damage to the environment and biosphere. …"⁴ The dual focus on the prevention and elimination of environmental damage, when coupled with the duty of federal officials to implement the national environmental policy, requires such officials and agencies to rectify past instances of environmental abuse as well as to prevent future abuse.

B. DUTIES OF FEDERAL AGENCIES TO IMPLEMENT THE POLICY

Congress went beyond a mere statement of national [1 ELR 50037] policy⁵ by charging federal agencies with substantive and procedural duties in section 102 of NEPA.⁶ Congress manifested its intent that federal agencies implement the national environmental policy (substantive duty) and abide by the procedures established by NEPA (procedural duties) in both the language of the Act⁷ and in its legislative history.⁸

The phrase "to the fullest extent possible," which modifies all section 102 duties, does not mean that federal agencies have discretionary leeway in complying with substantive or procedural duties. The legislative history clearly indicates that the phrase was inserted to require agencies to implement the national environmental policy unless precluded by statute from doing so.⁹ If implementation of part of the policy is precluded by statute, the agency still must comply insofar as possible.¹⁰ If an agency determines that it is precluded by statute from implementing the policy, in whole or in part, section 103 requires it to "propose to the President not later than July 1, 1971, such measures as may be necessary to bring its authority and policies into conformity with the intent, purposes and procedures of the bill."¹¹

Section 102 duties apply to a broad range of agencies and agency action. Congress intended that all federal officials and agencies,¹² including quasijudicial independent regulatory commissions,¹³ with the exception of environmental protection [1 ELR 50038] agencies,¹⁴ comply with the requirements of NEPA. The national environmental policy is to be applied to all decisions which have an environmental impact, including those relating to loans, grants, contracts, leases, licenses, or permits.¹⁵

1. Substantive Duty

Under section 102 (1), all federal officials and agencies have a duty to implement the national environmental policy:

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act. …

Senator Henry Jackson, sponsor of NEPA and chairman of the Senate Committee on Interior and Insular Affairs, which held hearings on the bill, pointed out that NEPA "… provides a statutory foundation to which administrators may refer … for guidance in making decisions which find environmental values in conflict with other values."¹⁶ Thus, when making decisions which have an environmental impact, federal agencies are required to act in a manner calculated to restore and maintain environmental quality.

Since conflicts between values must be identified before NEPA can be applied, federal officials and agencies must consider whether adverse environmental impact will result before making any decision which affects the environment. Section 102(2) (C) requires that such consideration be included in a "detailed statement" when "legislative proposals" or "other major Federal action" are involved.¹⁷ But the policy itself and the duty of federal agencies to implement that policy require that adverse environmental impacts be considered even where section 102(2)(C) statements are not required. Federal decision-makers cannot restore or maintain environmental quality, as required by the Act, unless the environmental consequences of proposed decisions are evaluated. Where a section 102(2)(C) statement is not required, the agency's consideration of environmental effects must be made part of a reviewable record upon which the agency bases its ultimate decision.¹⁸

Federal officials must thoroughly analyze the environmental impact of proposed actions. Total failure to consider an important environmental issue or inadequate consideration of such an issue should be sufficient grounds to find noncompliance with NEPA, because, had the issue been adequately considered, the decision might be different. In legal [1 ELR 50039] terminology, if a federal administrator fails to consider adequately the environmental impact of proposed action, the decision to take such action would be arbitrary and capricious because of the lack of substantial evidence that adverse environmental effects would not occur or could not be prevented. Agencies can no longer justify their action on the grounds of ignorance of environmental effects. If there is inadequate knowledge about a particular problem, NEPA provides ample authority to obtain the needed information.¹⁹

If an adequate consideration of environmental impact indicates that an action will be beneficial, or if the action is benign and there is no opportunity to restore environmental quality, then there is no conflict between environmental values and other values and the action is permissible under NEPA.

If, however, adverse environmental effects are shown, or if it is possible to restore environmental quality previously lost, then the official or agency has a duty to consider alternatives to the proposed action. Section 102(2) (D) requires federal agencies to consider alternatives whenever a proposal "involves unresolved conflicts concerning alternative uses of available resources."²⁰ The consideration of alternatives must be as thorough as the consideration of environmental effects. Failure to consider a feasible alternative, or inadequate consideration of such an alternative, should be sufficient grounds to find noncompliance with NEPA, because, had the alternative been adequately considered, it might have been adopted rather than the original proposal.

If an alternative is found which does not cause the adverse environmental effects which the proposed action would cause, then the duty of federal officials to implement the national environmental policy requires that the alternative be adopted instead of the original proposal. As set forth above, federal officials are required by NEPA to act in a manner which will restore and maintain environmental quality when conflicts between environmental values and other values occur. If a conflict can be resolved by the adoption of an environmentally nondestructive course of action, then it would be a breach of duty to adopt the environmentally destructive course of action. As Senator Jackson observed:

What is involved is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: [sic] That we will not intentionally initiate actions which will do irreparable damage to the air, land, and water which support life on earth.²¹

Some proposals which have adverse environmental effects will not have alternatives which eliminate the adverse effects. In such cases, the federal official or agency has a responsibility under NEPA to reassess the justification for the proposed action. Senator Jackson pointed out that Congress intended that environmentally destructive courses of action be only infrequently permitted:

The basic principle of the policy is that we must strive in all that we do, to achieve a standard of excellence in man's relationships to his physical surroundings. If there are to be departures from this standard of excellence they should be exceptions to the rule and the policy. And as exceptions, they will have to be justified in the light of public scrutiny as required by section 102.²²

Under NEPA the only permissible actions that have adverse environmental consequences are those actions which have long-term social benefits that outweigh long-term environmental costs. The Act aims at striking a balance between long-term beneficial use of the environment and environmental quality.²³ NEPA establishes certain rules for this social balancing test.

First, other than economic values are to be included in the balance. Such values as diversity, aesthetics and health are to be considered when determining whether an environmentally destructive action is to be permitted. To the extent that these values are unquantified, section 102(2) (B) requires that procedures be developed to give them "appropriate consideration."²⁴

[1 ELR 50040]

Second, a much harder look at "public benefit" must be taken than under the "balancing of equities" test in nuisance cases.²⁵ If the public must pay for an activity in the currency of impaired environmental quality, the public has a right to demand benefits of more than commensurate value. Thus, benefits accruing to the public — not to individuals, but to the public — must be balanced against the loss.

Even if an agency succeeds in proving that an environmentally destructive action is justified, its responsibility does not end. The agency must then take all possible steps to minimize the adverse effects of its action. This conclusion flows from the application of the national environmental policy to all of the subordinate decisions after the initial decision is made. A consideration of alternative techniques of implementing the decision is especially important at this stage of the decision-making process.

Throughout the process outlined above, the burden of proof is on the person or group which wishes to disturb the environment.²⁶ NEPA was clearly intended to restructure a decision-making process that for too long has subordinated the public's interest in environmental quality to a multitude of private interests.

As a result of … failure to formulate a comprehensive national policy, environmental decision-making largely continues to proceed as it has in the past. Policy is established by default and inaction. Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Important decisions concerning the use and the shape of man's future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades. Today it is clear that we cannot continue on this course.²⁷

Those wishing to disturb the environment must prove either that the proposed action will not impair environmental quality or that the social benefits outweigh the social costs. They must also prove that no alternatives exist which would eliminate the adverse effects or minimize such effects if the environmentally destructive action has been justified by social utility. Such proof must be made in a reviewable record.²⁸ In the case of "legislative proposals" and "other major Federal action," the reviewable record is the detailed statement required by Section 102(2)(C).

2. Procedural Duties

To insure that the national environmental policy is implemented, as required by section 102(1), Congress established "action-forcing" procedures to be followed by federal officials and agencies when making decisions which have an environmental impact.²⁹ These procedural requirements are set forth in section 102(2) and are best analyzed on an individual basis. It is important to note that Congress designed the "action-forcing" procedures to force federal officials and agencies to implement the national environmental policy, not to enable them to evade implementation.³⁰ Thus, the procedures do not limit the substantive duty of federal officials and agencies to implement the policy.³¹ The Council on Environmental Quality restated Congress's intent when it issued guidelines on section 102(2)(C):

Underlying the preparation of such environmental statements is the mandate of both the Act and Executive Order 11514 … that all Federal agencies, to the fullest extent possible, direct their policies, plans and programs so as to meet national environmental goals.³²

Section 102(2) (A) requires federal agencies to "… utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment. …"

This duty requires task-oriented agencies such as the Federal Highway Administration, the Army Corps of Engineers and the National Housing Authority to obtain expert advice in fields outside [1 ELR 50041] their scope of expertise.³³ The word "may" is important in defining the scope of this responsibility. It often cannot be determined that a particular action "will" have an environmental impact until experts from many disciplines are consulted. Therefore, an interdisciplinary approach must be used to determine whether a proposed action has adverse environmental effects.³⁴

Section 102(2)(B) requires federal agencies to: "… identify and develop methods and procedures, in consultation with the Council on Environmental Quality … which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations. …"

Inadequate consideration of the environment in the decision-making process often results from the inability to include, in a systematic way, certain environmental factors in the decision calculus. Some examples of these "unquantified environmental amenities and values" can be drawn from the Act. Included are factors such as historic, cultural, and natural aspects of our national heritage, diversity, esthetically pleasing surroundings and health.

What constitutes "appropriate consideration" of these factors is a difficult question. Agencies which make use of some type of cost-benefit formula in their decision-making process will be especially affected. Since the Act requires that "unquantified environmental amenities and values … be given appropriate consideration … along with economic and technical considerations" (emphasis added), a strong argument can be made that environmental amenities and values must be included in the cost-benefit formula. Unless some rational means can be developed for including such factors in the formula, the cost-benefit approach may have to be abandoned.³⁵ It will take considerable thought, both on the part of federal agencies and the Council on Environmental Quality, to develop methods and procedures which will insure appropriate consideration for environmental factors.

Section 102(2) (C) requires federal agencies to:

… 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 —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

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 thecomments 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. …

NEPA requires that a consideration of environmental effects be made part of the reviewable record of any agency decision which affects the environment,³⁶ but section 102(c) (C) goes further. It places an affirmative burden on federal agencies to prepare a written statement, to be reviewed by the President, the Council on Environmental Quality³⁷ [1 ELR 50042] and the public³⁸ and on the environmental impact of proposals for legislation³⁹ and "other major Federal actions"⁴⁰ "significantly affecting the quality of the human environment."⁴¹ Thus, for a large number of important federal actions the environmental impact must be stated concisely and any adverse environmental consequences must be justified in light of future needs and alternative courses of action. This will allow Congress, in the case of proposals for legislation, to determine whether a proposal is consistent with the national environmental policy without sifting through the administrative record. It will draw the attention of the President, the Council and the public to major federal action which will impair environmental quality. In the absence of such a statement, adverse environment effects are often buried in the administrative record, if they are considered at all, and often go unnoticed.

The detailed statement must cover five topics. First, it must consider the environmental impact of the proposed action. Second, it must consider whether there are any adverse environmental effects that cannot be avoided if the action is taken. Third, it must consider the alternatives to the proposed action. Fourth, it must consider the relationship between short-term uses of the environment and long-term maintenance and enhancement of productivity. And, finally, it must consider any irreversible and irretrievable commitments of resources which would be involved in the proposed action.⁴²

When the detailed statement is submitted to the President, to the Council on Environmental Quality, to the public and to decision-makers within the agency who are to review the proposal, it must be accompanied by the comments of "appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental [1 ELR 50043] standards."⁴³

The detailed statement must be a full analysis of environmental impact, rather than merely an attempt to justify a particular decision. The analytical character of the detailed statement is emphasized by the NEPA requirement that the statement be prepared by a "responsible official." Throughout the Act, other responsibilities are delegated to the "Federal Government" or to "Federal agencies." The requirement that a "responsible official" prepare the detailed statement emphasizes the role differentiation between preparation of the statement and making the decision — the former is the responsibility of an identifiable person,⁴⁴ while the latter is the responsibility of the agency as a whole.

The only major federal actions exempted from the requirement that a detailed statement be prepared affect water quality. The Water Quality Improvement Act of 1970,⁴⁵ establishes a certification procedure to secure advance compliance with water quality standards.⁴⁶ Section 104 was added to NEPA to exempt agencies from the requirement that a detailed statement be prepared whenever compliance with water quality standards was certified by the appropriate state or interstate agency.⁴⁷ Exempting agencies from this procedural requirement, however, does not exempt them from other duties under NEPA where compliance with water quality standards is involved.⁴⁸

The Council on Environmental Quality leaves to the determination of federal agencies "at what stage or stages of a series of actions relating to a particular matter the environmental statement procedures … will be applied."⁴⁹ Specific guidelines will have to be developed.

The Council will also have to develop more explicit guidelines regarding when supplemental environmental statements must be prepared to take account of changed circumstances. The Council's interim guideline is vague on this point.⁵⁰

The Council set June 1, 1970 as the deadline for establishing agency procedures for:

(1) identifying those agency actions requiring environmental statements, (2) obtaining information required in their preparation, (3) designating the officials who are to be responsible for the statement, (4) consulting with and taking account of the comments of appropriate Federal, State, and local agencies, and (5) meeting the requirements of Section 2(B) of Executive Order 11514 for providing timely public information on Federal plans and programs with environmental impact.⁵¹

All major federal agencies with domestic programs have forwarded such procedures to the Council, although some are still in draft form. Where permanent procedures have been promulgated, they supercede the Council's "Interim Guidelines" and should be consulted to determine whether an agency has complied with applicable regulations.

It is important to note that Council guidelines require [1 ELR 50044] that:

To the fullest extent possible the section 102(2)(C) procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects of programs initiated prior to enactment of Public Law 91-190. …⁵²

The question of the applicability of NEPA to action initiated prior to the passage of the Act will be fully discussed in the section entitled "Application of NEPA to Action Initiated Prior to January 1, 1970," infra.

Section 102(2)(D) requires federal agencies to "… study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." Since the development of environmentally non-destructive alternatives is an important component of the substantive duty of federal agencies, it is important to define "alternative course of action." One alternative to a course of action is non-action, but the consideration of alternatives should not be limited to this single possibility.⁵³ Non-action should be seriously considered as an alternative in every case, since substantial environmental benefits are likely to result from maintaining the status quo — especially where there has been little previous environmental impact.

When considering positive alternatives, one must distinguish between theoretical and practical alternatives. This distinction is difficult to make because "practicality" (economic or technological) depends on an allocation of resources that NEPA is designed to change. For example, in deciding whether to build a particular highway, one would be tempted to argue that there is no alternative system of mass transportation that is technologically or economically feasible. But it is partially the decision to subsidize road construction that makes it technologically and economically unfeasible to develop other forms of mass transportation.

It is likely that economic impracticality will frequently be cited as an obstacle to the adoption of environmentally non-destructive alternatives. This claim will often reflect a short-term analysis of costs and benefits, and it should be viewed with suspicion. When a federal agency says that it cannot afford to install pollution control devices in a new facility, it is attempting to pass the cost of its operation to the public in decreased environmental quality instead of increased taxes. When private industry says that it cannot afford to install environmental protection devices in order to obtain a federal permit or liense, it is attempting to impose part of the cost of its product on the public through decreased environmental quality, instead of passing the cost to the consumer. These types of economic impracticality should not be viewed as obstacles to the adoption of alternative courses of action to environmentally destructive proposals.

However, there may be some alternatives whose cost greatly exceeds the environmental benefit that would result. In such cases the agency might be justified in considering the alternative a "non-alternative" and proceeding with the social balancing test described earlier.⁵⁴

Technological impracticality may be viewed in terms of cost and time. Given enough time and enough money, technological alternatives could probably be developed for most environmentally destructive actions. The relationship of cost to alternatives is outlined above. The relation of time is less certain. The question that must be asked is whether the need for a particular action is so immediate that it rules out the possibility of a delay during which adverse environmental effects can be eliminated. This question is very complex, because it introduces economic, social and political variables that may or may not be capable of precise measurement. For example, proponents of nuclear power plants often raise the spectre of power shortages and blackouts if the nation does not immediately construct such facilities. At best, the environmental cosequences of such plants are uncertain — there is much evidence that harmful effects have not been totally eliminated.⁵⁵ The question becomes: Can we wait to eliminate harmful environmental effects before building nuclear power plants, or must we proceed immediately? The answer depends on whether we are willing or able to change power consumption habits. To the extent that variables may be manipulated to allow time for alternatives to environmentally destructive action to be developed, the claim of technological impracticality should be rejected.

Section 102(2)(E) requies federal agencies to:

… recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment.

[1 ELR 50045]

This section does not really impose a procedural duty on federal agencies. Rather it is a statement of policy that Congress desires agencies to follow.⁵⁶ Agencies have considerable leeway in the implementation of this policy, both because of the phrase "where consistent with the foreign policy of the United States" and because of the constitutional dimensions of the foreign policy-making process.

Section 102(2) (F) requires federal agencies to "… make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment. …" This section, when coupled with the Freedom of Information Act,⁵⁷ could aid "States, counties, municipalities, institutions, and individuals" to obtain documents that might otherwise be considered internal memoranda. Further, President Nixon has stressed the necessity of disseminating information on the environmental impact of federal actions.⁵⁸

Section 102(2) (G) requires federal agencies to "… initiate and utilize ecological information in the planning and development of resource oriented projects. …" This section requires federal agencies to obtain the knowledge needed to prevent environmental damage when planning and developing resource-oriented projects. It insures that agencies cannot justify ignoring the national environmental policy because of a lack of information.

Finally, Section 102(2)(H) requires federal agencies to "… assist the Council on Environmental Quality established by title II of the Act. …" This section imposes a general responsibility on federal agencies to assist the Council in performing its duties and carrying out its functions.⁵⁹

C. ADMINISTRATIVE AND JUDICIAL INTERPRETATION

The performance of federal agencies in implementing the national environmental policy has been erratic. The Department of Transportation withheld federal funds for the extension of runways at the John F. Kennedy International Airport in New York, pending the results of an environmental study to be done by the National Academy of Sciences,⁶⁰ but failed to prepare a detailed statement on the environmental effects of the civil supersonic aircraft program, even though the statement was requested by several congressmen,⁶¹ until after the vote on the appropriations request in the House of Representatives.⁶² The International Boundary Commission decided to prepare a detailed statement on the use of chemical defoliants along the United States-Canadian border, and is in the process of soliciting the comments of the affected states, but only after pressure from Congressman Dingell.⁶³ The Federal Power Commission has given the Council a list of three-hundred power projects for which Section 102(2)(C) statements will be prepared, but the list is incomplete. For example, it does not include the Davis power project (West Virginia) which will affect a local park, a state park, a National Forest, a proposed wilderness area and the wildlife habitat of the northern part of Canaan Valley.

Some agencies have prepared detailed statements on proposed actions and submitted them to the Council on Environmental Quality,⁶⁴ but the adequacy of some of those statements is questionable. [1 ELR 50046]⁶⁵ The Council has asked at least one agency to prepare a detailed statement when the agency failed to do so on its own accord.⁶⁶

There is interdepartmental disagreement about what constitutes adequate consideration of the environment. Although it did not explicitly refer to NEPA, the Department of the Interior recently requested that the U.S. Army Corps of Engineers suspend construction of a barge canal in Florida, pending further investigation of environmental effects.⁶⁷

In at least two recent judicial proceedings the government cited NEPA as partial authority for its denial of permits where adverse environmental effects would result if the permits were granted. In Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), the court reversed the district court's holding that the denial of a dredge and fill permit by the Army Corps of Engineers, on the basis of adverse environmental effects, exceeded the Secretary of the Army's statutory authority. The Fifth Circuit held that NEPA requires that:

… the Army must consult with, consider and receive, and then evaluate the recommendations of … other agencies … on … environmental factors. In rejecting a permit on non-navigational grounds, the Secretary of the Army does not abdicate his sole ultimate responsibility. Rather in weighing the application, the Secretary of the Army is acting under a Congressional mandate [NEPA] to collaborate and consider all of these [environmental] factors. No. 27555 at p. 32.

In a similar case, Coastal Petroleum v. Secretary of the Army, __ F. Supp. __ (Civil No. 68-95 and Civil No. 69-699, consolidated S.D. Fla. July 1, 1970), the court relied on the district court opinion in Zabel v. Tabb, supra., to hold that the Secretary of the Army did not have the statutory authority to deny a dredging permit on the basis of adverse environmental effects. The government has appealed and has submitted a memorandum on the applicability of NEPA.

In most administrative and judicial proceedings, however, NEPA has been invoked to invalidate governmental action, rather than to support it.⁶⁸ The erratic performance of federal agencies in implementing the national environmental policy places a heavy burden on the public to monitor administrative action to see that is does not contravene the policy. A few emerging legal principles can be drawn from the administrative and judicial decisions rendered to date.

[1 ELR 50047]

1. Standing to Challenge Agency Action Under NEPA

Representatives of the public have standing before administrative and judicial tribunals to challenge agency action which is in violation of NEPA. The recent expansion of the standing doctrine has been discussed by several authors⁶⁹ and in many recent decisions.⁷⁰ That discussion need not be recapitulated here.

No suit alleging noncompliance with NEPA has been dismissed for lack of standing.⁷¹ In the cases which discuss standing, the Supreme Court case of Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970), figures prominently. In the Data Processing case the Court set out a two-part standing test. "The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise." 397 U.S. at 152. The Court calls this the "'case' or 'controversy' test." The test is satisfied whenever a petitioner can show actual injury. Actual injury in environmental cases may flow from impairment of some aspect of environmental quality in which the plaintiff has a special interest.⁷²

The Court stated that the second question concerns:

… apart from the 'case' or 'controversy' test, the question whether the interest sought to be protected by the complaintant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.

That interest, at times, may reflect 'aesthetic, conservational, and recreational' as well as economic values. 397 U.S. at 153.

The "zone of interest" to be protected by NEPA clearly comprehends the interests of this generation and future generations in "aesthetic, conservational, and recreational" values, as well as in the values of health, diversity and long-term productivity. NEPA also was intended to protect some rather specific interests, such as "important historic, cultural and natural aspects of our national heritage."

Thus, under Association of Data Processing Service Organizations v. Camp, supra., representatives of the public have standing before administrative and judicial bodies to challenge the actions of federal agencies which allegedly do not comply with NEPA.⁷³

In a recent decision, Sierra Club v. Hickel, __ F.2d __ No. 24966 (9th Cir. Sept. 16, 1970), the Court denied that the Sierra Club had standing to challenge the issuance of various licenses needed to construct a ski resort on public land. Although no violation of NEPA was alleged, the reasoning behind the denial of standing is relevant to similar cases that might be brought under NEPA. The court in Sierra Club v. Hickel, supra., held that the first test outlined in the Data Processing case, the "case or controversy test", was dispositive:

[The Sierra Club] does not allege that it is "aggrieved" or that it is "adversely affected" within the rules of standing.⁸

We do not believe that the Sierra Club's complaint alleges that it or its members possess a sufficient interest for standing to be conferred. There is no allegation in the complaint that members of the Sierra Club would be affected by the actions of defendants-appellants other than the fact that the actions are personally displeasing or distasteful to them.

Sierra Club v. Hickel, supra., tells us more about judicial strategy than it does about the legal principle of "standing." The reason for the court's concern that the Sierra Club was not alleging injury sufficient for the court to grant standing was that other groups, more closely related to the geographic area than the Sierra Club, favored the granting of the licenses. The court noted that while the Sierra Club, which "claims a membership of approximately 78,000 nationally, with approximately 27,000 members residing in the San Francisco Bay area," opposed the granting of licenses, "… the United States Ski Association, the far West Ski Association claiming 109,000 supporters, and the County of Tulare in which the development will be located, favor the action." No. 24966 at pp. 6-7. The court's statement that the only injury accruing to Sierra Club members — actions that are "personally displeasing or distasteful — is now more intelligible: it is difficult for a court to rule in favor of a national organization whose direct interest in the affected area is slight when larger groups, and groups with a more direct interest in the affected area, oppose such a ruling.

[1 ELR 50048]

The Court in Sierra Club v. Hickel, supra., distinguishes Citizens Committee For the Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970), and Parker v. United States, 307 F. Supp. 685 (D.C. Colo. 1969), on grounds that have no legal significance:⁷⁴

In holding that the complaint fails to allege that the Club has the requisite standing to institute this action, we are aware that Federal courts have accorded the Club standing to object to alleged administrative infringement upon natural resources in two recent cases; Citizens Committee for the Hudson Valley v. Volpe … and Parker v. United States … In both of these cases, however, the Sierra Club was joined by local conservationist organizations made up of local residents and users of the area affected by the administrative action. No such persons or organizations with a direct and obvious interest have joined as plaintiffs in this action. …

Merely because the Sierra Club was "joined by local conservationist organizations made up of local residents and users of the area affected by the administrative action" does not reflect on the Sierra Club's standing to bring the action.⁷⁵ Under the Hudson Valley and Parker cases, all aggrieved parties, including the Sierra Club, have standing. In Sierra Club v. Hickel, supra., a parallel ruling would have granted the ski associations and the County of Tulare standing to intervene on the side of the government to argue the merits. But by denying standing to the Sierra Club, the court interjects a new element into the standing test — a balancing of interests test — that is bound to cause confusion.

The lesson for conservation organizations should be clear. Local groups should be included in environmental actions whenever possible to strengthen the claim (by association, I suppose) of actual injury. The court in Sierra Club v. Hickel, supra., does not completely reject the proposition that environmental injury is sufficient to grant standing. It only infers that in determining whether environmental injury is sufficient, it will look at the lineup of opposing interests and the relationship of the group asserting injury to the affected area.

2. Application of NEPA to Action Initiated Prior to January 1, 1970

Whenever possible, NEPA should be applied to action initiated before the Act became effective. This is not "retroactive" application, as it has been labeled in at least one recent case,⁷⁶ although the decision to which NEPA is applied may be an integral part of a program begun before the Act became effective on January 1, 1970. Congress showed its intent that the Act be applied to action initiated prior to January 1, 1970 by omitting the traditional "grandfather clause" and by stressing the inclusive applicability of the policy.⁷⁷

The Council on Environmental Quality's Interim Guidelines for the preparation of section 102(2)(C) statements require agencies to prepare statements on major federal actions "even though they arise from projects or programs initiated prior to the enactment of NEPA."⁷⁸ The Council further declared:

Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program.⁷⁹

The question of whether NEPA aplies "retroactively" was first raised in Texas Committee on Natural Resources v. U.S., __ F.Supp. __, (W.D. Tex. 1969), appeal docketed, Civ. No. 28962 (5th Cir. 1970). The court denied plaintiff's motion for a preliminary injunction, but granted a stay pending appeal of its decision. The plaintiff alleged that the Federal Housing Administration was required to implement NEPA before disbursing funds for a loan approved before NEPA was passed. On appeal the court found that the plaintiff could succeed in proving that FHA had failed to comply with NEPA, because "no money has been expended and … no construction has begun." Had the Council on Environmental Quality's Guidelines been in effect at the time of the court's decision, the court could have used the factual circumstances (no expenditure of money and no construction) to find that [1 ELR 50049] it was still possible "to reassess the basic course of action," therefore holding for the plaintiff under the Council's guidelines.

In another case involving retroactive application of NEPA, the Court in Pennsylvania Environmental Council, Inc. v. Bartlett, Civ. No. 70-123 (M Pa. 1970), held that Congress did not intend that NEPA should be applied retroactively. The Court based its holding on the language of the Act which "most likely favors non-retroactivity.

For instance, the use by Congress of the phrases "to use all practicable means and resources" and "to the fullest extent possible" in Sections 101 and 102 of the Act appears to indicate a moderate, flexible and pragmatic approach to the immediate application of the Act. These phrases are hardly of the type which would evidence a retroactive intent.

The court reached its conclusion through loose citation from the Act and lack of familiarity with the legislative history. The phrase, "to use all practicable means and resources," is followed by the phrase, "including financial and technical assistance." Thus, the court omits language from NEPA which clearly requires that federal financial assistance for highway construction be disbursed according to the requirements of NEPA.

The court's reliance on the phrase, "to the fullest extent possible," is similarly misplaced. The meaning of that phrase has been analyzed in detail in a previous section.⁸⁰ At this point it is sufficient to note that the phrase was not intended to "indicate a moderate, flexible and pragmatic approach to the immediate application of the Act."

There is an alternative, stronger argument for not applying NEPA in this case. The court points out in distinguishing the case from Texas Committee on Natural Resources, supra., that construction had not begun in the Texas case whereas it had in the Pennsylvania one. Under the Council on Environmental Quality's Guidelines,⁸¹ it might have been impossible to reassess the basic course of action in the Pennsylvania case. In such circumstances the most that could have been asked was that future decisions be made with a view toward minimizing adverse environmental impact.⁸²

3. The Relationship of NEPA to Other Environmental Protection Statutes

NEPA should not be read in isolation from other environmental protection statutes. NEPA was passed in part because the responsibility for protecting the environment under previous statutes was diffused and compartmentalized.⁸³ Congress knew that the Atomic Energy Commission in State of New Hampshire v. AEC, 406 F.2d 170 (1st Cir. 1969), had successfully denied that it had statutory authority to consider possible safety and environmental hazards, other than hazards resulting from radiation emission, caused by the construction and operation of nuclear power plants.⁸⁴ Congress also appeared to be aware of the decision in Zabel v. Tabb, 276 F. Supp. 764 (M. Fla. 1969), reversed 430 F.2d 199 (5th Cir. 1970), which denied the U.S. Army Corps of Engineers the authority to withhold a license for a land fill project, because the project would have a detrimental impact on fish and wildlife.⁸⁵ Congress intended in NEPA to make these and other federal agencies responsible for considering the environmental effects of their actions.⁸⁶

If an agency must take action under a statute other than NEPA to protect the environment, NEPA requires that the agency not avoid or subvert that responsibility. For example, the Environmental Defense Fund, Inc. filed a petition with the [1 ELR 50050] Federal Aviation Administration on May 25, 1970 to require the immediate promulgation of environmental standards to apply to civil supersonic aircraft (SST). EDF requested standards for sideline noise, sonic booms, passenger radiation and atmospheric pollution and alleged that if the standards were not set immediately, FAA sponsorship of the SST would make it impossible later to set standards which would restore and maintain environmental quality. EDF reasoned that the FAA has a statutory responsibility to consider certain factors, including technological and and economic feasibility, when setting noise standards.⁸⁷ If the FAA sponsors construction of an SST with arguably unacceptable noise characteristics,⁸⁸ it will then be unable to set adequate noise standards, because its sponsorship of the SST program will have created technological and economic constraints. Thus, the FAA could evade its responsibility under the Aircraft Noise Abatement Act⁸⁹ and under NEPA.

NEPA also requires federal agencies to take into account the environmental objectives of other federal agencies, especially where such objectives have been defined by Congress, when making decisions which affect the environment. EDF filed a petition with the Department of Health, Education and Welfare in April, 1970 under NEPA and the Clean Air Act⁹⁰ to require the Secretary to set emissions standards for gasoline engines to implement the policy of the Clean Air Act. This petition would require a broad application of the theory of consistent agency implementation of statutes with similar purposes, because the Clean Air Act, read alone, does not require that standards be set for air pollution.

A much clearer use of the above theory is in the field of water pollution control under the Federal Water Pollution Control Act.⁹¹

The Department of the Interior reads a "no-degradation" policy⁹² into the act and is requiring states to incorporate a no-degradation clause into their water quality standards before they can obtain federal approval.⁹³ Any federal action which violates the statutory policy of no-degradation is certainly contrary to the national environmental policy set out in NEPA.State certification of a proposed activity under the Water Quality ImprovementAct of 1970 does not relieve a federal agency of its responsibility under NEPA to apply the no-degradation policy to its actions.⁹⁴

4. NEPA Applies to the Total Impact of Federal Action

Federal action must be viewed in its entirety when applying the policy and procedures of NEPA.⁹⁵ The Council on Environmental Quality adopted this interpretation in its guidelines for the preparation of section 102(2)(C) statements:

The statutory clause 'major Federal actions significantly affecting the quality of the human environment' is to be construed by agencies with a view to the overall, cumulative impact of the action proposed (and of further actions contemplated).⁹⁶

In light of NEPA's emphasis on preserving the environment for the use of future generations, no other interpretation is possible. The court in Texas Committee on Natural Resources v. U.S., __ F. Supp. __ (Civ. No. A-69-CA-119., W. Tex. 1969), appeal docketed, Civ. No. 28962 (5th Cir. 1970), recognized the need for a comprehensive view of federal action in agreeing with the plaintiff's contention that the case involved "not merely a loan, but an extensive federal project, the consequences of which will have substantial and detrimental environmental and ecological consequences."

A preliminary injunction was granted on the basis [1 ELR 50051] of NEPA in Wilderness Society v. Hickel, Civ. No. 728-70, (D.C. D.C., 1970).⁹⁷ The court held that the plaintiffs' likelihood of proving that Secretary of the Interior Hickel had failed to comply with his duties under NEPA was sufficient to enjoin the issuance of a permit which would allow the construction of a road needed in order to build a multi-million-dollar oil pipeline across Alaska.In that case, the Secretary prepared an environmental statement which took road construction, into account, but didn't consider the environmental impact which pipeline construction might have. The court found that the road and the pipeline were one undertaking and implied that an environmental statement might be found insufficient according to law if it does not consider the environmental impact of the total undertaking.⁹⁸

The review of environmental impact, the consideration of alternatives and the fulfillment of other requirements of NEPA must occur before any federal action is taken. For example, the Corps of Engineers cannot grant a permit for dredging and filling in conjunction with the construction of a power plant without first reviewing the environmental consequences of such a plant. This approach conforms much closer to reality than the current approach, which is to issue licenses contingent on future compliance with vague standards. Projects gain momentum, and once initial construction is begun they are difficult to stop, no matter what detrimental effects occur.⁹⁹ If the choice were really between waiting for full authorization or beginning construction with a possible future denial of permits, companies would almost always wait for full authorization.¹⁰⁰

D. CONCLUSION

NEPA declares a policy that has a broad scope and imposes duties that are compulsory. It would be a great mistake to view the Act more narrowly,¹⁰¹ because Congress clearly intended that it apply to most federal action which affects the environment. As agencies become familiar with the substantive and procedural requirements of NEPA, they will slowly incorporate the intent of Congress — the restoration and maintenance of environmental quality — into their decisions. For example, the FCC recently rendered a decision on a complaint filed on behalf of Friends of the Earth on March 14, 1970. The complaint alleged that WNBC-TV of New York had failed to comply with the fairness doctrine or to meet its public interest obligations in covering the issue of air pollution caused by automobiles and gasoline. Although the Commission denied the relief requested by FOE¹⁰², it stated:

… we fully recognize that the public interest standard must take into account public health … and specifically the environmental pollution aspects of public health. See National Environmental Policy Act … [I]t is Red Lion [395 U.S. 367] … which should be followed here as the best means of fulfilling our obligations under the 1969 Act [NEPA]. Letter to Mr. Gary Soucie, Friends of the Earth, FCC Reply No. 3300.

Thus, licensees who fail to devote sufficient programming time to the problem of pollution may be in danger of not having their licenses renewed. In losing this particular battle, FOE may have fired the opening shot in a much more decisive war.

The FCC decision on the FOE complaint illustrates why NEPA should not be interpreted restrictively. The Act contains such a clear statement of Congressional intent that agencies and courts are loath to ignore it. Where courts have ruled against plaintiffs who invoked NEPA, most seemed more concerned with why it would be inequitable to apply the Act in the particular case than with the legal requirements of NEPA. No court or agency has said that NEPA does not impose duties, enforceable by aggreived parties, upon federal decision-makers.

[1 ELR 50052]

Since courts are concerned with equities, it is important that the first cases which allege non-compliance with NEPA clearly allege and prove adverse environmental effects that involve few countervailing considerations of equity. Thus, projects on which work began before the passage of NEPA are poor test cases, unless there are less environmentally destructive alternatives readily available. If courts are presented with clear cases of refusals by federal agencies to implement the national environmental policy, they will be hard-pressed not to grant an appropriate remedy.

1. 42 U.S.C. § 4321 et seq., 83 Stat. 852, P.L. 91-190. The United States Code citation corresponds to the section numbers of the Public Law in the following manner:

Section 2 is 42 U.S.C. § 4321

Section 101 is 42 U.S.C. § 4331

Section 102 is 42 U.S.C. § 4332

Section 103 is 42 U.S.C. § 4333

Section 104 is 42 U.S.C. § 4334

Section 105 is 42 U.S.C. § 4335

Alphabetical and numerical subsections are the same in the Public Law and the United States Code. Hereafter only Public Law citations will be given in the text. U.S.C. citations will not be individually footnoted.

2. Title II requires the President to transmit to Congress annually an "Environmental Quality Report." Title II also creates a "Council on Environmental Quality" and specifies the duties and functions of the Council.

3. S. Rep. No. 296, 91st Cong., 1st Sess. p. 8 (1969). See also at p.4 for a further statement of the problems about which Congress was concerned when it passed NEPA:

… haphazard urban and suburban growth; crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man's social and psychological well-being; the loss of valuable open spaces; inconsistent and, often, incoherent rural and urban land-use policies; critical air and water pollution problems; diminishing recreational opportunity; continuing soil erosion; the destruction of unique ecosystems; needless deforestation; the decline and extinction of fish and wildlife species; faltering and poorly designed transportation systems; poor architectural design and ugliness in public and private structures; rising levels of noise; the continued proliferation of pesticides and chemicals without adequate consideration of the consequences; radiation hazards; thermal pollution; an increasingly ugly landscape cluttered with billboards, powerlines, and junkyards; and many, many other environmental quality problems.

4. The Council on Environmental Quality adopts this dual focus in its "Interim Guidelines" on the preparation of section 102(2) (C) statements: "Federal agencies will … assess in detail the potential environmental impact in order that adverse affects [sic] are avoided, and environmental quality is restored or enhanced." 35 Federal Register 7391 (May 12, 1970)

5. The national environmental policy has been frequently compared to the full employment policy of the Full Employment Act of 1946. 15 U.S.C. § 1021 et seq. 115 Cong. Rec. S 7815 (daily ed. July 10, 1969) (Statement of Mr. Jackson); Joint House Senate Colloquium to Discuss a National Policy for the Environment, Before the Committee on Interior and Insular Affairs, United States Senate, and the Committee on Science and Astronautics, U.S. House of Representatives, 90th Congr., 2nd Sess. [No. 8] at p.5 (July 17, 1968); Hearings on S. 239 and S. 1415, Before the Committee on Interior and Insular Affairs United States Senate, 87th Cong., 1st Sess. at p. 57, p. 89, and p. 91 (April 13, 1961); Hearings on S. 2549, Before the Committee on Interior and Insular Affairs United States Senate, 87th Cong. 2nd Sess. at p. 11 (January 25, 1960). The only "action-forcing" provision of the Full Employment Act is the requirement that an annual economic report be transmitted to Congress.

6. Section 101 (b) imposes on federal officials and agencies a duty which appears to be "discretionary" because of qualifying language: "… it is the continuing responsibility of the Federal Government to use all practicable means consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs and resources. …"

The determination of "practicable means" and consistency with "other essential considerations of national policy" is left to the decision-maker. Section 102 duties, however, are "non-discretionary".

7. "(1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance iwth the policies set forth in this Act, and (2) all agencies of the Federal Government shall comply with the procedural requirements." (Emphasis added).Sec. 102, 42 U.S.C. § 4323.

8. A statement of national policy for the environment — like other major policy declarations — is in large measure concerned with principle rather than detail; with an expression of broad national goals rather than narrow and specific procedures for implementation. But if goals and principles are to be effective, they must be capable of being applied in action. S. 1075 thus incorporates certain action-forcing provisions and procedures which are designed to assure that all Federal agencies plan and work toward meeting the challenge of a better environment. S. Rep. No. 296, supra n.3 at 9.

To remedy present shortcomings in the legislative foundation of existing programs, and to establish action-forcing procedures which will help to insure that the policies enunciated in section 101 are implemented, section 102 authorizes and directs that the existing body of federal law, regulation and policy be interpreted and administered to the fullest extent possible in accordance with the policies set forth in this act. It further establishes a number of operating procedures to be followed by all Federal agencies. …" 115 Cong. Rec. § 17454 (daily ed., Dec. 20, 1969) (Section-by-Section Analysis of S. 1075 as reported from the Conference Committee).

See also 115 Cong. Rec. 57815 (daily ed., July 10, 1969) (Remarks of Mr. Jackson); 115 Cong. Rec. S 12142-12143 (daily ed., Oct. 8, 1969) (Section-by-Section Analysis of NEPA); id. at S 12145; 115 Cong. Rec. H 12634-12635 (daily ed., Dec. 17, 1969) (Provisions of the Conference Substitute).

9. 115 Cong. Rec. H 12635 (daily ed., Dec. 17, 1969) (Statement of the Managers on the Part of the House); 115 Cong. Rec. S 17453 (daily ed., Dec. 20, 1969) (Major Changes in S. 1075 as Passed by the Senate). Representative Aspinall's dissent from this otherwise unanimous interpretation appears to be without foundation. 115 Cong. Rec. H 13094 (daily ed., Dec. 23, 1969) (Remarks of Mr. Aspinall).

The Council on Environmental Quality adopts this interpretation in its Interim Guidelines, 35 Federal Register 7391 (May 12, 1970).

10. 115 Cong. Rec. H 12635 (daily ed., Dec. 17, 1969) (Statement of the Managers on the Part of the House); 115 Cong. Rec. S 17453 (daily ed., Dec. 20, 1959) (Major Changes in S. 1075 as Passed by the Senate).

11. See also Executive Order 11514, 35 Federal Register 4247 (March 5, 1970), and Council on Environmental Quality, Interim Guidelines, 35 Federal Register 7392 (May 12, 1970). Most agencies have notified the Council of statutory conflicts with the national environmental policy. Such statements, however, have not yet been published. They are available from ELR through its Facsimile Service.

12. See S. Rep. 296, 91st Cong., 1st Sess. p. 14 (1969):

S. 1075, as reported by the committee, would provide all agencies and all federal officials with a legislative mandate and a responsibility to consider the consequences of their actions on the environment. This would be true of the licensing functions of independent agencies as well as the ongoing activities of the regular federal agencies.

13. During hearings on NEPA, Senator Jackson pointed out that one of the reasons for a congressional declaration of environmental policy, rather than an administrative declaration of policy, was the need to modify or amend the mandates of quasi-judicial independent agencies. Hearings on S. 1075, S. 237, and S. 1752, before the Committee on Interior and Insular Affairs, United States Senate, 91st Cong., 1st Sess. at pp. 116-117 and p. 121.

14. Many existing agencies such as the National Park Service, the Federal Water Pollution Control Administration and the National Aid [sic] Pollution Control Administration, already have important responsibilities in the area of environmental control. The provision [sic] of Section 102 (as well as 103 are not designed to result in any change in the manner in which they carry out their environmental protection authority. 115 Cong. Rec. S 17453 (daily ed., Dec. 20, 1969) (Major Changes in S. 1075 as Passed by the Senate).

See also id., at S. 17460 (Remarks of Mr. Muskie).

The Council on Environmental Quality's Interim Guidelines recognize this legislative intent. 35 Federal Register 7391 (May 12, 1970).

15. Executive Order No. 11514, 35 Federal Register 4247 (March 5, 1970) implies that NEPA is to be applied to these actions by requiring agencies to determine whether there are any statutory or administrative prohibitions against application.

In issuing "Interim Guidelines" for the preparation of section 102(2) (C) statements, the Council on Environmental Quality listed some of the federal actions that are covered by NEPA.

Actions include but are not limited to:

(i) Recommendations or reports relating to legislation and appropriations;

(ii) Projects and continuing activities;

Directly undertaken by Federal Agencies:

Supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance;

Involving a Federal lease, permit, license, certificate or other entitlement for use;

(iii) Policy and procedure-making.

35 Federal Register 7390 (May 12, 1970).

16. 115 Cong. Rec. S 17451 (daily ed., Dec. 20, 1969) (Remarks of Mr. Jackson). See also 115 Cong. Rec. S 5820 (daily ed., May 20, 1969) where Senator Jackson states that the policy "serves a constitutional function in that people may refer to it for guidance in making decisions where environmental values are found to be in conflict with other values."

17. It would be impossible for federal agencies to prepare detailed statements for all actions affecting the environment, so Congress limited this responsibility to important actions. The limitations of this procedural duty do not affect the substantive obligation of federal agencies to implement the national environmental policy when making all decisions.

18. Courts are narrowing the range of unfettered administrative discretion and forcing agencies to justify their decisions in a reviewable record. In Environmental Defense Fund v. Hardin, No. 23,813 (D.C. Cir. May 28, 1970), plaintiffs sought suspension of the registration of all products containing DDT under the Federal Insecticide, Fungicide, and Rodenticide Act. 7 U.S.C. §§ S 135-135k. The court remanded the case to the Department of Agriculture "either for a fresh determination on the question of suspension, or for a statement of reasons for his silent but effective refusal to suspend the registration of DDT." p. 11. The court stated:

… meaningful appellate review of the refusal to suspend DDT's registration is impossible in the absence of any record of administrative action. The suspension decision is committed by statute to the Secretary; the role of the court is merely to ensure that his decision is supported by the record … the impressive evidence presented by petitioners, then the basis for that decision should appear clearly on the record, not in conclusionary terms but in sufficient detail to permit prompt and effective review. p. 11.

Accord. Rooth American Company v. FCC, No. 23,862 (D.C. Cir. Feb. 17, 1970); Nader v. Volpe, C.A. No. 960-70 (D.C.D.C. order filed June 26, 1970).

19. Section 102(2)(G) requires federal agencies to "initiate and utilize ecological information in the planning and development of resource oriented projects. …"

20. See infra for a detailed analysis of Section 102(2)(D).

21. 115 Cong. Rec. S 17451 (daily ed., Dec. 20, 1969) (Remarks of Mr. Jackson).

22. Id. See also 115 Cong. Rec. S 7815 (daily ed. July 10, 1969) (Remarks of Mr. Jackson).

23. NEPA was intended "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." Sec. 2.

The Federal government is required to implement the national environmental policy "in a manner calculated to foster and promote the general welfare, … and fulfill the social, economic, and other requirements of present and future generations of Americans." Sec. 101(a).

The mandate to "fulfill the responsibilities of each generation as trustee of the environment for succeeding generations" balances short-term against long-term use. Sec. 101(b)(1).

The government must "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." Sec. 101(b)(3).

The government is also required to "achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities." Sec. 101(b)(5).

And subsections (iv) and (v) of section 102(2)(C) require federal agencies to balance short-term use against long-term productivity whenever a major federal action is proposed.

24. For a more detailed analysis of Section 102(2)(B), see p. 500 42, infra.

25. The drawbacks of the nuisance standard in air pollution cases are discussed in Juergensmeyer, "Control of Air Pollution Through the Assertion of Private Rights," 1967 Duke L.J. 1131-1134.

26. See Hanks, "An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969," 24 Rutgers L. Rev. 230 (1970).

27. S. Rep. No. 296 supra, n.3 See also id., pp. 8-9. The principal threats to the environment and the Nation's life support system are those which man has himself induced in the pursuit ofmaterial wealth, greater productivity, and other important values. These threats — whether in the form of pollution, crowding, ugliness, or in some other form — were not achieved intentionally. … The purpose of S. 1075 is therefore, to establish a national policy designed to cope with environmental crisis, present or impending.

28. See n.18, supra.

29. See n.8, supra.

30. The reason for including action-forcing procedures was the fear that in the absence of such procedures agencies might be able to evade implementation of the policy. See statement of Senator Jackson, Hearings on S. 1075, S. 237, and S. 1754 supra, n.13, p. 116.

31. Otherwise an agency could defeat congressional intent by complying with all the procedures, but ignoring the environmental policy when it made decisions. For example, Congress clearly did not intend that preparation of a detailed statement under Section 102(2)(C) would exhaust an agency's duty under NEPA. If adverse environmental effects are noted in the statement, the agency must do more before it can take action.

32. 35 Federal Register 7390 (May 12, 1970).

33. If such agencies do not have sufficient "in-house" expertise to utilize an interdisciplinary approach, they must seek the assistance of other federal agencies. The Council on Environmental Quality has published a list of "Federal Agencies with Expertise or Jurisdiction by Law with Respect to the Environment." See n.43, infra.

34. The Council on Environmental Quality requires that section 102(2)(C) statements be prepared utilizing the systematic, interdisciplinary approach required by that section. 35 Federal Register 7392 (May 12, 1970). Where a section 102(2)(C) statement is not required, the administrative record must show that a systematic, interdisciplinary approach was used in considering environmental effects. See n.18, supra.

35. For a critique of cost-benefit analysis, see "Convention and Limitation in Benefit-Cost Analysis" by Richard J. Hammond, Natural Resources Journal 195 (April 1966).

36. See n.18, supra.

37. The power of the Council under NEPA to act to prevent a federal agency from taking environmentally destructive action is limited.

Section 204(3) requires the Council:

"to review and appraise the various programs and activities of the Federal Government in the light of [the national environmental policy] for the purpose of determining the extent to which such programs and activities are contributing to the achievement of such policy, and to make recommendations to the President with respect thereto."

Therefore, if the Council wishes to override an agency decision on the basis of a Section 102(2)(C) statement, it must have the affirmative support of the President. Whether the Council can reject a detailed statement as insufficient under NEPA and the effect of such a rejection are uncertain.

38. The legislative history of NEPA makes it clear that decisions affecting the environment are to be made "in the light of public scrutiny." 115 Cong. Rec. S 17451 (daily ed., Dec. 20, 1969) (remarks of Mr. Jackson). NEPA gives the President, the Council and the public equal rights to receive and review Section 102(2)(C) statements. But the Council has adopted the position that it has a prior right of scrutiny or review.

The Council requires federal agencies to submit "draft statements," 35 Federal Register 7392 (May 12, 1970), which it refuses to make public. If the Council does not agree with sections of these preliminary statements, it negotiates a revision with the agency. It is questionable whether the revisions are substantive changes in the agency's proposed action or changes in the detailed statement to make it more palatable to the public. Given the lack of power to the Council, it is likely that revisions will be window-dressing rather than substantive improvements.

Neither the Act nor the legislative history envisioned that the public be provided a sanitized version of the detailed statement. The Council's procedure defeats one of the basic purposes of the act: To restructure a decision-making process that for too long has ignored public desires and aspirations.

39. In its Interim Guidelines, the Council on Environmental Quality defined "recommendations or reports on proposals for legislation" as follows:

The requirement for following the section 102(2)(C) procedure as elaborated in these guidelines applies to both (i) agency recommendations on their own proposals for legislation and (ii) agency reports on legislation initiated elsewhere. (In the latter case only the agency which has primary responsibility for the subject matter involved will prepare an environmental statement.) The Bureau of the Budget will supplement these general guidelines with specific instructions relating to the way in which the section 102(2)(C) procedure fits into its legislative clearance process. 35 Federal Register 7391 (May 12, 1970).

Recommendations or reports on appropriations requests are subject to the provisions of NEPA. See n. 15, supra.

40. The Council's guidelines regarding the actions that require detailed statements are set forth fully in n.15, supra.

41. The Council guidelines state:

The statutory clause "major Federal actions significantly affecting the quality of the human environment" is to be construed by agencies with a view to the overall, cumulative impact of the action proposed (and of further actions contemplated). Such actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the statement is to be prepared. Proposed actions the environmental impact of which is likely to be highly controversial should be covered in all cases. 35 Federal Register 7390 (May 12, 1970).

42. An analysis of the five factors is given in the Council on Environmental Quality's Interim Guidelines:

(i) the probable impact of the proposed action on the environment, including impact on ecological systems such as wildlife, fish, and marine life. Both primary and secondary significant consequences for the environment should be included in the analysis. For example, the implications, if any, of the action for population distribution or concentration should be estimated and an assessment made of the effect of any possible change in population patterns upon the resource base, including land use, water, and public services, of the area in question.

(ii) Any probable adverse environmental effects which cannot be avoided (such as water or air pollution, damage to life systems, urban congestion, threats to health or other consequences adverse to the environmental goals set out in section 101(b) of Public Law (91-190).

(iii) Alternatives to the proposed action (section 102(2)(D) of the Act requires the responsible agency to "study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources"). A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects is essential.Sufficient analysis of such alternatives and their costs and impact on the environment should accompany the proposed action through the agency review process in order not to foreclose prematurely options which might have less detrimental effects.

(iv) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity. This in essence requires the agency to assess the action for cumulative and long-term effects from the perspective that each generation is trustee of the environment for succeeding generations.

(v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.This requires the agency to identify the extent to which the action curtails the range of beneficial uses of the environment. 35 Federal Register 7391-7392 (May 12, 1970).

43. The Council has prepared a "Memorandum of Federal Agencies with Expertise or Jurisdiction by Law with respect to the Environment," July 29, 1970. The Memorandum appears in the Progress Report on Implementation of § 102(2)(C) of National Environmental Policy Act, released by the Council on Environmental Quality on September 16, 1970.

Comments from state and local agencies are discussed in the Council's Interim Guidelines:

State and local review. Where no public hearing has been held on the proposed action at which the appropriate State and local review has been invited, and where review of the proposed action by State and local agencies authorized to develop and enforce environmental standards is relevant, such State and local review shall be provided for as follows:

(a) For direct Federal development projects and projects assisted under programs listed in Attachment D of the Bureau of the Budget Circular No. A-95, review by State and local governments will be through procedures set forth under Part 1 of Circular No. A-95.

(b) State and local review of agency procedures, regulations, and policies for the administration of Federal programs of assistance to State and local governments will be conducted pursuant to procedures established by Bureau of the Budget Circular No. A-85.

(c) Where these procedures are not appropriate and where the proposed action affects matters within their jurisdiction, review of the proposed action by State and local agencies authorized to develop and enforce environmental standards and their comments on the draft environmental statement may be obtained directly or by publication of a summary notice in the Federal Register (with a copy of the environmental statement and comments of Federal agencies thereon to be supplied on request). The notice in the Federal Register may specify that comments of the relevant State and local agencies must be submitted within 60 days of publication of the notice. 35 Federal Register 7392 (May 12, 1970).

44. The Council on Environmental Quality set June 1, 1970, as the deadline for federal agencies to designate the official who is responsible for preparation of the statement. 35 Federal Register 7390 (May 12, 1970).

45. 33 U.S.C. § 1171, 84 Stat. 107 et seq., P.L. 91-224.

46. 33 U.S.C. § 1171, 84 Stat. 108, P.L. 91-224, Sec 21(b)

47. 115 Cong. Rec. S. 12110-12117 (daily ed. Oct 8, 1969). The Council on Environmental Quality's Interim Guidelines restate this exemption. 35 Federal Register 7392 (May 12, 1970).

48. Section 21(c) of the Water Quality Improvement Act, 33 U.S.C. § 1171, 84 Stat. 110, specifically provides: "Nothing in this section shall be construed to limit the authority of any department or agency pursuant to any other provision of law to require compliance with applicable water quality standards."

49. 35 Federal Register 7391 (May 12, 1970).

50. Care should be exercised so as not to duplicate the clearance process, but when actions being considered differ significantly from those that have already been reviewed, an environmental statement should be provided. 35 Federal Register 7391 (May 12, 1970).

51. Id. at 4390

52. Id. at 4391.

53. This was the only definition given to "alternative" by the Department of the Interior when it prepared the detailed statement on the construction of the haul road for the Alaskan oil pipeline. Yukon River-North Slope Road (filed on 3/20/70 with the Council on Environmental Quality at pp. 6-7).

54. See p.p. 50039-50040, supra.

55. Concern about "thermal pollution" has greatly increased in recent years. See "Thermal Pollution and Aquatic Life," Scientific American, Vol. 220, No. 3, p. 19 (March 1969).

56. The purpose of section 102(2)(E) is to give statutory authority to all Federal agencies to participate in the development of a positive, forward-looking program of international cooperation in dealing with the environmental problems all nations and all people share. 115 Cong. Rec. S 17451-17452 (daily ed., Dec. 20, 1969) (remarks of Mr. Jackson).

Thus, instead of imposing a duty on federal agencies like the other subsections of Section 102(2), this subsection merely grants such agencies statutory authority.

57. 5 U.S.C. s.552 et seq.

58. Executive Order No. 11514 requires the heads of federal agencies to:

(b) Develop procedures to insure 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.

(c) Insure that information regarding existing or potential environmental problems and control methods developed as part of research, development, demonstration, test, or evaluation activities is made available to Federal agencies, States, counties, municipalities, institutions, and other entities, as appropriate. 35 Federal Register 4247 (March 5, 1970).

59. Set forth in detail in Section 204 of NEPA. 42 U.S.C. § 4344.

60. 116 Cong. Rec. S 3726 (daily ed. March 13, 1970) (Department of Transportation News Release).

61. Letter of Congressman Reuss to Secretary of Transportation Volpe (Feb. 27, 1970).

62. The statement, dated September 9, 1970, was published in the Congressional Record, 92d Cong., 2d Sess., September 17, 1970 at S 15844. To date the Council on Environmental Quality still regards it as a "draft 102 statement" and has not made it available to the public. For the somewhat acrimonious background of Senator Proxmire's attempts to obtain the statement, see Cong. Rec. 92d Cong., 2d Sess., Sept. 15, 1970, at S. 15405.

63. 116 Cong. Rec. E 5253 (daily ed. June 4, 1970) (Remarks of Mr. Dingell).

64. A list of final statements filed by federal agencies in accordance with § 102(2)(C) of NEPA is contained in the Council's Progress Report on Implementation of § 102(2)(C) of National Environmental Policy Act, September 16, 1970.

65. For a critique of the environmental statement in the Alaskan Pipeline case see, Plaintiff's Reply and Rpe-hearing Memorandum at pp. 10-18, Wilderness Society v. Hickel Civ. No. 728-70 (D.C.D.C. 1970) (The memorandum is available from the Environmental Law Reporter. See Bibliography and Facsimile Service, 1 ELR 60000.

66. On April 8, 1970, the Council on Environmental Quality requested the Department of the Interior and the Federal Power Commission for section 101(2)(C) statements on the "Blue Ridge" hydroelectric project, Federal Power Commission Project No. 2317.

67. "Hickel Asks Stay on Florida Canal," N.Y. Times at p. 21 (June 9, 1970).

68. As of September 1970, the following judicial actions have been filed alleging noncompliance with NEPA:

Akers v. United States, No. 5724 (D.C.M. Tenn., filed April 23, 1970).

* Allakaket v. Hickel, Civ. No. 706-70 (D.C.D.C. 1970).

Alpine Lakes Protection Society v. Hardin, No. 8885 (D.C.W. Wash., filed April 14, 1970).

Association of Northwest Steelheaders v. Corps of Engineers of the U.S. Army, Civ. No. 3362 (D.C.E. Wash., filed March 11, 1970).

Bucklein v. Volpe, No. C-70200 (D.C.N. Cal., filed on June 19, 1970).

Elliot v. Volpe, No. 70-869-M (D.C. Mass., filed July 6, 1970).

Environmental Defense Fund v. U.S. Army Corps of Engineers, No. 2655-69 (D.C.D.C., filed Sept. 15, 1969).

Environmental Defense Fund. v. Corps of Engineers of the U.S. Army, Civ. No. 1722-70 (D.C.D.C., filed June 5, 1970).

Environmental Defense Fund v. Hardin, Civ. No. (D.C.D.C., filed August 5, 1970).

Environmental Defense Fund v. Hoerner Waldorf Corp., Civ. No. 1964 (D.C.W. Mont., filed Nov. 12, 1968).

Environmental Defense Fund v. Resor, Civ. No. 2394-70 (D.C.D.C., filed August 12, 1970).

Hilton Head Fishing Cooperative Inc. v. BASF Co., Civ. No. 70-105 (D.C.D.C., filed August 12, 1970).

* Izaak Walton League v. St. Clair, Civ. No. 5169-Civ-70 (D.C. Minn., filed Dec. 23, 1969).

Izaak Walton League v. Macchia, Civ. No. (D.C.N.J., filed August 3, 1970).

* Pennsylvania Environmental Council v. Bartlett, No. 70-123 Civ. (D.C.M. Pa., 1970).

Sierra Club v. Laird, Cov. No 70-78 (D.C. Ariz., filed May 25, 1970).

Soucie v. Volpe, Civ. No. 1570-70 (D.C.D.C., filed May 25, 1970).

* Stewart v. Resor, Civ. No. 70-551 (D.C.E. Pa., filed February 24, 1970).

* Texas Committee on Natural Resources v. U.S., Civ. No. 28962 (D.C.W. Tex. 1969).

* West Virginia Highlands Conservancy v. Island Creek Coal Co., No. 70182-E (D.C.W. Va., filed June 2, 1970).

* Wilderness Society v. Hickel, Civ. No. 728-70 (D.C.D.C. 1970).

* Cases in which the court has ruled that the plaintiff had sufficient standing for consideration of the merits or a temporary order.

For full descriptions of the above cases, see The Environmental Law Digest, 1st ed., September 1970.

As of September 1970, the following administrative actions have been filed alleging non-compliance with NEPA:

In the Atomic Energy Commission:

In re Long Island Lighting Co. (License Application, Shoreham Nuclear Power Station Plant Unit No. 1), Docket 50-322.

In re Calvert Cliffs Coordinating Committee, filed June 29, 1970.

In the Federal Aviation Administration:

In re Environmental Defense Fund, Inc., filed May 25, 1970, No. 1035-7.

In the United States Coast Guard, 8th District:

In re Mississippi River Bridge Authority application for Mississippi River Bridge crossing, filed March 19, 1970.

In the Department of Health, Education and Welfare:

In re Environmental Defense Fund, Inc., filed on May 25, 1970.

In the Federal Power Commission:

In re Appalachian Power Company Project No. 2317.

In the Federal Communications Commission:

In re WNBC-TV, No. 3300 filed March 14, 1970.

69. A discussion of recent articles on standing can be found in Hanks, "An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969," n. 26, supra. See also Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450 (1970).

70. Scanwell Laboratories, Inc., v. Thomas, No. 22,863 (D.C. Cir. Feb. 13, 1970); Office of Communications of the United Church of Christ v. F.C.C., 359 F.2d 994 (D.C. Cir. 1966). See also Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965); Road Review League, Town of Bedford v. Boyd 270 F. Supp. 650 (S.D.N.Y. 1967); Sierra Club v. Hickel, __ F.2d __ (9th Cir. Sept. 16, 1970).

71. For cases in which plaintiffs have been granted standing, see n.68, supra.

72. Scenic Hudson Preservation Conference v. FPC 354 F.2d 608, 616 (2d Cir. 1965).

73. Especially since NEPA contains no "clear and convincing evidence of a contrary legislative intent." accord, Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970).

8. "Aggrieved" is defined as "Having suffered loss or injury; damnified; injured." Black's Law Dictionary (4th Edition).

74. The extent to which there is a conflict between the 9th and 2d circuits in regard to the interpretation of the "private attorneys general" language (see n.9, Sierra Club v. Hickel, supra.) in Citizens Committee for the Hudson Valley v. Volpe, supra is unclear. The court in the Hudson Valley case found that the Sierra Club was aggrieved within the meaning of the relevant statute and did not hold that the statute gave anyone a right to challenge agency action. The court in Sierra Club v. Hickel, supra, seems to agree that environmental injury can confer standing, but seeks to limit the definition of such injury.

75. The court in Sierra Club v. Nickel, supra, cites, with apparent approval, the Supreme Court's observation in the Data Processing case that injury "may be asthetic, conservational or recreational." Sierra Club v. Hickel, supra, Slip Op. p. 11. Presumably, a complaining party's injury does not depend on joinder by other parties. Conversely, a complainant's standing does not run to another party who wishes to join an action, but who is not an aggrieved party.

76. Pennsylvania Environmental Council v. Bartlett, Civil Action No. 70-123, D.C. Mid Penn. (1970).

77. Through use of the phrase "to the fullest extent possible," see p. 50037, supra.

78. 35 Federal Register 7391 (May 12, 1970).

79. Id.

80. See pp. 50036-50037, supra.

81. See p. 50048, supra.

82. The Pennsylvania case also contains dicta to the effect that Congress did not intend NEPA to apply to the Secretary of Transportation's review and approval of secondary highway routes:

A requirement that the Secretary of Transportation must make independent and affirmative evaluations of all phases of the multitude of State secondary highway projects relative to their impact on the environment not only would place a staggering burden on the Secretary, but would cause him to duplicate State investigations and determinations.

The plaintiffs in the Pennsylvania case did not contend that the Secretary had to make an independent evaluation of environmental effect:

The Secretary may delegate under 23 U.S.C. Section 117(a) duties of planning, locating and designating secondary highways, and it seems to follow that he may thereby delegate the environmental planning also. Still it does not follow that he may delegate the ultimate responsibility for the proper performance of the duties imposed by Congress under the National Environmental Policy Act. … if the Secretary of Transportation elects to delegate these duties, then it must certainly follow that he has the responsibility to see that the duties are properly performed. Brief of Plaintiffs in support of Motions for Additional Findings of Fact, to Amend Conclusions of Law and Judgment, and for Stay Pending Decision of the Motion for New Conclusions of Law and Amended Judgment at 11, Pennsylvania Environmental Council v. Bartlett, No. 70-123.

The court's decision in the Pennsylvania case illustrates the adage that hard cases make bad law. The environmental consequences of the contested action were not clearly detrimental. The project had effectively passed beyond a stage where it could be halted without inequitable harm to third parties. In short, the court was looking for grounds to refuse to apply the Act.

83. "The measure is designed to supplement existing, but narrow and fractionated, congressional declarations of environmental policy." S. Rep. No. 296, 91st Cong., 1st Sess. 9 (1969). "(B)y providing a statement of national goals, policies, and procedures, S. 1075 would give renewed and vigorous emphasis to the importance of existing environmental programs and legislation." Id. at 14. See also 115 Cong. Rec. S. 12117 (daily ed. Oct. 8, 1969) (Statement of Mr. Boggs).

84. 115 Cong. Rec. S 12114 (daily ed. Oct. 8, 1969) (Remarks of Mr. Jackson)

85. Id. at S 12113.

86. See n.8, supra.

87. 49 U.S.C. § 1431 (b)(4).

88. The President's Panel on the Environmental and Sociological impact of the SST found that "noise levels associated with SST operations will exceed 100 PNdB over large areas surrounding SST airports. It can be expected, therefore, "… that a very high percentage of the exposed population will find the noise intolerable…" The Federal Aviation Agency has established 108 PNdB as the maximum approach and sideline noise for subsonic aircraft, 36 C.F.R. § 1581, but no standard has been set for supersonic aircraft.

89. The FAA is required to issue regulations to "… Afford present and Future relief from unnecessary aircraft noise…" 49 U.S.C. § 1431(a)

90. 42 U.S.C. § 1857 et seq.

91. 33 U.S.C. § 466 et seq.

92. The Department of Interior's non-degradation policy states that existing high levels of water quality cannot be lowered to the water quality standards established pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 466 et seq., in the absence of compelling social necessity. See Compendium of Department of the Interior Statements on Non-degradation of Interstate Waters, U.S. Department of the Interior, Federal Water Pollution Control Administration (August 1968).

93. Id. at 1.

94. See n.48, supra.

95. This principle was established independently of NEPA in Citizens Committee for the Hudson Valley v. Volpe 69 Civ. 305 (S.D.N.Y. 1969), aff'd. Cir. Nos. 428-33. The District Court held that the Corps of Engineers had the responsibility to consider whether the Department of Transportation had the authority to issue permits for the construction of a causeway, even though the Corps' permit was only for the initial stages of the causeway construction. The Court noted: "The Corps in considering the application of the state was not operating in a vacuum … (A) piecemeal approach to the exercies of federal agency jurisdiction would … frustrate one of the main purposes of the Department of Transportation Act, i.e., the conservation of the country's natural resources." at p. 10 of the Court's opinion.

96. 35 Federal Register 7390 (May 12, 1970)

97. The decision was also based on exceeding the authority granted by the Mineral Leasing Act, 30 U.S.C. § 185, which restricts the width of a pipeline right-of-way to fifty feet plus the width of the pipeline.

98. (3) For the purpose of this preliminary injunction, it appears that the three applications are, in effect, a single application for a pipeline right-of-way.

(4) It appears that Defendant has not fully complied with the requirements of the National Environmental Policy Act of 1969 with respect to said application, when considered together. "Findings of Fact and Conclusions of Law" at 4. Wilderness Society v. Hickel, Civil Action 928-70 (D.C.D.C. Conclusions filed on April 23, 1970).

99. Despite proven geological faults in the Santa Barbara Channel and despite a disastrous oil spill, companies are still permitted to drill for oil in that area. See Baldwin, The Santa Barbara Oil Spill, 42 U. Colo.L.R. 33 (1970).

100. In the Alaskan pipeline case, the Department of Interior permits for construction of the haul road were to be granted with the understanding that TAPS had to prove that the pipeline could be constructed and operated safely before a pipeline permit would be granted. TAPS was willing to begin construction on the road before the pipeline permit was granted. But after the injunction against the Department of the Interior, this same proposal was made by the Alaskan legislature in a statute which would have advanced state funds for construction of the road as a state highway under a different federal grant of statutory authority. TAPS was to reimburse the state for the cost of the road construction, thus assuming the risk of non-granting of the pipeline permit. TAPS, however, stated that they could not make a commitment for reimbursement "until the movement of oil from the North Slope is assured." The (Washington, D.C.) Evening Star "Alaska Pipeline Setback" p. A-5 (June 13, 1970).

101. In "An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969" by Hanks, n. 26 supra, the authors argue that a standard of reasonableness must be applied to determine to which actions NEPA applies. Neither the Act nor the legislative history supports such a limitation.

102. FOE requested that WNBC-TV be required to air anti-automobile commercials under the ruling in Applicability of Fairness Doctrine to Cigarette Commercials, 9 F.C.C. 2d 921 (1967), aff'd. sub. nom. Banzhaf v. FCC, 405 F.2d 1082 (1968).

1 ELR 50035 | Environmental Law Reporter | copyright © 1971 | All rights reserved