10 ELR 50039 | Environmental Law Reporter | copyright © 1980 | All rights reserved

The Council on Environmental Quality's Regulations To Implement the National Environmental Policy Act — Will They Further NEPA's Substantive Mandate?

Mr. Liebesman is a trial attorney with the Land and Natural Resources Division, U.S. Department of Justice. He Served two separate six-month details at the Council on Environmental Quality (CEQ) in 1978 and 1980, where he was involved with the development and implementation of CEQ's regulations under the National Environmental Policy Act. This article reflects the personal views of the author and may not reflect the official views of the federal government.

[10 ELR 50039]

Section 101 of the National Environmental Policy Act of 1969 (NEPA)¹ sets forth a clear statement of national goals and policies to protect and enhance the quality of our environment. Section 101(a) requires that the federal government attempt "to create and maintain conditions under which man and nature can exist in productive harmony."² Section 101(b) directs the government "to use all practicable means, consistent with other essential considerations of national policy," to achieve six overlapping and comprehensive objectives of environmental preservation and enhancement to the end that the Nation may —

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

(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.³

Since the enactment of NEPA ten years ago, agency decision makers have been required to implement this national policy for the environment concurrently with their preexisting statutory mandates as well as other important national objectives. Although resolution of that tension would appear to require changes in the substance as well as the processes of agency decision making, the unfortunate fact is that much of the controversy over NEPA's implementation has focused on whether the procedural provisions of NEPA, particularly the environmental impact statement (EIS) requirement of § 102(2)(C), have been satisfied. As a result of this focus on the EIS, decision makers have often lost sight of the real purpose behind the passage of NEPA — better and more environmentally sound decisions.

The Council on Environmental Quality's (CEQ's) regulations to implement the procedural provisions of NEPA,⁴ which were issued in 1978, are designed to return NEPA's focus to an emphasis on environmentally sound decisions. In a strict sense the regulations are not "substantive" because they do not mandate elevation of environmental consideration above all other factors. What they do is to implement the Act's procedural provisions with specific tools to promote better and more environmentally sensitive decisions. They require articulation of how environmental considerations were incorporated as an integral part of each agency's substantive action. In this manner they not only insure that environmental considerations will be worked into the process but also specify that agencies must carry forth those considerations and monitor compliance even after decisions are made.

Thus, the Council's regulations derive their essential value from the substantive goals of NEPA's § 101. This two-part article will examine the basic relationship between these goals and the regulations. Part I will explore the background and judicial interpretation of NEPA's substantive mandate, and Part II will focus on how the specific provisions of the regulations can help further NEPA's basic purpose.

Part I — The Substantive Requirements of NEPA

Background: NEPA's Goals and Policies

The text of § 101 of NEPA imposes duties on federal agencies that go to the heart of their decisions. It requires the government to "use all practicable means, consistent with other essential considerations of national policy," to achieve the broad policy goals enunciated in § 101(b). This leaves little doubt that Congress intended the Act to achieve a substantive result in furthering the protection and enhancement of our ecological resources. This conclusion is underscored by examining § 101 of the Act in the context of §§ 102(1) and 105. Section 102(1) ties the policy goals of § 101 with the "action forcing" provisions of § 102 by directing specifically that the laws and regulations of the United States be interpreted and administered in accordance with the policies set forth in the Act.⁵ Section 105 adds that "the policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies."⁶ Thus, the "action forcing" requirements of § 102(2) were intended to give effect to the "broad mandate" of agency responsibility in § 102(1) and supplement existing authority under § 105.

Section 102(2) outlines specific steps which each agency must follow to insure that § 101 policies will be integrated into agency mandates as required by § 102(1). These action forcing provisions cover a range of factors from the "use of a systematic interdisciplinary approach" in decision making to the identification of "methods and procedures … which will insure that presently unquantified [10 ELR 50040] environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations …."⁷ The detailed statement required by § 102(2)(C) is the best evidence of congressional intent to utilize procedural reform for meeting the substantive ends of § 101. The requirement of a written document in the agency decision-making process represents a congressional rejection of the presumption that each agency can be expected automatically to meet the § 101 goals in good faith and on an ad hoc basis. Instead, it represents a recognition of the need for a formal vehicle "which must accompany the proposal through existing agency review processes" and thereby insure that § 101 goals are integrated into the decisionmaking process.

NEPA's legislative history implicitly supports the view that Congress envisioned a substantive reorientation of agency responsibilities. According to the Senate report, NEPA's broad policy provisions are "a body of law" which would determine the propriety of agency actions.⁸ Language in the conference report confirms this interpretation.

A statement of environmental policy is more than a statement of what we believe as a people and as a Nation. It established priorities and gives expression to our national goals and aspirations. It provides a statutory foundation to which administrators may refer for guidance in making decisions ….⁹

Indeed, the conference report notes that § 102, and in particular the language "to the fullest extent possible," was intended to broaden the responsibilities of agencies to act upon the policies set forth. The House managers particularly noted that this language was a replacement for House language that originally read "nothing in this Act shall increase, decrease or change any responsibility" created by other provisions of law.¹⁰ The managers further stated that they "are of the view that the new language does not in any waylimit the Congressional … directive to all agencies of the Federal Government …" and that "no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance."¹¹

The view that NEPA's goals and policies create a substantive "body of law" is supported by the commentators. A significant 1974 article advanced the position that "… the principal purpose of NEPA was to establish a national policy for resolving conflicts between environmental and other important values …."¹² In other words, a purely procedural approach would clearly frustrate the basic intent of Congress to create a "body of law" to determine the environmental propriety of agency actions.

Several years later, Professor William Rodgers elaborated on this theme. Focusing on the federal government's role under § 101 of NEPA in preserving our natural resources for the benefit of all Americans, he concluded that the language of § 101 "imposes discernable constraints on public resource decisions."¹³ He analogized between the government's trust responsibility under § 101 of NEPA and traditional case law on the nuisance doctrine, noting that NEPA's requirement "to use all practicable means" to carry out the § 101 goals is consistent with court decisions under the nuisance doctrine requiring the use of the "best technology" to mitigate the environmental effects of nuisances. In Professor Rodgers' view, § 101 imposes definite responsibilities that all federal decision makers employ maximum technological effort to promote resource use in the environmentally soundest manner possible.¹⁴

Thus, § 101 creates a body of substantive law with which agencies must use "all practicable means consistent with other considerations of national policy" to comply. Section 102(1) links these goals to agency policies by requiring affirmative agency action. Indeed, if the specific goals of § 101 and the direction to "use all practicable means" to achieve them are treated separate from the specific procedural requirements of § 102(2), the intent of Congress to "give expression to our national [environmental] goals and aspirations" would be frustrated.

Judicial Construction of NEPA's Substantive Mandate

In the ten years since NEPA became law, the courts have often been asked to interpret this expression of congressional intent. Two approaches have essentially evolved as courts have applied NEPA's substantive mandate. The first and most predominant approach is a restrictive one, emphasizing whether federal agencies have actually considered the substantive goals of § 101 in arriving at a certain decision but not imposing an affirmative responsibility to maximize mitigation of adverse effects. Combining the standards of NEPA and the Administrative Procedure Act (APA),¹⁵ this approach permits courts to overturn substantive agency decisions only in case of arbitrary and capricious disregard for NEPA's § 101 goals. The second approach is much more affirmative. It emphasizes each agency's power and authority to condition its decisions and actions on environmental grounds and to mitigate the adverse environmental effects of its activities to the maximum.

The few Supreme Court decisions on NEPA have tended to emphasize the limited role of the courts in reviewing agency compliance with the Act. In its first significant opinion addressing NEPA's substance, Kleppe v. Sierra [10 ELR 50041] Club,¹⁶ The Court reversed the District of Columbia Circuit Court of Appeals' ruling that a comprehensive EIS was required for the Interior Department's Northern Great Plains coal leasing activities, stating that

Neither the statute [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions. See Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 481 (2d Cir. 1971) cert. denied, 407 U.S. 926 (1972). The only role for a court is to insure that the agency has taken a "hard look" at environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken, Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972).¹⁷

Two years later this principle was further developed by the Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.¹⁸ In that decision, the Court applied both NEPA and the APA in determining whether the Nuclear Regulatory Commission (NRC) had illegally granted an operating license for a nuclear power plant without considering the alternative of energy conservation in detail. In reversing the D.C. Circuit's ruling that NEPA and the APA had been violated, the Court tangentially addressed the matter of substantive review under NEPA.

NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 U.S.C. § 4332. See also Aberdeen and Rockfish R. Co. v. SCRAP, 422 U.S. 289, 319 (1975). It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute … [citations omitted].¹⁹

When the Court again addresed NEPA in 1979 it faced the generic issue of whether appropriations requests amounted to "proposals for legislation" under NEPA. In answering that question, the Court took a more positive approach toward the basic issue of substantive NEPA responsibility, emphasizing that NEPA's substantive goals must be an integral part of federal agency decision making. In that case, Andrus v. Sierra Club,²⁰ a unanimous Court relied heavily on the Council's new NEPA regulations in holding that EISs need not be prepared to accompany such appropriations requests. In ruling that "CEQ's interpretation of NEPA is entitled to substantial deference …,"²¹ the Court noted that an EIS is only the "outward sign that environmental values and consequences have been considered ….²² Moreover, the "thrust of § 102(2)(C) is thus that environmental concerns be integrated into the very process of agency decisionmaking …. For this reason the [CEQ NEPA] regulations require federal agencies to 'integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values ….'"²³ This language reveals that the Court views CEQ's regulations as an integral means of achieving the substantive goals and policies of the Act.

Most recently, the Court's decision in Strycker's Bay Neighborhood Council, Inc. v. Karlen²⁴ essentially reiterated the principles laid down in Kleppe and Vermont Yankee. On January 7, 1980, the Court overturned the opinion of the Second Circuit in a NEPA challenge to the Department of Housing and Urban Development's (HUD's) approval of New York City's West Side Urban Renewal Plan, a necessary condition for federal financing of low- and moderate-income housing to be built under the plan.

Invalidating for the second time the agency's approval of the project on the ground that it called for excessive concentrations of low-income residents in the area, the court of apeals observed that this was not "the integration contemplated in NEPA."²⁵ The Supreme Court reversed the Second Circuit Court of Appeals in a summary per curiam opinion with Justice Marshall writing a strong dissent. Referring to the long history of the litigation, in which the federal district court had twice upheld HUD's compliance with NEPA, and relying on the Court's opinion in Vermont Yankee, the Supreme Court said,

[InVermont Yankee] we stated that NEPA, while establishing "significant substantive goals for the Nation" imposes upon agencies duties that are "essentially procedural." As we stressed in that case, NEPA was designed "to insure a fully-informed and well-considered decision," but not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency."²⁶

The Court also relied on the Kleppe decision in reiterating that NEPA does not require environmental factors to be elevated above "other admittedly legitimate considerations." Neither NEPA nor the APA provides any support for such a reordering of priorities by a reviewing court.²⁷ Thus, the Court concluded that HUD had met its responsibilities by considering the environmental consequences of its decision to redesignate the proposed site for low-income housing.

A very important conclusion is implicit in the Strycker's Bay decision. Had HUD acted in an arbitrary and capricious manner and not given proper consideration to environmental factors, a reviewing court could have overturned its decision as arbitrary or capricious under the Administrative Procedure Act. The opinion is fully consistent with NEPA's recognition that "other essential considerations of national policy" may be found by the agency to outweigh the choice of the environmentally preferable alternative.

[10 ELR 50042]

Kleppe, Vermont Yankee, and Strycker's Bay essentially stand for the same principle: an agency's substantive decision may not be overturned if it was based on a full and good faith consideration of environmental factors. As CEQ has recently suggested in commenting on Strycker's Bay, this means that a court may not set up a different standard in reviewing agency compliance with NEPA's mandate than would be required under the APA.²⁸ In short, this line of Supreme Court decisions in no way detracts from the principal goal of CEQ's implementing regulations, which is to insure that federal agencies make more environmentally sensitive decisions and to require the development of a record to articulate that goal.

The degree of treatment given NEPA's substantive mandated by the lower federal courts has been more extensive than that given by the Supreme Court. The lower courts have developed a body of substantive NEPA law which articulates the limits of judicial review over substantive agency decisions while stressing the affirmative role of § 101 in administrative decision making. In the landmark case of Calvert Cliffs' Cordinating Committee, Inc. v. Atomic Energy Commission²⁹ the District of Columbia Circuit struck down the Atomic Energy Commission's "crabbed" interpretation of its NEPA responsibilities and addressed the circumstances under which a court may issue an injunction against an action for substantive reasons:

The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless itbe shown that the actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values.³⁰

Judge Wright's formulation in Calvert Cliffs, while indicating that § 101 has a "substantive mandate," sets forth a rather limited standard which has been largely followed over the years. His standard was derived from the language of the APA as interpreted by the Supreme Court in Citizens to Preserve Overton Park v. Volpe.³¹ Its thrust was to require agencies to engage in good faith balancing of environmental costs of a given project against economic and technical benefits while at the same time suggesting that a reviewing court could not reverse a decision by an agency which engaged in good faith balancing. Calvert Cliffs did not require maximum mitigation of adverse environmental impacts.

A year later, the Court of Appeals for the Eighth Circuit in Environmental Defense Fund, Inc. v. Corps of Engineers³² affirmed the lower court's approval of the EIS for the Gillham Dam in Arkansas but faulted the district court for failing to consider seriously the plaintiff's substantive claims under § 101 of NEPA. In strong language, the court held that "the unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailes impact studies which will fill government archives."³³ However, the court fully accepted the Calvert Cliffs balancing rationale and the limited judicial role in reversing an agency decision on substantive grounds. It has been suggested that the court justified its review of the substantive agency decision more on the APA than NEPA, never really addressing whether under NEPA "the court had power to consider the substance of the decision to build the dam in question."³⁴

Since these early decisions, virtually all circuits have sanctioned a combined application of NEPA and the APA in recognizing that § 101 contains sufficiently definite standards for judicial review.³⁵ In fact, two circuits concluded initially that NEPA created no enforceable substantive rights, later to recognize that the APA provides authority for substantive review and that NEPA supplies applicable standards.³⁶ Only the United States Court of Appeals for the Tenth Circuit Seems not to have been presented with an opportunity to overturn its ruling that NEPA is purely procedural.³⁷

Commentators have concluded that the Calvert Cliffs — EDF formulation is a restrictive view of substantive NEPA responsibilities, prohibiting reversal of a decision which does not promote maximum mitigation of environmental effects as long as the overall decision was not "arbitrary or clearly gave insufficient weight to environmental values.³⁸ According to these commentators, the sheer impossibility of judicially reviewing the degree to which agencies weigh the pros and cons of numerous factors indicates that substantive decisions may only be set aside in rare instances where an agency clearly acts in bad faith. Judicial review under this arbitrary and capricious standard appear significantly less rigorous than to question whether an agency has "used all practicable means, consistent with other essential considerations of national policy" to achieve the environmental goals of § 101. [10 ELR 50043] Presumably under Calvert Cliffs, an agency may be in compliance with NEPA even though it has not "used all practicable means" to lessen the adverse environmental effects of a proposed action.

Indeed, writers have even suggested that the Calvert Cliffs "balancing of costs and benefits" approach fails to properly implement the intent of Section 101.³⁹ On close examination, the mandate to "use all practicable means, consistent with other essential considerations of national policy" requires more than just a good faith balancing of environmental costs and benefits. In fact, Senator Jackson stated during debate on NEPA that "any adverse effects which cannot be avoided … [must be] justified by some other stated consideration of national policy."⁴⁰ This requirement of "justification" implies that federal agencies must either select the least adverse alternative or that a careful evaluation of national policy considerations be made to support another choice. Where the least adverse alternative is not chosen for some stated reason of national policy, this forlmulation would appear to require the imposition of the strongest possible mitigation to minimize impact, insuring that the original intent of Congress under § 101 will be met.

The debate over the Calvert Cliffs — EDF formulation and the issue of agency responsibility to maximize mitigation leads into a second and related line of NEPA cases. This line of cases goes to the issue of whether an agency may use NEPA to take final agency action solely on environmental grounds despite possible conflict with other statutory obligations.The first case to address this issue was the 1970 Fifth Circuit opinion in Zabel v. Tabb.⁴¹ In Zabel, the plaintiff had applied to the Corps of Engineers for a dredge and fill permit. The Corps denied the permit, but the plaintiff convinced a federal district court to compel issuance of the permit. The Fifth Circuit reversed, holding that NEPA and the Fish and Wildlife Coordination Act authorized the Corps to condition or deny the permit despite lack of interference with navigation, the Corps' principal authority. In particular, the court relied on the supplementary authority in those statutes to act purely on environmental grounds.⁴² Similar reasoning was adopted by the Ninth Circuit in Gulf Oil Corp. v. Morton,⁴³ which held that NEPA authorized the Secretary of the Interior to make a decision on the sale of outer continental shelf (OCS) oil and gas leases entirely to preserve natural resources. And in Environmental Defense Fund, Inc. v. Mathews,⁴⁴ the district court held that the Food and Drug Administration may rely upon NEPA in restricting the use of nonreturnable plastic beverage containers. Of particular note is the court's statement that

in light of NEPA's broad mandate that all environmental considerations be taken into account, we find that NEPA provides FDA with supplementary authoirity to base its substantive decisions on all environmental considerations including those not expressly identified in the FDCA and FDA's other statutes …. [Further, NEPA] supplements its existing authority to permit it to act on those considerations ….⁴⁵

The most significant case addressing NEPA's substantive mandate is the 1979 opinion of the First Circuit in Public Service Co. of New Hampshire v. Nuclear Regulatory Commission.⁴⁶ In that case, the NRC's Atomic Safety and Licensing Board, using NEPA as authority, conditioned the construction permits for the Seabrook Nuclear Power Plant on the rerouting of power transmission lines around rather than through a swamp. The NRC justified these permit conditions under NEPA, noting that the 200-foot-high steel lattice work would constitute a "visual insult" to this pristine area and that practicable alternative routes existed. On appeal, the applicant asserted that the NRC's reliance upon NEPA to condition the permit would inevitably clash with its organic authority under the Atomic Energy Act.⁴⁷ The court rejected the argument, citing NEPA's substantive command that federal agencies are to "use all practicable means" to avoid environmental "degradation" and to preserve" natural aspects of our national heritage" to the extent consistent with "other essential considerations of national policy." In finding that the exercise of NEPA's substantive mandate would not conflict with the NRC's organic statute, the court held that:

Once having found that the Commission has jurisdiction over the transmission lines, we think it clear that, under the dictates of NEPA, it was obliged to minimize adverse environmental impact flowing therefrom.⁴⁸

Thus, Public Service Co. is the strongest judicial statement to date that an agency may pursue the substantive objectives of NEPA while carrying out its primary statutory mission.

It is worth examining the relationship between the concept of "maximum mitigation" and the command in § 101(b) to pursue environmental goals "consistent with other essential considerations of national policy." As Profesor Rodgers suggests, the latter them "is a narrow one." The use of the word "essential" makes clear that net every conflicting policy justifies a sacrifice of environmental values. Rodgers further suggests that it is hard to imagine a situation where this term would sanction "a feckless use or an unnecessarily pollution one."⁴⁹ Thus, this is a rigorous standard which gives rise to a presumption in favor of applying the best technology to minimize impacts or picking the least damaging alternative in virtually all instances. However, Rodgers' analysis is not in line with the vast body of NEPA case [10 ELR 50044] law. No court has ever required an agency to apply the best state-of-the-art technology and to insure that the highest possible mitigation be achieved before it can take action on a proposal. Rather, courts have generally looked to see if an agency has made a good-faith effort to minimize adverse environmental effects consistent with other statutory goals and policies.

A complete discussion of substantive NEPA case law should at least make reference to two recent decisions which seek to limit the enforcement of mitigation obligations arising from the NEPA process. In both Mountainbrook Homeowners Association, Inc. v. Andrus⁵⁰ and Noe v. Metropolitan Atlanta Rapid Transit Authority,⁵¹ the court addressed private causes of action to enforce commitments made within an EIS but not actually included in the formal decision of the agency.

In Mountainbrook, plaintiffs claimed that the federal and state defendants had failed to comply with the provisions of an EIS providing that large piles of rock "cut" from a mountain during construction ofa highway would be "continually shaped to contours which are comparable to and level with the adjacent topography." The court curtly granted defendant's motion to dismiss, finding that NEPA creates no implied cause of action to enforce the promises of an EIS. In Noe, the reasoning was similarly abrupt. The court held that a property owner was not entitled to an injunction barring the Department of Transportation (DOT) from disbursing federal transit funds on the ground that the construction of a subway exceeded the noise levels anticipated in DOT's EIS. The court noted that "plaintiff has not pointed to any section of [NEPA] which would require the defendants to abide by the particulars of [an EIS]. We refuse to imply both a duty and a cause of action …."⁵² Despite the rather vague allusions within these opinions to the substantive requirements of NEPA, it has been aptly noted that these cases do not, or do not properly, bear on the question of NEPA's substantive provisions but rather the matter of judicial policing of agency compliance with § 102(2)(C).⁵³

Conclusion

In sum, virtually all federal courts confronted with the issue of NEPA's substantive mandate have acknowledged implicitly that § 101 sets forth goals which agencies must adhere to in making decisions. However, the Supreme Court and lower federal courts have largely emphasized the limited role of the courts in reviewing whether agencies have adequately addressed those goals in their substantive decisions. Those opinions have defined the limits of review in terms of whether the agency has carefully considered and balanced environmental factors in making decisions, but they also show that courts are not empowered to overturn decisions for failing to choose the environmentally preferable alternative or requiring maximum mitigation.

A few courts have taken a more affirmative position on agency responsibility to implement § 101. These holdings arose out of suits challenging agency authority to adopt environmentally protective positions as opposed to asserting that the agency had not gone far enough in considering environmental factors. They unmistakably advance the position that § 101 indeed has a substantive component which authorizes agencies to impose the highest mitigation requirements or explain why "other essential considerations of national policy" dictate another result and further hold that agencies can make substantive decisions on environmental grounds alone.⁵⁴

As part two of its article will discuss, CEQ's NEPA regulations have tried to accommodate the predominant standard of substantive NEPA review by developing careful, standardized procedures for ensuring a good faith, informed consideration of environmental factors in agency decision making. At the same time, the regulations recognize the rigorous obligation of federal agencies to use NEPA affirmatively and to mitigate the effects of their activities unless other "essential" national policy considerations dictate something less. This is to be done through a clear articulation of the basis of the decision and the alternatives considered, and a statement of mitigation which is contained in a "record of decision."

Part II — CEQ's NEPA Regulations

Background and Overview

The Council on Environmental Quality's regulations to implement the procedural provisions of NEPA are designed to awaken federal agencies to their NEPA obligation to reach environmentally sound as well as procedurally [10 ELR 50045] correct decisions.⁵⁵ At first glance, questions arise as to whether the regulations were intended to have any substantive effect since they expressly implement the Act's "procedural provisions."⁵⁶ However, upon closer examination, it becomes evident that the goals of § 101 were not very far from the mind of the Council in issuing the regulations. The regulation's statement of purpose cites the goals of § 101 in noting that "… the President, the federal agencies and the courts share responsibility for enforcing the Act so as to achieve the substantive requirements of section 101."⁵⁷ The statement also notes that the ultimate goal … is not better documents but better decisions …."⁵⁸ After having sketched, in Part I, the general outlines of NEPA's substantive mandate, this article will show, in Part II, how this aspect of the statute is implemented by CEQ's regulations.

The final issuance of CEQ's regulations was the culmination of a lengthy process and reflected a codification of NEPA law dating back to the Act's inception on January 1, 1970. The regulations replaced guidelines⁵⁹ which had been issued by previous Councils pursuant to Executive Order No. 11514 to assist agencies in carrying out NEPA's most conspicuous requirement — the preparation of the environmental impact statement under § 102(2)(C).

Although the Council has consistently conceived of the guidelines as non-discretionary standards for agency decision making, one court has considered them "merely advisory."⁶⁰ However, a good number of courts treated the guidelines as having a virtually binding effect.⁶¹ All federal agencies issued implementing regulations under NEPA which generally followed the guidelines' basic approach. Despite this, many inconsistencies developed. These ranged from inconsistent terminology to differences on public participation and use in the decision-making process.⁶²

Early in the Carter Administration it became obvious that there was a need for uniform, binding NEPA regulations. A special report of the President'sCommission on Federal Paperwork, Environmental Impact Statements, stated that

Congress has directed statutorily (42 U.S.C. 4332 et seq.) that the policies and procedures of the several agencies should be consistent so as to assure full compliance with the purposes and provisions of NEPA. To the extent permitted by law, the President should require all Federal agencies to develop consistent regulations and definitions and assure coordination among Federal agencies in EIS preparation.⁶³

During the course of the year preceding this report, the staffs of the Paperwork Commission and CEQ's congressional oversight committee, as well as leading NEPA commentators, specifically recommended that the Council issue binding regulations instead of guidelines. Many of the deficiencies in the NEPA process and the need for uniform procedures leading to better decisions were also documented in a report prepared by the General Accounting Office.⁶⁴

In response to these recommendations, President Carter issued Executive Order No. 11991 on May 23, 1977.⁶⁵ The express intent of the President in carrying out these recommendations was highlighted in his environmental message to Congress which transmitted the newly signed executive order. The President stated that the issuance of the regulations will "require all federal agencies to meet the criteria and provisions of § 102(2) of NEPA." The executive order directed CEQ to "issue regulations to federal agencies for the implementation of the procedural provisions of the Act" and mandated that the heads of federal agencies shall "comply with regulations issued by the Council except where such compliance would be inconsistent with statutory requirements." His order stated that the regulations must be

designed to make the environmental impact statement process more useful to the decisionmaker and the public; and to reduce paperwork and the accumulation of extraneous background data in order to emphasize the need to focus on real environmental issues and alternatives.⁶⁶

Shortly after issuance of the order, CEQ embarked [10 ELR 50046] upon a lengthy process of drafting the regulations. It received testimony from a broad array of public officials, organizations, and private citizens at public hearings held in June 1977. Following the hearings, CEQ met with every federal agency and circulated draft regulations to all federal agencies in December 1977. Agency comments were studied in detail and informal redrafts recirculated. On June 9, 1978, the regulations were published in proposed form in the Federal Register.⁶⁷ The regulations were promulgated in final form on November 29, 1978.⁶⁸

The final product is a comprehensive codification of NEPA principles which addresses all of the provisions of § 102(2) of the Act, not just the requirement for an environmental impact statement. The regulations carry out the broad purposes and spirit of the Act, citing the substantive goals of § 101 as the "policy to be implemented by the action forcing procedures of Section 102."⁶⁹ The new regulations are intended to accomplish three principal aims — to reduce paperwork, to reduce delays, and above all to produce better decisions — thereby better accomplishing the law's objective, which is to protect and enhance the quality of the human environment.

It is in the area of producing better substantive decisions that the regulations seek to implement fully the policies in § 101. In this respect, the regulations emphasize the entire NEPA process in every phase of agency decision making, from early planning through final agency action and subsequent followup. This is done in several ways.

Emphasis on Early Planning to Assess Environmental Effects. The regulations stress federal agency involvement in project planning to determine the need for an EIS and provide guidance to private parties and state and local governments to ensure that environmental studies are initiated as soon as federal involvement can be foreseen.⁷⁰ Concise environmental assessments are to be prepared to assist in determining the need for an EIS and otherwise complying with the Act, including the requirements of § 102(2)(E) regarding the consideration of alternatives apart from the EIS itself. The regulations also codify important definitions such as "significantly"⁷¹ and "major Federal action."⁷²

The Scoping Process. When an EIS is required, the regulations establish a new procedure called "scoping" to make sure that the important issues are selected for attention from the beginning.⁷³ This process involves consultation, at the start of the EIS process, with state and local agencies and all federal agencies which are involved in a project. Key issues are identified and agency responsibilities for preparation of the document are allocated. The intent is to ensure that environmental review is integrated with other planning at an early stage.

Emphasis on Real Alternatives and Their Impacts. The NEPA process is to focus on real options so that the EIS will contain the range of alternatives under actual consideration by the decision makers⁷⁴ and to allow an evaluation of each alternative in sufficient detail for a proper comparison.⁷⁵

Writing Analytic and Accurate EISs. The regulations provide that the EIS identify and describe the qualifications of those persons preparing the statement⁷⁶ and that EISs be prepared directly by or under contract to a federal agency.⁷⁷ This is to ensure the objectivity of the data in the EIS.

Facilitating Public Involvement. The regulations direct agencies to make diligent efforts to involve the public in making decisions covered by NEPA in several specified ways.⁷⁸ These include exhaustive public notice of hearings and meetings, making available environmental documents,⁷⁹ and an affirmative responsibility to solicit appropriate information from the public.

Preparing the Public Records of Agency Decision. For projects on which EISs are written, agencies must prepare a short record specifying the ultimate decision, identifying the environmentally preferable course of action, and, if that course of action was not adopted, identifying specific considerations of national policy justifying the choice of another alternative.⁸⁰

Avoiding and Minimizing Environmental Damage. Agencies must provide that mitigation measurses developed during the EIS process be incorporated into the final decision of the agency. The agency must also include appropriate conditions in grants, licenses, or approvals to implement mitigation measurses. In certain instances, agencies may provide for monitoring of such conditions.⁸¹

A Process for Making Environmentally Sound Decisions

A discussion of how the regulations will further NEPA's goals is best understood in tracing the NEPA process from early planning through final decision and implementation. This discussion will focus on NEPA's principal procedural mechanism — the environmental impact statement. However, initially it is important to note that the regulations seek to institutionalize all the requirements of § 102(2), not just the EIS requirement, to further the requirements of § 101 of the Act. In particular, agencies must develop implementing procedures to carry out the regulations, and they must institutionalize various § 102(2) requirements such as the use of a "systematic, interdisciplinary approach"⁸² and the identification of methods and procedures "to insure that presently unquantified environmental amenities and values may be given appropriate consideration."⁸³

The regulations also stress careful consideration of the [10 ELR 50047] environmental significance of proposed actions in determining whether an EIS is required and careful attention to the § 102(2)(E) mandate to consider alternatives where proposals involve "unresolved conflicts concerning alternative uses of available resources." The regulations do this through formal recognition of the environmental assessment as a concise public document to be used by agency decision makers. Also, the regulations codify NEPA definitions which have evolved through the years. For example, "major Federal action," is defined in part as "reinforc[ing] but not hav[ing] a meaning independent of significantly."⁸⁴

However, it is in the area of EIS preparation that the regulations especially have a substantive effect on decision making. The early planning process is the key stage in launching a proposal consistent with NEPA's goals. The scoping process, which must commence immediately after an agency issues a notice of intent to do an EIS, is designed to bring all interested parties together, both proponents and opponents of the project, to determine the scope of significant issues to be analyzed in depth,⁸⁵ Allocate assignments for preparation of the EIS among lead and cooperating agencies,⁸⁶ and coordinate the timing of the preparation of environmental analyses and the agency's planning and decision-making schedule.⁸⁷ During the scoping process, agencies may set page and time limits on environmental documents.⁸⁸

Two essential principles underlie the concept of scoping. First, agency integration of the NEPA process with other planning at the earliest possible time is necessary to "insure that planning and decisions reflect environmental values, … avoid delays later in the process and head off potential conflicts …."⁸⁹ In the words of the District of Columbia Circuit in Scientists Institute for Public Information v. AEC, such early and open planning will result in EISs which "contain meaningful and objective information which … can practically serve as an input into the decisionmaking process …."⁹⁰ Second, scoping recognizes that the public plays a significant role in the NEPA process, and serves to institutionalize it as well as enhance its effectiveness.⁹¹

Effective use of the scoping process and other requirements of the regulations will presumably lead to the next critical step in the process leading to an environmentally sound decision — preparation of a clear and analytical EIS. In furtherance of this goal, the regulations call for a new EIS format. Under the new format, the EIS document is to be organized to stress the alternatives section, which has been characterized as the "linchpin" and the "heart" of the EIS.⁹² The EIS must sharply define the issues and provide a basis for choosing among alternatives,⁹³ evaluate the "no action" alternative and alternatives outside the jurisdiction of the lead agency,⁹⁴ identify mitigation measures for each alternative⁹⁵ and identify the preferred alternative.⁹⁶

The regulations also mandate other devices to make the EIS more analytical and a better source of information for the public and decision makers. The summary section must stress major conclusions clearly and within 15 pages.⁹⁷ The "purpose and need" section must briefly address the specific purpose of the proposal.⁹⁸ The affected environmental section should be confined to what is necessary to understand the effects of alternatives and should not be verbose.⁹⁹ The regulations also recommend that agencies no longer write separate sections of EISs addressing § 102(2)(C)(i), (ii), (iv), and (v) of NEPA and instead combine them into a new section entitled "environmental consequences."¹⁰⁰

In requiring EISs which are analytical, the regulations also focus on a very critical issue — the integrity and objectivity of the information and analysis. The principal mechanism for lessening possible conflicts of interest is the requirement that EISs be prepared by or under contract to a federal agency and that contractors preparing [10 ELR 50048] the EIS attest that they have no financial or other interest in the project.¹⁰¹ At a minimum, the responsible agency must provide guidance, participate in the preparation of and independently evaluate the EIS and accept legal responsibility for its content.¹⁰² These safeguards protect against the increasingly serious problem of federal agencies' over-reliance on EISs prepared by consultants retained by project sponsors.¹⁰³

Further, the regulations utilize two accepted NEPA concepts: incorporation by reference,¹⁰⁴ and identification of incomplete and unavailable information where relevant.¹⁰⁵ The former allows the agency to incorporate material into an EIS by reference to cut down on EIS bulk without impeding agency decision making. The latter requires, where relevant, that an atency make clear that certain relevant information or scientific material is lacking or that uncertainty exists. The agency must then clearly articulate the need for going forward with the action in the face of uncertainty and include a worst-case analysis on the probability or improbability of its occurrence.¹⁰⁶

Aside from the requirements governing EIS preparation, several other provisions of the regulations are designed to assist in furthering the § 101 goals. Section 1506.6 specifically identifies affirmative agency obligations to involve the public. Agencies must provide public notice of NEPA-related hearings and the availability of environmental documents. Through a variety of identified ways,¹⁰⁷ agencies are encouraged to hold or sponsor public hearings and meetings.¹⁰⁸ They also must affirmatively solicit appropriate information from the public and make all EISs and comments received available under the Freedom of Information Act without charge to the extent practicable.¹⁰⁹

To give meaning to public involvement, agencies must articulate their response to comments made on draft EISs. The regulations require agencies to affirmatively solicit comments from all public and private entities which have an interest in the action. In response to significant comments, the agency must either modify alternatives including the proposed course of action,¹¹⁰ develop and evaluate alternatives not previously given serous consideration by the agency,¹¹¹ supplement, improve, or modify its analysis make factual corrections, and/or explain why the comments do not warrant further agency response.¹¹² All substantive comments must be attached to the final EIS. Also, the agencies must prepare a supplemental EIS and recirculate it where the deficiencies in the draft are pervasive.¹¹³ This section of the regulations will surely influence the achievement of § 101's goals by requiring agencies to respond in definite ways to comments and issues raised by the public, agencies, and other interest groups.

In recognition of the fact that the procedural requirements of the CEQ regulations would be ineffective if an agency were free to take action before completion of the NEPA process, the regulations prohibit the premature commitment of resources. Section 1506.1 provides in part that "until an agency issues a record of decision … no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact, or (2) Limit the choice of reasonable alternatives …." Further, § 1506.1(b) requires the federal agency to "promptly notify any non-federal applicant that the agency will take appropriate action to insure that the objectives and procedures of NEPA are achieved" when the federal agency learns that the nonfederal applicant is about to take environmentally harmful action.

This requirement codifies extensive case law requiring a thorough and objective evaluation of every proposed action's environmental consequences before interim steps may go forward, especially if a substantial commitment of resources is involved. For example, in Scientists Institute for Public Information v. AEC, the D.C. Circuit recognized the obligation of NEPA compliance before allowing even initial technological development of a massive R&D program. As the court stated:

Once there has been, in the terms of NEPA, "an irretrievable commitment of resources," in the technology development stage, the balance of environmental costs and economic and other benefits shifts in favor of ultimate application of the technology.¹¹⁴

The foregoing review of the procedural and substantive requirements of CEQ's regulations leads to the crucial question of whether agencies are in fact following the regulations and writing better EISs (which presumably will lead to better decisions). The answer to this question is not conclusive since the regulations have only been in effect for about a year and a half. However, CEQ has recently concluded a preliminary review of agency compliance with the regulations on the basis of meeting with agency NEPA staff around the country.¹¹⁵ CEQ's study [10 ELR 50049] study focused on 242 draft EISs and 88 records of decision prepared since the regulations' effective date.

The review was not intended to address the adequacy of any particular EIS or record of decision or pass on the merits of any proposal. Further, CEQ's review did not address questions of information or analysis which may be missing from a given EIS or record of decision. Rather, CEQ's review was confined to those aspects of the cocuments which are apparent on their face and whether they appear to meet the requirements of CEQ regulations.¹¹⁶

CEQ came up with the following general conclusions:

Overall Evaluation — Generally agencies are not presently preparing EISs which adequately inform decisionmakers and the public of the environmental consequences of an action in a way which will assist and guide decisions. While most EISs follow our format they still tend to be more encyclopedic than analytic. However, the groundwork has been laid by many agencies to improve their documents, and the recent trend has been in favor of more analytic EISs.

Alternatives including the proposed action (§ 1502.14) — Much improvement is needed in the quality of this section. It is often not the focus of the [draft] EIS even where our recommended format is used.In other instances, the old format is used. There, a very poor non-analytical alternative section follows a detailed description of the affected environment. Another major problem is the failure adequately to analyze the no action alternative or alternatives outside the jurisdiction and control of the lead agency. In many EISs, the alternatives are weighed in favor of construction and development. Many EISs do not emphasize mitigation measures as much as they should and do not cross-reference sections on affected environment or environmental consequences.

Despite these problems, there are some positive signs. Some agencies have developed a good analytical approach to alternatives analysis. Those agencies give substantial treatment to each alternative, including no action and alternatives outside the agencies' jurisdiction. A number of EISs even include a comparative chart which greatly assists the public and the decisionmakers.

Affected Environment (§ 1502.15) — Agencies still put too much detail in this section, often including statistics and charts which are more proper for the appendix. However, excessive presentation of the affected environment is less encyclopedic where EISs use our recommended format. We expect this section to be considerably smaller than the environmental consequences section. This section is especially poor where agencies combine a detailed project report (with verbose descriptions of affected environment) with a cursory and short EIS. There, the reader must wade through an overly detailed description of the environment in the report because the EIS does not really describe the affected environment.

List of Preparers (§ 1502.17) — Some agencies have omitted this section in some EISs. Most agencies include this but merely list names and titles with very little discussion of educational background or experience and virtually no identification of areas of EIS responsibility. This even occurs where outside consultants have been retained. Because of inadequate treatment, it is hard to tell whether a systematic, interdisciplinary approach has often been used.

Recommended Format (§ 1502.10) — The agencies have generally followed our format and are producing more analytic EISs. Some agencies really use our format effectively in preparing EISs which focus on alternatives section and relate that section specifically to environmental consequences with good emphasis on mitigation. Other agencies use our format but over-emphasize technical detail in affected environment section while giving insufficient attention to alternatives and environmental consequences. Some agencies use their own format to fit into their decisionmaking structure which may still result in a good analytical document.

However a number of agencies still use the old format without any compelling reason to do so. In such cases, the EISs are encyclopedic and not analytic with too much detail and insufficient focus on alternatives analysis.

Incomplete and Unavailable Information (§ 1502.22) — EISs rarely even address this requirement.The need to address this and include a worst case analysis is especially critical for many new energy development projects where considerable important information is not available.

Writing (§ 1502.8) — Recently filed [draft] EISs have improved considerably in writing style and clarity.Some agencies are seriously trying to write clear documents in large type with a minimum of technical material but with enough graphs and charts to make the documents understandable by decisionmakers. Other agencies need to improve in writing style. The type is often very small and the headings are hard to follow. Also, many agencies combine overly technical project reports with very cursory EISs. While combining documents is desireable, combining an EIS with a complex technological document may defeat the goal of clear EISs. Further, many EISs use technical terminology which can only be understood by a scientifically trained person.

Environmental Consequences (§ 1502.16) — This section is usually written well where the EIS follows our recommended format and focuses on the alternatives analysis. EISs following our recommended format usually analyze each alternative's impact in terms of a number of factors such as energy uses, land development (including state and local land use plans), impacts on depletable resources, socio-economic, cultural and historic resources and indirect effects, thus keying directly into the alternatives section. In general this section appears to cover the required elements on NEPA's § 102(2)(C)(i), (ii), (iv), and (v), where agencies follow our recommended format.

The problems in this section arise where the agency either uses the old format or combines a skimpy EIS with a detailed project report. In both instances, it is hard to get a comprehensive feeling for environmental consequences of certain actions. Some EISs are so weighted in favor of construction and development that this section often gives inadequate treatment to cumulative impacts and mitigation in light of missing information. Also, indirect and cumulative effects are often given cursory treatment, especially where information is incomplete or unavailable.

Incorporation by reference (§ 1502.21) — Most EISs have a list of sources and material relied upon, which are also cited in the text of discussion. Also, the agencies often do not identify the location where studies relied upon may readily be obtained by the public.

Appendix (§ 1502.18) — Most EISs include this (optional) section, which is generally analytical substantiating the EIS analysis. However, many EISs simply include detailed statistics which could have been incorporated by reference and do not key the appendices into the EIS analysis.

List of Federal Permits and Approvals (§ 1502.25) — Many EISs do not adequately list all required federal permits or approvals.

Summary (§ 1502.12) — The majority of agencies have written fairly clear summaries which lay out the alternatives, summarizing major impacts, and present conclusions in a readable and understandable fashion without unnecessary detail. Other agencies need to improve in this category in that it is hard to locate the summary.

Purpose and Need (§ 1502.13) — The majority of agencies clearly lay out the purpose and need for action. However, a number of agencies seem to weight this section [10 ELR 50050] heavily in favor of construction or development alternatives. Other agencies bury this section in other parts of EIS such as in "description of proposed environment." Some agencies mistakenly look at the purpose of the EIS rather than the purpose of the proposed action.

The Extent to Which the EIS Advances the Requirements of Sections 101 and 102(1) of NEPA (§ 1502.1) — Many EISs contain too much encyclopedic detail and do not clearly focus on how the alternative including the proposed action achieve or do not achieve the substantive requirements of NEPA.¹¹⁷

The Record of Decision

It is at the very end of the NEPA process that the CEQ regulations link the EIS to the final agency decision. A "concise, public record of decision (ROD)" must then be prepared which relates the EIS and the substantive goals of § 101 to the final agency action. The ROD must articulate what the decision was, identify all alternatives including those considered environmentally preferable, and discuss factors including economic and technical considerations and any "essential considerations of national policy" which were balanced by the agency in making the decision.¹¹⁸ The record must also "state whether all practicable means to avoid or minimize environmental harm from the alternative chosen have been adopted and if not, why there were not."¹¹⁹ Further, it must summarize any monitoring and enforcement program where applicable for any mitigation.¹²⁰

Section 1505.3 then translates this articulation of agency action into implementation. Agencies must include appropriate mitigation conditions in grants, permits, or other approvals and must condition funding of actions on mitigation.¹²¹ This requirement should further the goals of the Act by integrating mitigation commitments into the final agency action.

This requirement to articulate and implement the final decision in light of § 101 goals derives from familiar principles of administrative law. The landmark case of Citizens to Preserve Overton Park v. Volpe¹²² addressed the APA standard of "arbitrary, capricious and an abuse of discretion, or otherwise not in accordance with the law,"¹²³ in terms of the record required in informal agency decision making.In order for the court to "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," Overton Park requires the preparation of a record disclosing the basis of the agency's determination. The requirement to articulate an agency's action and create a record for judicial review has become an accepted tenet of administrative law¹²⁴ which guards against "careless or hasty action."¹²⁵

The administrative law requirement of decision-on-the-record is supplemented by the provisions of NEPA. Section 101 states that it is "the continuing responsibility of the Federal Government" to "improve and coordinate Federal plans, functions, programs and resources" to achieve the section's six defined goals.¹²⁶ Section 105 states that the Act's "policies and goals" are "supplementary to those set forth in existing authorizations of federal agencies."¹²⁷ Thus, an agency must articulate its reasons for a decision under APA principles as well as the equally binding goals of NEPA's substantive mandate.

The record of decision requirement in CEQ's regulations was written to integrate this articulation requirement into the NEPA process.Presumably, an EIS process which utilized the tools described earlier would lead to a situation where the decision maker had all the information in front of him or her and could make an informed decision addressing both the agency's mission and NEPA's mandate. Section 1505.2 recognizes this and encourages the decision maker to combine NEPA findings for the record with other findings required by statute or regulation. Significantly, the regulations do not require the choice of the environmentally preferable alternative. Rather they track the language of § 101 to require identification of that alternative and "other essential considerations of national policy" (i.e., the agency's own mission) which may have led to the selection of a different alternative. Agencies must then identify the available mitigation techniques and explain why those not chosen cannot be imposed. In all cases, an agency must clearly articulate a monitoring and enforcement program even if maximum mitigation is impracticable.

In this way CEQ has accommodated the full line of cases on substantive NEPA review. Consistent with the Vermont Yankee-Strycker's Bay formulation, the agency's record of decision need not elevate environmental factors above all others but only that it ensure full consideration and incorporation of those factors in the final decision. Consistent with Zabel-Public Service Co., the record of decision stresses an agency's affirmative authority to minimize adverse environmental impacts. Finally, the requirement of § 1505.3 fully translates these requirements into affirmative agency action consistent with the principle in Public Service Co. It recognizes that in order for the § 101 goals to be fully achieved, implementation of substantive conditions made part of the final decision must be enforced.

CEQ's recent oversight program has also addressed records of decision prepared since the effective date of the regulations. CEQ has emphasized the vital importance of preparing clear, concise RODs which meet the requirement of § 1505.2 and link the actual decision to the NEPA process and the goals and policies of § 101(b). CEQ has developed criteria for reviewing these RODs and has the following general conclusions on agency compliance through June 1980.

Identification of Alternatives, Including Those Which Are Environmentally Preferable (§ 1505.2(b)) — Most RODs clearly lay out the alternatives considered. However, [10 ELR 50051] they often do not clearly identify the environmentally preferable alternative or alternatives. In such RODs, one must read through the entire documents before understanding which alternative is environmentally preferable.

Clarity and Conciseness of the ROD (§ 1505.2) — There is a lack of uniformity in preparing concise RODs. Some RODs are far too long, having been written more for litigation than for public review. Such RODs often exceed 15 pages with detailed discussion of the proposed action, alternatives and impact. Other RODs are far too short and inadequate in coverage. They merely identify the decision and alternatives considered and do not give a clear picture of the bases of the decision and mitigation to be required. However, a number of RODs fit within these two extremes and are clear, succinct statements of the decision as the regulations require.

Identification of Economic and Technical Factors and Other Considerations Which Were Balance By the Agency in Making Its Decision (§ 1505.2(b)) — While most RODs describe economic and technical considerations which relate to the proposal, they do not clearly discuss and analyze how such considerations led to a decision not to adopt the environmentally preferable alternative or alternatives.

Public Availability (§ 1505.2) — Most RODs do not indicate public availability on their face. However, a few RODs indicate that they have been sent to interested parties. In some cases, the agency notices the availability of the ROD or even publishes the full text in the Federal Register.

Mitigation, Monitoring and Enforcement (§ 1505.2(c)) — Most RODs clearly indicate mitigation and monitoring requirements. Several even list specific mitigation provisions. However, RODs generally do not describe whether all practical means to avoid or minimize adverse environmental impacts will be achieved through the specific mitigation and monitoring provisions imposed.

Statement of What The Decision Was (§ 1505.2(a)) — Most RODs state what the final decision was. However, some RODs do not do this succinctly. In some cases, the agency indicates that one of several options will be acceptable and leaves the final decision up to the applicant.

Overall Evaluation — On the whole, RODs produced so far do not meet the intent of § 1505.2 as clear, concise and public statements of the agency's final decision. While RODs generally identify the decision, alternatives and mitigation, they need much improvement in clearly laying out the environmentally preferable alternative(s) and the specific considerations which were balanced by the agency in making its final decision.¹²⁸

As part of this effort, CEQ has identified two examples of a good ROD. One deals with the Federal Aviation Administration's (FFA's) approval of "Runway 22 Right Departure Procedures for Logan International Airport."¹²⁹ It ranks alternatives in terms of environmental, economic, safety, and socioeconomic preferability, and explains why FAA chose the alternative with the least adverse noise impact even though it had the highest added fuel cost. The second ROD deals with the very complex Department of Energy (DOE) Geothermal Demonstration Program.¹³⁰ DOE clearly rates each alternative on its merits and discusses the environmentally preferable alternatives. The DOD than discusses the reasons for rejecting those alternatives and going forward with the demonstration facility as planned. In addition, this ROD articulates specific mitigation measures which should minimize adverse impact and details a monitoring program which will be followed.

The examples discussed above show that the record of decision requirement could significantly change the way agencies articulate the bases of their decisions. Instead of developing a rationale for taking informal action on an ad hoc basis, agencies must now articulate their final decision in every case where an EIS is prepared. The regulations require that this concise record of decision contain commitments to mitigate adverse effects which must then be incorporated into final agency action.

Conclusion

The preamble to CEQ's regulations states in part that "the ultimate goal … is not better documents but better decisions …." This article has traced that theme by analyzing NEPA itself, its legislative history, judicial interpretations and specific provisions of the regulations. There is indeed a substantive aspect of the statute's mandate, as articulated in §§ 101 and 102(1), which supplements the existing authorities of all federal agencies. Clearly agencies must strive "to the fullest extent practicable" to achieve these goals in each and every decision made. Yet, the courts recognize that Congress did not intend environmental considerations to be elevated above all else at all times. Section 101's reference to "other essential considerations of national policy" has been interpreted to justify decisions made largely on other grounds, such as economics or technical feasibility.

The Supreme Court and the lower federal courts have set up a rather restrained standard of judicial review of agency action in thecontext of NEPA's substantive requirements. Under this formula the reviewing court inquires whether an agency has engaged in a good faith balancing of environmental factors in decision making but does not impose an absolute requirement to choose the environmentally best outcome or to maximize mitigation of adverse environmental effects regardless of cost. However, a number of courts have more affirmatively stressed agency authority to make substantive decisions largely on environmental grounds and condition impacts even though such action does not appear to be within the agency's primary mission. This latter group of cases truly go to the heart of the CEQ regulations and its expressed ultimate goal of better decisions.

The CEQ regulations are premised on the assumption that the best way to achieve that ultimate goal and further the mandate of § 101 is to structure the process of decision making. Thus, the regulations cover every aspect of the NEPA process from early planning to final decision. The intent is to create a truly open process whereby substantive environmental considerations can become an integral part of the decision making process. But CEQ also recognizes that these procedural tools are really meaningless without good faith implementation and accountability. In this regard the regulations tie the process to the heart of the Act — the substantive mandate under § 101 — by imposing requirements to articulate the decision and affirmatively condition and monitor agency actions on environmental grounds. Thus, while an agency does not have to [10 ELR 50052] impose maximum mitigation in every instance, it must clearly articulate why it cannot and in any event ensure that the actual decision will go as far as it can to reduce adverse impacts. In this way, the NEPA process is translated into final action which the public, the decision makers, and reviewing courts can clearly understand.

In the final analysis, the regulations will only be successful in furthering the § 101 goals if the agencies take them seriously. Although CEQ, EPA, and the courts will continue to oversee the NEPA process, only the agencies can truly integrate the substantive goals of NEPA into the decision-making process.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. & 41009.

2. 42 U.S.C. § 4331(a), ELR STAT. & REG. 41009.

3. 42 U.S.C. § 4331(b), ELR STAT. & REG. 41009.

4. 40 C.F.R. pt. 1500 et seq., ELR STAT. & REG. 46001.

5. 42 U.S.C. § 4332(1), ELR STAT. & REG. 41010.

6. 42 U.S.C. § 4335, ELR STAT. & REG. 41010.

7. 42 U.S.C. §§ 4332(2)(A), 4332(2)(B), ELR STAT. & REG. 41010.

8. S. REP. NO. 91-296, 91st Cong. 1st Sess. 4 (1969).

9. H.R. REP. NO. 91-765, 91st Cong., 2d Sess. 3 (1969).

10. H.R. REP. NO. 91-765, 91st Cong., 1st Sess., Statement of the House Managers, reprinted in [1969] U.S. CODE CONG. & AD. NEWS 2767, 2770.

11. Id.

12. Comment, The Least Adverse Alternative Approach to Substantive Review Under NEPA, 88 HARV. L. REV. 735, 739 (1974).

13. W. RODGERS, ENVIRONMENTAL LAW 742 (1977).

14. See also Briggs, NEPA A: A Means to Preserve and Improve the Environment — The Substantive Review, B.C. INDUS. & COM. L. REV. 699 (1974); Robie, Recognition of Substantive Rights Under NEPA, 7 Nat. Resources Law 387 (1974); Arnold, The Substantive Right to Environmental Quality Under The National Environmental Policy Act, 3 ELR 50028 (1973); Cohen & Warren, Judicial Recognition of the Substantive Requirements of the National Environmental Policy Act of 1969, 13 B.C. IND. & COM. L. REV. 685 (1972); Yarrington, Judicial Review of Substantive Agency Decisions, A Second Generation of Cases Under the National Environmental Policy Act, 19 S.D.L. REV. 279 (1974).

15. 5 U.S.C. § 706(2)(A), ELR STAT. & REG. 41005.

16. 427 U.S. 390, 6 ELR 20532 (1976). The previous decision in Aberdeen & Rockfish R.R. v. SCRAP (SCRAP II), 422 U.S. 289, 5 ELR 20418 (1975), addressed the timing of EIS preparation but not the scope of substantive review under NEPA.

17. 427 U.S. at 410 n.21, 6 ELR at 20537 n.21.

18. 435 U.S. 519, 8 ELR 20288 (1978).

19. 435 U.S. at 554-555, 8 ELR at 20297.

20. 442 U.S. 347, 9 ELR 20390 (1979).

21. 442 U.S. at 358, 9 ELR at 20393.

22. 442 U.S. at 350, 9 ELR at 20391.

23. Id.

24. 48 U.S.L.W. 3433, 10 ELR 20079 (Jan. 7, 1980).

25. 590 F.2d at 43, 9 ELR at 20002.

26. 48 U.S.L.W. at 3434, 10 ELR at 20080.

27. Id.

28. Letter from CEQ General Counsel Nicholas C. Yost to Phillip T. Cummings, Counsel, Committee on Environment and Public Works, United States Senate (Feb. 4, 1980).

29. 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

30. 449 F.2d at 1115, 1 ELR at 20349.

31. 401 U.S. 402, 1 ELR 20110 (1971).

32. 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

33. 470 F.2d at 298, 2 ELR at 20744.

34. Comment, Charting the Boundaries of NEPA's Substantive Mandate: Strycker's Bay Neighborhood Council, Inc. v. Karlen, 10 ELR 10039, 10041 (Feb. 1980).

35. See Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 9 ELR 20367 (D.C. Cir. 1979); Conservation Council of North Carolina v. Froehlke, 591 F.2d 1339, 9 ELR 20105 (4th Cir. 1979); Karlen v. Harris, 590 F.2d 39, 9 ELR 20001 (2d Cir. 1978), rev'd sub nom. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 48 U.S.L.W. 3433, 10 ELR 20079 (U.S. Jan. 7, 1980); Jackson County v. Jones, 571 F.2d 1004, 8 ELR 20300 (8th Cir. 1978); Environmental Defense Fund v. TVA, 492 F.2d 466, 4 ELR 20225 (6th Cir. 1974); Sierra Club v. Froehlke, 486 F.2d 946, 3 ELR 20823 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 3 ELR 20698 (1st Cir. 1973).

36. Compare Lathan v. Brinegar, 506 F.2d 677, 4 ELR 20802 (9th Cir. 1974) and Pizitz v. Volpe, 467 F.2d 208, 2 ELR 20379, as modified, 467 F.2d 208, 2 ELR 20635 (5th Cir. 1972) with Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 8 ELR 20065 (9th Cir. 1977) and Environmental Defense Fund v. Corps of Engineers (Tennessee-Tombigbee Waterway), 492 F.2d 1123, 4 ELR 20329 (5th Cir. 1974).

37. National Helium Corp. v. Morton, 455 F.2d 650, 1 ELR 20478 (10th Cir. 1971).

38. See Comment, The Least Adverse Alternative Approach to Substantive Review Under NEPA, 88 HARV. L. REV. 735 (1974); Briggs, NEPA As A Means to Preserve and Improve the Environment — The Substantive Review, 15 B.C. IND. & COM. L. REV. 699 (1974).

39. See Id.

40. The Senator's remarks referred to a provision of a precursor to NEPA which was deleted by the conference committee. See 115 CONG. REC. 29063 (1969). Senator Jackson indicated, however, that the change in language did not seriously affect the thrust of the statute. See 115 CONG. REC. 29055 (1969).

41. 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970).

42. The Court so held even though the congressional mandates were not in existence at the time the permit in question was denied since "the correctness of that decision must be determined by the applicable standards of today." 430 F.2d at 213, 1 ELR at 20030.

43. 493 F.2d 141, 4 ELR 20086 (9th Cir. 1973).

44. 410 F. Supp. 336, 6 ELR 20369 (D.D.C. 1976).

45. 410 F. Supp. at 338, 6 ELR at 20370.

46. 582 F.2d 77, 8 ELR 20557 (1st Cir. 1978) cert. denied, 439 U.S. 1046 (1979).

47. 42 U.S.C. § 2011 et seq., ELR STAT. & REG. 41201.

48. 582 F.2d at 85, 8 ELR at 20561.

49. W. RODGERS, ENVIRONMENTAL LAW § 7.5 at 748 (1977).

50. __ F. Supp. __, 9 ELR 20686, aff'd __ F.2d __, 10 ELR 20352 (4th Cir. May 16, 1980).

51. 485 F. Supp. 501, 10 ELR 20247 (N.D. Ga. March 4, 1980).

52. 485 F. Supp. at 504, 10 ELR at 20248.

53. See Comment, Enforcing the "Commitments" Made in Impact Statements: A Proposed Passage Through a Thicked of Case Law, 10 ELR 10153 (Aug. 1980).

54. It is useful to note the distinction between these affirmative NEPA cases and several decisions under the California Environmental Quality Act (CEQA).Unlike NEPA, CEQA was amended in 1977 to codify a substantive requirement to protect the environment when feasible. See CAL. PUB. RES. CODE §§ 21002, 21002.1, 21081; Comment, CEQA's Substantive Mandate Clouded by Appellate Court, 8 ELR 10208 (1978). This requirement had already been established by the courts of the state. In Burger v. County of Mendocino, 45 Cal. App. 3d 322, 119 Cal. Rptr. 568 (Cal. Ct. App. 1975), a developer applied for a permit to build a large motel in an ecologically fragile forest. Although an EIS concluded that of seven alternatives the applicant's was the worst environmentally, a local agency approved the application as submitted. The state court of appeals reversed the decision on its merits because the findings of the EIS were completely disregarded. In Friends of Mammoth v. Marin County, 9 Cal. 3d 247, 263 n.8, 104 Cal. Rptr. 761 n.8 (1972), the California Supreme Court even suggested situations where denial of a permit would be justified on environmental grounds alone. The court stated "Obviously if the adverse consequences to the environment can be mitigated, or if feasible alternatives are available, the proposed activity such as the issuance of a permit should not be approved." See also Polygon Corp. v. City of Seattle, 90 Wash. 2d 59, 8 ELR 20561 (1978), involving the denial of a building permit by a city agency solely on environmental grounds. The court rejected the argument that the State Environmental Policy Act (SEPA) imposed only procedural duties: "We held that SEPA confers on the City, acting through its superintendent of buildings, the discretion to deny a building permit application on the basis of adverse environmental impacts disclosed in the EIS."

55. 43 Fed. Reg. 55978 (Nov. 29, 1978), codified at 40 C.F.R. pts. 1500-1508, ELR STAT. & REG. 46001.

56. Exec. Order No. 11991 § 3(h), ELR STAT. & REG. 45003.

57. 40 C.F.R. § 1500.1, ELR STAT. & REG. 46015.

58. Id.

59. 40 C.F.R. pt. 1500 et seq. (1973), ELR STAT. & REG. 46003.

60. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424, 3 ELR 20287, 20288 (5th Cir. 1973).

61. See Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1309-10, 4 ELR 20666, 20668-69 (Douglas, Circuit Justice, 1974) ("CEQ is the Executive Office charged with administration of the National Environmental Policy Act …. [Its] determination is entitled to great weight …."); Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 421, 2 ELR 20017, 20021 (2d Cir. 1972) ("We would not lightly suggest that the Council, entrusted with the responsibility of developing and recommending national policies to foster and promote the improvement of the environmental quality, has misconstrued NEPA."); Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 86 n.8, 5 ELR 20640, 20643 n.8 (2d Cir. 1975) (the Council's guidelines carry "significant weight"); Sierra Club v. Morton, 514 F.2d 856, 873, 5 ELR 20463, 20470 (D.C. Cir. 1975), rev'd on other grounds sub nom. Kleppe v. Sierra Club, 427 U.S. 390, 6 ELR 20532 (1976) ("great respect"); Committee for Green Foothills v. Froehlke, 3 ELR 20861, 20862 n.1 (N.D. Cal. 1973) ("substantial weight"); Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1178, 2 ELR 20726 (6th Cir. 1972) ("great weight"); Morningside-Lenox Park Association v. Volpe, 334 F. Supp. 132, 144, 1 ELR 20629 (N.D. Ga. 1971) ("considerable weight"); Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 1388, 3 ELR 20667 (D. Md. 1973), aff'd per curiam, 500 F.2d 29, 4 ELR 20278 (4th Cir. 1974) ("great deference"); Sierra Club v. Morton, 395 F. Supp. 1187, 1188, 5 ELR 20383 (D.D.C. 1975) ("great weight").

62. The Council found that "assessments and impact statements have substantially improved government decisions over the past six years, but not as consistently or as well as they should and can." See COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL IMPACT STATEMENTS; AN ANALYSIS OF SIX YEARS EXPERIENCE BY SEVENTY FEDERAL AGENCIES 2 (1976).

63. REPORT OF THE COMMISSION ON FEDERAL PAPERWORK — ENVIRONMENTAL IMPACT STATEMENTS 16 (1977).

64. U.S. GENERAL ACCOUNTING OFFICE, THE ENVIRONMENTAL IMPACT STATEMENT — IT SELDOM CAUSES LONG DELAYS BUT COULD BE MORE USEFUL IF PREPARED EARLIER (August 1977).

65. Exec. Order No. 11991, "Protection and Enhancement of Environmental Quality," 42 Fed. Reg. 26967 (May 25, 1977), ELR STAT. & REG. 45003.

66. Id. § 3(h).

67. 43 Fed. Reg. 25231 (June 9, 1978).

68. 43 Fed. Reg. 55978 (Nov. 29, 1978).

69. 40 C.F.R. § 1500.1(a), ELR STAT. & REG. 46017.

70. 40 C.F.R. § 1501.2(d), ELR STAT. & REG. 46107.

71. 40 C.F.R. § 1508.27, ELR STAT. & REG. 46034.

72. 40 C.F.R. § 1508.18, ELR STAT. & REG. 46034.

73. 40 C.F.R. § 1501.7, ELR STAT. & REG. 46018.

74. 40 C.F.R. § 1502.2(e), ELR STAT. & REG. 46020.

75. 40 C.F.R. § 1502.14(b), ELR STAT. & REG. 46022.

76. 40 C.F.R. § 1502.17, ELR STAT. & REG. 46022.

77. 40 C.F.R. § 1506.5, ELR STAT. & REG. 46028.

78. 40 C.F.R. § 1506.6, ELR STAT. & REG. 46029.

79. All EISs and supporting documents are to be made available under the Freedom of Information Act. 40 C.F.R. § 1506.6(f), ELR STAT. & REG. 46029.

80. 40 C.F.R. § 1505.2, ELR STAT. & REG. 46027.

81. 40 C.F.R. § 1505.3, ELR STAT. & REG. 46027.

82. 40 C.F.R. § 1507.2(a), ELR STAT. & REG. 46031.

83. 40 C.F.R. § 1507.2(b), ELR STAT. & REG. 46031.

84. 40 C.F.R. § 1508.18, ELR STAT. & REG. 46033. See Minnesota PIRG v. Butz, 498 F.2d 1314, 4 ELR 20700 (8th Cir. 1974).

85. 40 C.F.R. § 1501.7(a)(2), ELR STAT. & REG. 46018.

86. 40 C.F.R. § 1501.7(a)(4), ELR STAT. & REG. 46018.

87. 40 C.F.R. § 1501.7(a)(7), ELR STAT. & REG. 46018.

88. 40 C.F.R. § 1501.7(b)(1), ELR STAT. & REG. 46018; 40 C.F.R. § 1501.7(b)(2), ELR STAT. & REG. 46018.

Recently, CEQ has commissioned a survey by Clarke-McGlennon Associates of Boston on the scoping process. The Council hopes to determine how the process is working so far and what improvements are needed. Discussions with CEQ Staff Counsel Barbara Brumble and Acting General Counsel C. Foster Knight.

89. 40 C.F.R. § 1501.2, ELR STAT. & REG. 46017.

90. 481 F.2d 1079, 1094, 3 ELR 20525, 20532 (D.C. Cir. 1973). See also generally, Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 10 ELR 20523 (1st Cir. June 25, 1980).

91. The scoping process is also important for defining the respective roles of lead and cooperating agencies in the process. Cooperating agencies are defined as those federal, state, or local agencies with jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal. 40 C.F.R. § 1508.5, ELR STAT. & REG. 46022. Agencies with jurisdiction by law (i.e., those which have authority to approve, veto, or finance all or part of a proposal) must be a cooperating agency at the lead agency's request. Those with special expertise, may be. Cooperating agency responsibilities include developing information and preparing environmental analyses including portions of the EIS as well as enhancing the lead agency's interdisciplinary capability. 40 C.F.R. § 1501.6(b)(3), ELR STAT. & REG. 46018.

92. Alaska v. Andrus, 580 F.2d 465, 474, 8 ELR 20237, 20242 (D.C. Cir. 1978).

93. 40 C.F.R. § 1502.14, ELR STAT. & REG. 46022.

94. 40 C.F.R. § 1502.14(d), ELR STAT. & REG. 46022.

95. 40 C.F.R. § 1502.14(f), ELR STAT. & REG. 46022.

96. 40 C.F.R. § 1502.14(e), ELR STAT. & REG. 46822.

The regulations recommend that the alternatives section be placed before the affected environment and environmental consequences sections "unless the agency determines there is a compelling reason to do otherwise." 40 C.F.R. § 1502.18, ELR STAT. & REG. 46022.

97. 40 C.F.R. § 1502.12, ELR STAT. & REG. 46021.

98. 40 C.F.R. § 1502.13, ELR STAT. & REG. 46021.

99. 40 C.F.R. § 1502.15, ELR STAT. & REG. 46022.

100. 40 C.F.R. § 1502.16, ELR STAT. & REG. 46022. This new section is to stress direct and indirect project effects and should discuss possible conflicts between the proposed action and regional, state, and local land use plans, energy requirements, urban quality, historic resources, and other concerns. It should also heavily stress mitigation measures.

101. 40 C.F.R. § 1506.5, ELR STAT. & REG. 46028.

102. Id.

103. The regulations also require inclusion of a list of EIS preparers together with their names and qualifications and the areas of the EIS for which each is responsible. 40 C.F.R. § 1502.17, ELR STAT. & REG. 46022. The EIS must also contain an index. If the agency prepares an appendix, it should be analytical and substantiate any analysis fundamental to the EIS. 40 C.F.R. § 1502.10(j), ELR STAT. & REG. 46021.

104. 40 C.F.R. § 1502.21, ELR STAT. & REG. 46023.

105. 40 C.F.R. § 1502.22, ELR STAT. & REG. 46023.

106. 40 C.F.R. § 1502.22(b), ELR STAT. & REG. 46023. See Alaska v. Andrus, 580 F.2d 465, 8 ELR 20237 (D.C. Cir. 1978).

107. 40 C.F.R. § 1506.6, ELR STAT. & REG. 46029.

108. 40 C.F.R. § 1506.6(c), ELR STAT. & REG. 46029.

109. 40 C.F.R. § 1506.6(f), ELR STAT. & REG. 46029.

110. 40 C.F.R. § 1503.4(a)(1), ELR STAT. & REG. 46024.

111. 40 C.F.R. § 1503.4(a)(2), ELR STAT. & REG. 46024.

112. 40 C.F.R. § 1503.4(a)(3), (4), (5), ELR STAT. & REG. 46024.

113. 40 C.F.R. § 1502.9(c), ELR STAT. & REG. 46021.

114. 481 F.2d 1079, 1090, 3 ELR 20525, 20532 (D.C. Cir. 1973). Cf. Kleppe v. Sierra Club, 427 U.S. 390, 6 ELR 20532 (1976) (noting dangers in irreversible commitments of resources prior to completion of NEPA process).

The CEQ General Counsel has prepared a legal opinion addressing an allegedly illegal premature commitment of resources in connection with the "environmentally unsatisfactory" referral of the I-84 project by EPA under § 309 of the Clean Air Act. See General Counsel's Opinion Re Interstate 84, 10 ELR 30019 (Sept. 1980).

115. Council on Environmental Quality, Talking Points on CEQ's Oversight of Agency Compliance with the NEPA Regulations (1980) (paper prepared by CEQ for interagency meetings).

116. Id. at 1.

117. Id. at 2-4.

118. 40 C.F.R. § 1505.2(b), ELR STAT. & REG. 46027.

119. Id.

120. 40 C.F.R. § 1505.2(c), ELR STAT. & REG. 46027.

121. 40 C.F.R. § 1505.3, ELR STAT. & REG. 46027.

122. 401 U.S. 402, 1 ELR 20110 (1971).

123. 5 U.S.C. § 706, ELR STAT. & REG. 41005.

124. See Doraiswamy v. Secretary of Labor, 555 F.2d 832 (D.C. Cir. 1976); Friends of the Earth v. EPA, 499 F.2d 1118, 4 ELR 20627 (2d Cir. 1974); Scherr v. Volpe, 466 F.2d 1027, 2 ELR 20453 (7th Cir. 1972); Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 5 ELR 20481 (D.C. Cir. 1975); Brooks v. Coleman, 518 F.2d 17, 5 ELR 20444 (9th Cir. 1975).

125. K. DAVIS, ADMINISTRATIVE LAW TEXT § 16.03 at 321 (West 1972).

126. See note 3, supra and accompanying text.

127. See note 6, supra and accompanying text.

128. See CEQ "Talking Points" paper, supra note 115, at 5-6.

129. Id. Copies of the two records of decision discussed herein were attached to the CEQ "Talking Points" paper.

130. Id.

10 ELR 50039 | Environmental Law Reporter | copyright © 1980 | All rights reserved