NEPA and Federal Policy-Making: NRDC v. Morton, Legislative Impact Statements, and Better NEPA Procedures

Congress intended for the National Environmental Policy Act to have a major impact on the manner in which the federal government formulates national policy affecting the environment. To achieve this result, NEPA declares a separate national environmental policy and sets out the obligations of federal agencies toward full implementation of that policy. No part of the NEPA process is more important to sound federal policy-making than the requirement of § 102 (2) (C) (iii) and § 102 (2) (D) that agencies fully consider alternative courses of action before setting federal policy. NRDC v. Morton reaches deeply into the meaning of this requirement and puts agencies on notice that if the actions which they propose to carry out have not been sufficiently examined in the light of the national environmental policy, the proposed actions may be held up until a full review of alternatives, basic underlying policies, and resource commitments takes place.

The decision, however, does not fully discuss the available techniques for making NEPA serve in the evaluation of federal policies affecting the environment. This Comment explores two promising avenues open to government: full implementation of the already-existing NEPA requirement that agency legislative proposals be accompanied by impact statements, and impact statement preparation by the Executive Office of the President or ad hoc inter-agency task forces. Several "tiers" of impact statements which overlap essentially the same programs may occur when NEPA is fully implemented in federal policy-making. The Comment closes with a discussion of why redundancy and excessive paperwork need not overload the federal process as NEPA is fully implemented.

Facts and Holdings

In NRDC v. Morton plaintiffs sued to obtain a full ventilation, through the NEPA process, of the alternatives available to leasing 80 oil and gas tracts on the Outer Continental Shelf off Louisiana. This sale, originally scheduled for early 1972, was rescheduled for December, 1971, as the Department of Interior's first step in a new five year plan to accelerate federal oil and gas leasing. The leasing program was formulated in response to the President's June 4, 1971 message on the nation's energy needs.

On July 31, 1971, six weeks after the Secretary's announcement that the leasing would take place, the Bureau of Land Management released a draft environmental impact statement on Interior's proposal to conduct the lease sale. Three months later, on October 28, 1971, the Director followed the draft with a final impact statement. On November 20, 1971, Interior announced that the proposed sale would take place and that sealed bids would be received in New Orleans until December 21, 1971.¹

Plaintiffs filed their complaint on November 30, 1971, alleging that Interior's final impact statement was inadequate because it failed to discuss some alternatives tothe lease sale, because those which it did discuss were treated in insufficient detail, and because it did not discuss the possible environmental impact of any of the alternatives. The district court ruled in plaintiffs' favor, preliminarily enjoining the sale until Interior had prepared an adequate impact statement. NRDC v. Morton, 2 ELR 20028 (D.D.C. Dec. 16, 1971). The court relief for its reasoning upon Calvert Cliffs' Co-ordinating Committee v. AEC, 1 ELR 20346 (D.C. Cir. 1971). On an expedited appeal the court of appeals sustained the judgment below, finding further that a properly prepared impact statement must discuss all reasonable alternatives, not only those which could be put into effect by the agency issuing the statement, but also those which other agencies, Congress and the President could put into effect. NRDC v. Morton, 2 ELR 20029 (D.C. Cir. Jan. 13, 1972). The court dismissed some alternatives suggested by plaintiffs as too speculative to merit Interior's attention. Reasonable alternatives, not those requiring "'crystal ball' inquiry," are the focus of the requirement. 2 ELR 20034.²

[2 ELR 10039]

The specific alternatives suggested by plaintiffs, and apparently accepted by the district court, ranged far and wide over possible federal responses to the nation's energy demands both in the short and the long run. Taken together, the alternatives suggested by plaintiffs raise a large number of the key issues which must be faced in the development of a national energy policy. For the short run plaintiffs suggested increasing substantially the level of oil imports, freeing oil produced onshore and in state-controlled offshore areas from the "market demand prorationing restrictions" now imposed by Texas and Louisiana, and permitting an increase in artifically low domestic natural gas prices to stimulate greater exploration and discovery. As alternatives which as least deserve discussion of their feasibility and environmental impacts over the long run, plaintiffs suggested fast breeder reactors, coal gasification or liquefaction, production of oil from oil shale, geothermal energy release, magnetohydrodynamic power cycles, solar energy and controlled thermonuclear reactions.

Other possibilities discussed by plaintiffs raised even more directly the connection between NEPA and the formulation of federal energy policy. Several alternatives which the federal government could pursue would go to the heart of the energy crisis and actually reduce energy demand. Cancellation of the lease sale would have such an effect, because the most likely result would be a price increase for oil, gas and their substitutes, with a consequent reduction in demand. Or, demand might be reduced by increasing the efficiency of energy consumption through federal regulation and research that set such goals as more effective insulation for homes and other buildings, and more efficient transmission and storage of electricity. Finally, federal legislation and administrative action could be fashioned which would assure that the price of energy fully reflected the environmental costs which its production imposed.

The court of appeals refused to find that the impact statement must cover long-term alternatives to the lease sale, specifically exempting "the development of oil shale, desulfurization of coal, coal liquefaction and gasification, tar sands and geothermal resources." 2 ELR 20034. In reaching this conclusion, the court accepted Interior's assertion that the lease sale was intended to fill the short-run fuel needs of the mid-1970s. However, the court approved impact statement discussion of alternatives which would take effect primarily in the short run, such as nuclear energy development, federal legislation or administrative action freeing current offshore and state-controlled offshore production from state market demand prorationing, the elimination of oil import quotas, and re-examination of the Federal Power Commission's natural gas pricing policies. The majority opinion did not mention the creation of direct federal incentives for onshore exploration and development; however, this alternative arguably would have an impact in the short run and should be included in the array of alternatives discussed.

The decision in NRDC v. Morton would have required a full scale review of federal energy and fuels policy before the sale could proceed, had the Secretary not withdrawn the lease sale.³ This is true even though the court excluded several long-range alternatives which deserved discussion. After deletion of the long-range alternatives, those remaining would still require important policy determinations by Congress, the President and a variety of agencies before they could be implemented.⁴ The court makes plain the policy orientation of its decision:

What NEPA infused into the decision-making process in 1969 was a directive as to environmental impact statements that was meant to implement the Congressional objectives of Government coordination, a comprehensive approach to environmental management, and a determination to face problems of pollution "while they are still available" rather than persist in environmental decision-making wherein "policy is established by default and inaction" and environmental decisions "continue to be made in small but steady increments" that perpetuate the mistakes of the past without being dealt with until "they reach crisis proportions." S. Rep. No. 91-296, 91st Cong., 1st Sess. (1969) p. 5. 2 ELR 20032.

And earlier:

[2 ELR 10040]

The scope of this project is far broader than that of other proposed Federal actions discussed in impact statements, such as a single canal or dam. The Executive's proposed solution to a national problem, or a set of inter-related problems, may call for each of several departments or agencies to take a specific action; this cannot mean that the only discussion of alternatives required in the ensuing environmental impact statements would be the discussion by each department of the particular actions it could take as an alternative to the proposal underlying its impact statement. 2 ELR 20032 [footnote omitted].

NEPA's Role in the Formulation of National Policies

The policy-oriented court of appeals decision in NRDC v. Morton draws attention back to Congress' primary purpose in enacting NEPA. The act, after all, is a national environmental policy act. Its legislative history is replete with broad language pointing out large areas of federal environmental impact, the control of which would require major changes in government decision-making. Court decisions to date under NEPA — and there have been at least 80 of them — have focused on the preparation of adequate impact statements for specific projects already well along in agency planning or in various phases of implementation. But NRDC v. Morton bridges the gap between the litigable projects to which late challenges can be mounted, and major policy-making. It does so by putting agencies on notice that if the action which they propose to carry out has not been sufficiently examined in light of the national environmental policy, the proposed action may be held up until a full review of basic underlying policies, resource commitments and alternatives takes place.

The decision in NRDC v. Morton does not say in so many words that by failing to submit impact statements at the time major policydecisions are made, the Administration invites the courts to impose a wide-ranging policy review on the hapless agencies that have been told to implement the Administration's programs. But the practical lesson to be learned from NRDC v. Morton is that such a "102 record" must be prepared, and that it must show a history of rational examination of gradually circumscribed, least-cost alternatives to environmental destruction. The court speculated about the more timely impact statement which the Administration could have circulated:

An evaluation of the environmental effects of all the alternatives in the area of the energy crisis might have been provided by an impact statement issued by an officer or agency with broad responsibility. This could have been done in June 1971 when the President abstained from exercising his authority to invoke a change in import quota administration and issued the Message that included the directive as to offshore leasing…. The impact statement function could have been assigned to the group designated by the President to coordinate and analyze overall energy questions for the executive branch — the Energy Subcommittee of the Domestic Council. In the absence of assignment of the impact statement function to an agency with broader responsibility, the implementation of the statutory requirement of the environmental review mandated by NEPA fell on the Interior Department when it took the first step in carrying out the broader energy program. 2 ELR 20033 [footnote omitted]

The court's ruling imposes a very different kind of burden on Interior than would have been imposed had an impact statement been prepared much earlier in the policy-making process. The department itself pointed out to the court that its authority to implement various alternatives was limited and that the far-reaching impact statement sought by plaintiffs was more appropriate for its legislative recommendations, i.e., at the earliest possible opportunity for agency analyses of potential impacts. See the discussion, infra, and NRDC v. Morton, ELR Dig. [222] Doc. C. Study of alternatives after the program of lease sales was initiated, even before the first in the series of nine sales, would have to proceed after major commitments of both prestige and resources. Study would have to take place under time constraints, as it obviously did in Interior's last-minute, unsuccessful attempt to amend its impact statement. See NRDC v. Morton, 2 ELR 20071 (D.D.C. Feb. 1, 1972). In short, a wide variety of important factors would inevitably change as attention shifted from policy formulation to program implementation.

While the court says that the necessary impact statement could have been prepared earlier in the Administration's formulation of energy and fuels policy, it goes on to say, "we do not suggest it was improper to defer the impact statement from the time of programmatic directive to the time of the implementing specific actions." 2 ELR 20033. This puzzling failure to distinguish impact statements for particular projects from those for policy-making may be explained by the importance which the court attributed to this particular lease sale. "The scope of this project is far broader than that of other proposed Federal actions discussed in impact statements, such as a single canal or dam." 2 ELR 20032. Hence the court apparently concluded that Interior's proposed lease sale was a major component of an overall policy decision and was as opportune an occasion as any to delve into the policy implications of that, and other, alternative decisions.

On the facts, this conclusion appears incorrect. The proposed lease sale was very much like "a single canal or dam" as far as the preparation of an impact statement was concerned. It was one among the many steps to be taken to implement an already-established policy set out in the President's energy message. The proposed sale was one of nine such sales contemplated and by itself would add only ten percent to the 3,782,796 acres already under federal lease off Louisiana.

The court therefore sheds almost no light on how the government should implement the policy aspects of NEPA. Perhaps this is as it should be, since the bench is not particularly knowledgable in the techniques of administrative policy-making. Further, although much [2 ELR 10041] has been said about the strict procedural compliance required by § 102 of NEPA, in the matter of policy formulation the Act leaves open a wide range of creative initiatives which the government could now take. These are explored in the next section.

Techniques for Making NEPA Serve in the Evaluation of Federal Policies

NRDC v. Morton significantly advances the implementation of NEPA in an area of great complexity. Yet the decision fails to distinguish statements for specific projects from statements for policy initiatives and stops short of requiring the adoption of definite mechanisms for applying NEPA to federal policy-making. Nevertheless, mechanisms for the evaluation through NEPA of federal policies need to be developed. Two promising avenues open to the government are (1) full implementation of the already-existing NEPA requirement that legislative proposals originating within the agencies be accompanied by impact statements, and (2) impact statement preparation by the Executive Office of the President or ad hoc inter-agency task forces.

NEPA Statements on Agency Legislative Proposals

Section 102 (2) (C) explicitly requires that impact statements accompany legislative proposals which have been developed by federal agencies. CEQ guidelines which implement this requirement state that impact statements on "national programs" must be prepared and that legislative recommendations, reports on legislation originating outside the agency, and appropriations requests must all be covered Guidelines, § 10 and § 5 (a) (i), ELR 46049. NEPA's legislative history reveals a consistent congressional interest in obtaining the earliest possible study of environmental impacts, including impacts which proposed legislation might have.

In spite of the suitability of legislative proposals for wide-ranging study under § 102 (2) (C), very few (perhaps 50) legislative impact statements have been filed to date. With the possible exception of the Senate Committee on Public Works, congressional committees hardly utilize NEPA at all in gathering information on the environmental impacts of bills under review. Thus, an opportunity is being missed to carry out broad policy-oriented studies before unwise commitments of prestige and resources are made.

As pointed out in an earlier ELR Comment (1 ELR 10090, 10092), the agencies have not prepared detailed guidelines about how they will comply with the § 102 (2) (C) requirement or with CEQ Guidelines on the subject. Clearly, the implementation of this component of the § 102 (2) (C) process has been sadly neglected. One alternative of course is for congressional committees to refuse to consider legislation not accompanied by impact statements. Such a requirement has been imposed by the Senate Committee on Public Works. See the Committee's Rule of Procedure 13, the full text of which appears in an earlier ELR Comment, 1 ELR 10146, 10149-50. Other committees might well adopt similar rules.

In the Executive Office of the President, the Office of Management and Budget might begin to enforce the explicit requirements of its Bulletin No. 72-6 and Circular A-19. Bulletin No. 72-6, ELR 46135, makes plain that agencies and OMB must respond to the requirement for legislative impact statements. A difficulty, however, with Bulletin No. 72-6 and with the CEQ guidelines is that they both allow an impact statement to be completed after the legislative proposal or report has been submitted, so long as "every effort" has been made to submit the impact statement on time. This requirement clearly should be changed. Legislative proposals or reports cannot be prepared with a full, early consideration of environmental factors unless impact statement preparation is ahead of, or at least contemporary with, the development of proposals and reports.

Similarly, the Council on Environmental Quality has not taken the initiative in pressing agencies to prepare legislative impact statements. CEQ has refrained from public criticism of agencies which are remiss in implementing NEPA, but this strategy, if it has been attempted, has not succeeded as far as legislative impact statements are concerned. CEQ, as part of the Executive Office of the President, has a special responsibility for Administration proposals originating within the agencies. CEQ has ample authority, based upon NEPA and Executive Order 11514, ELR 45003, to refuse to approve legislative proposals not accompanied by impact statements. In this respect, CEQ has authority to review environmental matters, an authority which is arguably analogous to OMB's authority to review budgetary matters.

Litigation to compel agencies to submit legislative impact statements may be necessary. Such litigation, however, requires the fashioning of relief which avoids an awkward attempt to enforce the requirement against Congress, e.g., by enjoining Congress from considering a legislative proposal which was not accompanied by an impact statement.⁵ NEPA imposes obligations on federal agencies only; it does not create rights and duties that provide a basis upon which a court might enter some form of impracticable relief against Congress.

Declaratory judgments and mandatory injunctive relief are the most likely remedies to pursue against agencies to force the preparation of legislative impact statements. In the event of non-compliance, most congressional committee members will at least question the propriety of proceeding with hearings on proposals [2 ELR 10042] on which the court has ruled. In the circumstances Congress itself may have to enforce a judgment against a tardy or recalcitrant agency.

Two lawsuits have attempted to require agencies to prepare legislative impact statements. In EDF v. Volpe, Civ. No. 151-72 (D.D.C. 1972), ELR Dig. [224], EDF and two Congressmen sued the Secretary of Transportation requesting that he prepare legislative impact statements for several transportation needs reports which he is required by statute to submit to Congress. Plaintiff Congressmen asserted that the impact statements would provide information useful to them in evaluating highway legislation which they intended to introduce in Congress. Plaintiffs sought a preliminary mandatory injunction, but on January 24, 1972, the court held that the Secretary's recommendations were intended for the long term only and were not "proposals for legislation." The court ruled from the bench, and no written opinion has yet been prepared.

Plaintiffs' lawsuits were filed quite late, close to the statutorily determined deadline for the submission of the reports. Nevertheless, the court appears to err in focusing upon the long-term effects of the Secretary's reports and in not adopting the view of CEQ's Guidelines that legislative "reports" are covered by NEPA as completely as are distinct legislative proposals.

A second federal district court has focused upon the speculative long-term impact of a federal program and has dismissed a lawsuit requesting that a legislative impact statement be prepared.Unlike EDF v. Volpe, supra, however, plaintiffs in Scientists' Institute for Public Information, Inc. v. AEC, Civ. Action No. 1029-71 (D.D.C. 1972), ELR Dig. [182], are currently preparing a vigorous appeal. In addition to coverage in a Digest entry ELR discussed SIPI v. AEC in an earlier Comment (1 ELR 10091); therefore, the facts of the case will not be set out in detail here. In SIPI v. AEC plaintiffs challenged the AEC's failure to prepare a comprehensive impact statement on the AEC's Liquid-Metal Fast Breeder Reactor Program (LMFBR), which the AEC launched in the late 1960's. The President's Energy Message of June 4, 1971, named the LMFBR Program as a matter of high priority for the Administration, thereby boosting the chances of full program development and the approval by Congress of $2.5 billion in total federal expenditures by the 1980's.

Plaintiffs argue that the AEC's LMFBR Program is a "proposal for legislation," because the program is a line item in the AEC's annual authorization and appropriation requests to Congress. Extensive testimony before the relevant congressional committees has been directed to various aspects of the LMFBR Program. In essence, plaintiffs are now requesting the court of appeals to find that appropriations requests are legislative proposals within NEPA's scope, as CEQ guidelines state.

In the decision now being appealed, Judge Hart of the Federal District Court for the District of Columbia held on March 24, 1972, that the AEC was not required to prepare an impact statement for its overall LMFBR Program and that NEPA was satisfied if the AEC prepared impact statements for individual facilities that are part of the program, such as the first demonstration plant. This decision, if affirmed, will be in essential agreement with the ruling in EDF v. Volpe, supra, and in direct conflict with the underlying rationale of NRDC v. Morton, supra. NRDC v. Morton puts agencies on notice that if actions which they propose to carry out have not been sufficiently examined in light of the national environmental policy, the proposed action will be held up until a full review of basic, underlying policies, resource commitments and alternatives takes place. The district courts in SIPI v. AEC and in EDF v. Volpe, both ruling from the bench, would allow agencies to delay impact statement preparation until opportunity for a prospective, wide-ranging examination of them had passed. These district court decisions effectively deny that NEPA has a policy-oriented primary thrust and make impossible full compliance with NEPA by the federal agencies. Clearly SIPI v. AEC and EDF v. Volpe interpret NEPA in precisely opposite ways from NRDC v. Morton. The court of appeals' view, for reasons set out earlier in this Comment, must prevail.

Impact Statement Preparation by the Executive Office or Inter-Agency Task Forces

NEPA is easiest to apply to individual agency action. The Act is less explicit, however, about how it affects major federal policy-making, although its legislative history clearly reveals that Congress intended for NEPA to have its primary impact in the policy area. The crux of the problem is that the formulation of federal policies affecting the environment will rarely be the responsibility of only one agency. This is the case whether or not legislation is being sought from Congress. Energy and fuels, land or water use, transportation, population, economic growth, tax, defense and other important policy areas affect several agencies. It may sometimes be appropriate for a single agency to initiate a broad policy review to satisfy NEPA's requirements, relying upon the Comment process of § 102 (2) (C) to obtain the views of sister agencies, state and local government and the public. The "lead agency" concept, set out in § 5 (b) of the guidelines of the Council on Environmental Quality, ELR 46049-50, lends support to this approach, whatever the shortcomings of the "lead agency" concept as applied to specific agency projects.

More often than not, however, important federal policy is made at a higher level. The problem is to foster the consideration of environmental impacts, through the NEPA process, on the supra-agency level at which policy formulation in fact occurs. This important result is difficult to obtain, because federal policy-making is notoriously political and amorphous. Policy-making may follow different developmental patterns depending upon timing, the Administration's evaluation of the importance of the area, and the lines of confidence and expertise which have been established by the Administration [2 ELR 10043] currently in office.⁶ Furthermore, there may be less to federal policy-making than meets the eye. Frequently, policy is developed on the spur of the moment, or simply by default and inaction. In short, no meaningful federal policy may exist at all, as NEPA's legislative history makes plain.

Thus, flexible, creative responses are needed so that the NEPA process may be applied wherever or however federal policy is made and whether or not legislation is being sought. Excluding for the moment congressional policy-setting through the legislative process, federal policy "centers" exist. No attempt will be made here to analyze the Executive's policy-making role, other than to point out that policy-making takes place in the White House, OMB, other branches of the Executive Office of the President, and, of course, the agencies. Policy-making by the Cabinet traces to initiatives by one of the groups mentioned, or, in an exceptional case, to a Cabinet-level task force.

The Executive Office of the President has or can acquire the expertise and funding necessary for the preparation of impact statements on proposed federal policies. It may be more appropriate, however, for ad hoc inter-agency task forces to prepare them, perhaps with the participation and assistance of the Executive Office. Important federal policy-making with environmental consequences does not occur frequently enough for this recommended course of action to become burdensome.

Within the Executive Office of the President, the Council on Environmental Quality and the Office of Science and Technology are the most likely offices for the preparation of policy-oriented impact statements. Other offices, e.g., the Council of Economic Advisors, the Domestic Council, etc., might also play significant roles. CEQ has not yet prepared impact statements, nor does it list OST as a federal agency with environmental expertise (although CEQ's Guidelines do mention the Office of Economic Opportunity, which is part of the Executive Office). Whether or not CEQ and OST are within the definition of "agency," they clearly are not prohibited from impact-statement preparation by NEPA. To fulfill NEPA's purposes, these two offices should take a creative lead in the formulation of policy-oriented impact statements for thorough public review. Such an initiative is not inconsistent with their function of advising the President.⁷

A limited, supplementary mechanism may exist in § 309 of the Clean Air Act through which the Environmental Protection Agency might initiate a suitable policy review. Section 309 charges EPA with the responsibility of commenting upon the possible environmental impact in the areas of EPA's authority of all legislative proposals developed by federal agencies, all new federal construction projects, and all other federal actions to which § 102 (2) (C) of NEPA applies. After review, EPA must make its comments public, and if EPA has found the proposal "environmentally unsatisfactory," EPA must publish this finding and "refer" the matter to the CEQ. An earlier ELR Comment on § 309 (1 ELR 10146-51) argued that an "unsatisfactory" finding and "referral" to the CEQ might be used to remove a decision to a higher level where appropriate interagency review of the overall impact of the proposed action could take place. See 1 ELR 10150. Such review might include the writing (or rewriting) of an impact statement by an inter-agency committee or by the CEQ, to which the unsatisfactory proposed action was "referred."

The use of inter-agency cooperative arrangements is frequently criticized. See, e.g., Stephen K. Bailey, "Managing the Federal Government," in Agenda for the Nation (Brookings Institution: 1968). The legislative history of NEPA states that such arrangements are usually palliative and do not improve environmental policy-making. See S. Rep. 91-296, 91st Cong., 1st Sess., p. 15 (1969). Yet most criticisms are made in the context of federal reorganization, frequently in reports advocating a particular form of reorganization or the creation of a new office or agency. The problem of the preparation of impact statements on proposed policy, however, cannot and should not be solved by reorganization. Policies affecting the environment are too broad in scope; moreover, while interagency reorganization might consolidate relevant policy considerations for one impact study, it would not necessarily consolidate them for the next. From the environmental perspective, different policies affect agencies in different ways.

Impact statement preparation by the Executive Offices or by inter-agency task forces — a new concept being urged in this Comment — must be distinguished from the recent, unsuccessful attempts by federal government to conduct inter-agency environmental reviews of the Four Corners power complex and the Cannikin nuclear detonation. Although important policy questions were involved in each instance, both remain highly project-oriented.

In the case of the Four Corners power complex, the review was conducted almost entirely by the Interior Department's Federal Task Force, on the Proposed Four Corners Power Development. The Task Force, which was staffed and controlled by Interior, included some participation by the Environmental Protection Agency on air and water pollution questions only and by the National Oceanographic and Atmospheric Agency on meteorology. The Department has vigorously [2 ELR 10044] maintained that the Task Force's imminent report must not be misunderstood to be a NEPA impact statement, insisting that separate impact statements on the power plants remaining to be built satisfy NEPA. The Four Corners complex and the litigation challenging it are extensively discussed in an earlier ELR Comment, 1 ELR 10113. See also the Comment at 1 ELR 10138. A recent decision, Jicarilla Apache Tribe of Indians v. Morton, 2 ELR 20278, 3 ERC 1919 (D. Ariz. March 14, 1972), holds that NEPA does not require that an impact statement be prepared for all of the six power plants in the Four Corners area, and that statements are not required at all for plants for which it is impracticable to reassess initiatives taken before NEPA became law.

The Cannikin litigation was extensively analyzed in an earlier ELR Comment, 1 ELR 10163. In the Cannikin case the AEC prepared draft and final impact statements on a proposed nuclear test detonation on Amchitka, an island in the Aleutian chain off Alaska, but an inter-agency review by the Undersecretary's Committee of the National Security Council attempted to sharpen the assessment of risks in secret meetings that focused upon a number of memoranda, also secret, which were prepared by various top scientists and government officials. While it is true that EPA, CEQ, OST, AEC and the State Department were involved, rather than providing an inter-agency review under § 102, the Undersecretary's Committee actually avoided NEPA's applicability. 1 ELR 10163. A secret comment process is hardly what NEPA intended. Until a full assessment of risks, such as was provided by the secret memoranda, is incorporated in a public impact statement, the benefits of interagency consultation cannot really be said to have been realized.⁸

Overlapping Impact Statements: Redundancy and Paperwork?

NEPA imposes a thoroughgoing impact-statement requirement which, if properly implemented along the lines discussed above, could result in the preparation of more than one statement for the same federal program. For example, one statement might be prepared on the implementing legislation, and later, another on agency policy in administering the program and coordinating it with existing policies. Finally, a number of statements might be prepared on specific programmatic initiatives, (grants, contracts, permits, licenses, etc.).

Some agencies have complained that NEPA sets inconsistent objectives and that examination of far-reaching policy alternatives imposes impossible demands on agency staffs who are at the same time attempting to write focused impact statements detailing the environmental impact which a specific federal action of modest proportions will probably have. Yet NEPA's intent to cover both levels of federal impact is plain:

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, 91st Cong., 1st Sess. p. 9 (1969).

In my judgment this far-reaching legislation is one of the most important conservation-environmental measures that has been considered by the Congress of the United States in many years. It marks an effort for the first time to impress and implant on the Federal agencies an awareness and concern for the total environmental impact of their actions and proposed programs. This awareness will be built into the agencies planning processes at the lowest levels, where, as we all know, most decisions are formulated and even finalized. Remarks of Senator Church, Senate Conferee on NEPA, 115 Cong. Rec. S 12117 (daily ed. Oct. 8, 1969).

CEQ's implementing Guidelines state:

It will often be necessary to use the [102] procedures both in the development of a national program and in the review of proposed projects within the national program…. The principle to be applied is to obtain views of other agencies at the earliest feasible time in the development of program and project proposals. § 10 (a), ELR 46049.

The solution to the problem which the agencies pose is to prepare different kinds of impact statements on various parts of the same federal program, and then interrelate them. Thus, wide-ranging impact statements could be prepared on proposed energy legislation, more focused statements on agency policies under existing and recently enacted legislation, and finally, specific, circumscribed statements on various programmatic initiatives. Impact statements in the last category could refer back to the gradually circumscribed, least-cost policy alternatives discussed in statements in the first two categories. Programmatic impact statements could thus focus upon immediate, practical alternatives to the specific proposed action. The court in NRDC v. Morton at one point appears to countenance this result. It says that "reference may of course be made to studies of other agencies — including other impact statements [emphasis added]." 2 ELR 20033.

Certainly a court would be justified in finding that compliance with NEPA had been achieved if the above "tiers" of impact statements had been filed. Hence the court might approve very cursory impact statements for some programmatic initiatives if these initiatives had been preceded by a broad NEPA review of the efficacy of the entire program or a large part of the program.

[2 ELR 10045]

For example, impact statements on specific permits under the Refuse Act Permit Program might be more or less exhaustive, depending upon the prior history of NEPA review which EPA and the Corps of Engineers had compiled. See the ELR Comment on the Kalur decision and the Refuse Act Permit Program at 2 ELR 10025. To take another, more detailed example from the area of pesticides, EPA might first prepare a wide-ranging, policy-oriented type of statement on legislative recommendations, or reports on such recommendations, for proposed pesticide legislation. Second, it might prepare statements on pesticide policy set by EPA, e.g., EPA's policy of confining its authority to suspend pesticide registrations under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 135-135k, to use as an emergency power only, to be exercised only after careful consideration of both the magnitude of the anticipated harm and the likelihood that it will occur. ("FIFRA confers broad discretion on the [Administrator] … not merely to find facts, but to set policy in the public interest." Wellford v. Ruckelshaus, 439 F.2d 599, 601 (1971).) Third, EPA might prepare focused impact statements on the various basic groups of pesticides, e.g. chlorinated hydrocarbons, referring in the statement to earlier statements. Fourth, EPA would have to prepare a short statement for each of the pesticides which it registers. Potentially the work load is great. EPA currently has registered 45,000 pesticides. However, reference to earlier statements would enable EPA to comply with its impact statement responsibilities in a more abbreviated, cursory fashion.

1. The announcement conflicted with the CEQ's Guidelines, § 10 (b), which require a 30-day interim before an administrative action may be taken.

2. The lease sale litigation raised two other questions of some importance which will be discussed only in this footnote.

(1) The government asked that plaintiffs post a $750,000 bond. The district court ruled on the bond separately, holding that to require the bond would effectively bar plaintiffs from obtaining judicial review. The court contrasted the value of the bond to the enormous value of the natural resources threatened. It also contrasted expected government revenue losses to pecuniary damage to private parties. Finally, the court noted that only nominal bonds had been required in similar environmental lawsuits and set bond at $100. NRDC v. Morton, 2 ELR 20089 (D.D.C. Dec. 17, 1971).

(2) On January 20, 1972, Interior withdrew the lease sale. Plaintiffs resisted the government's position that the case had been mooted by arguing that Interior was merely indecisive and would re-offer the leases at some later date. If the case were mooted, plaintiffs argued, they would have to pursue essentially the same litigation when the new sale was scheduled. The court held that Interior clearly intended to comply with NEPA and therefore was not merely forestalling illegal conduct. To find for plaintiffs the court would have to hold that future sales will be illegal, which was too speculative a conclusion for the court to reach. NRDC v. Morton, 2 ELR 20071 (D.D.C. Feb. 1, 1972).

3. Interior did in fact amend its impact statement to include a discussion of the alternatives omitted or inadequately covered in the original statement. It did not, however, circulate the revised statement for comment. The district court held that § 102 imposed a strict duty to circulate impact statements for comment to sister federal agencies, state agencies and others, and that Interior's revisions were subject to this duty. See NRDC v. Morton, 2 ELR 20071 (D.D.C. Feb. 1., 1972), the first court ruling specifically on the obligation to obtain comments on impact statements. The Secretary's withdrawal of the lease sale 10 days before this decision does not detract from the strict duty which the decision imposes.

4. For instance, in connection with oil import policy, the court said:

When the proposed action is an integral part of a coordinated plan to deal with a broad problem, the range of alternatives that must be evaluated is broadened. While the Department of the Interior does not have the authority to eliminate or reduce oil import quotas such action is within the purview of both Congress and the President, to whom the impact statement goes. The impact statement is not only for the exposition of the thinking of the agency, but also for the guidance of these ultimate decision-makers, and must provide them with the environmental effects of both the proposal and the alternatives, for their consideration along with the various other elements of the public interest. 2 ELR 20033 (footnote omitted).

5. See Statement by Roger C. Crampton, Chairman on the Effect of NEPA on Decision-Making by Federal Administrative Agencies, before the Senate Committee on Interior and Insular Affairs and the Committee on Public Works, March 7, 1972, pp. 18-19.

6. The President's first environmental message (1970) was prepared almost exclusively by the White House staff, while the 1971 message appears to have been developed largely by the Council on Environmental Quality.

7. OST has been held to be an "agency" subject to the Administrative Procedure Act in general and the Freedom of Information Act in particular. Soucie v. David, 1 ELR 20147 (D.C. Cir. 1971). See the ELR Comment at 1 ELR 10109. The court said, "the statutory definition of 'agency' is not entirely clear, but the APA apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions." 1 ELR 20147, 20148-49. CEQ would appear to fit this definition.

8. That CEQ has the expertise in some instances to prepare impact statements is proven by Chairman Train's very ably researched memorandum.