NEPA -- Reform in Government Decisionmaking: Reprinted from Environmental Quality, the Third Annual Report of the Council on Environmental Quality, chapter 7

NEPA — Reform in Government Decisionmaking: Reprinted from Environmental Quality, the Third Annual Report of the Council on Environmental Quality, chapter 7

The origins of nepa

nepa's enactment

On February 17, 1969, a bill was introduced in the United States House of Representatives "to provide for the establishment of a Council on Environmental Quality."¹ The following day, a measure with similar intent was introduced in the Senate.² In the next 11 months the two bills received Congressional consideration, with bipartisan sponsorship and support, were combined in conference, and were amended to proclaim their primary purpose: "to establish a national policy for the environment."³ The National Environmental Policy Act (NEPA)⁴ was signed into law by the President on January 1, 1970. It has become the basic policy-setting Federal law relating to protection of the environment.

Earlier proposals had laid a foundation for this action. A number of related bills had been introduced in earlier Congress but had died in committee.⁵ As early as 1965, Russell Train, then head of the Conservation Foundation, proposed "that the President establish a Council of Ecological Advisers" to give environmental concerns "an important new status in planning and policymaking at the highest level of government."⁶ In 1969 these ideas became reality.

The two bills that became NEPA were largely modeled after the Employment Act of 1946.⁷ That Act, which grew out of the concern about economic dislocations after World War II, declared a responsibility in the Federal Government to maintain a prosperous and stable national economy.⁸ The Act also created the three-man Council of Economic Advisers to advise the President in carrying out that responsibility and in preparing an annual report on the economy.⁹ The Employment Act was a watershed in the Federal Government's relationship to national economic problems. By following both aspects of that Act — declaring a Federal responsibility for action and providing for a council and an annual report — the sponsors of the 1969 bills hoped to create a similar watershed in the Government's relationship to environmental problems.

Instead of being an inadvertent contributor to environmental degradation, the Federal Government was to be made a central participant in environmental renewal. The bills directed the President to submit an annual report to Congress on the state of the environment. Similar to the President's annual Economic Report, it would serve over the years as an indicator of environmental conditions, a record of governmental and private actions to enhance environmental quality, and a forum for raising important environmental issues.

During consideration of the bills which led to NEPA, some supporters of the proposed law feared that the declaration of a national environmental policy mightbe an empty utterance unless the statute embodied some means of guaranteeing that Federal agencies would heed the new policy. Witnesses repeatedly referred to the disastrous oil blowout in early 1969 from offshore wells operating under Interior Department leases in the Santa Barbara Channel. Prior to the blowout, they said, the Federal Government had assured that environmental factors had been considered and that precautions had been taken to prevent oil spillage.Events showed that the Government's assurances had been more thorough than its precautions.¹⁰ Witnesses supporting the proposed legislation produced many other examples of what the Senate report later termed "the manner in which Federal policies and activities have contributed to environmental decay and degradation."¹¹ They called for an "action-forcing" mechanism that would guarantee that in the future the Government would follow through in its pledge to protect the environment.¹²

Congress' response to this need was the provision that became section 102 of NEPA, a provision without a close statutory precedent. The section directs all Federal agencies to interpret and administer their authorities in concert with the new environmental policy. Subsection 102(2)(C) requires agencies to prepare, for all "major Federal actions significantly affecting the quality of the human environment," a detailed statement of what the environmental impacts will be. In preparing the statement, agencies must consider alternative actions and consult with other agencies having environmental expertise.

The written record of NEPA's passage through the Congress is relatively sparse in view of its later impact. In the Senate on July 10, 1969, after a single day of hearings, it was placed on the consent calendar and passed by a voice vote.¹³ In the House, it reached the floor on September 23 and was passed that day by a vote of 372 to 15.¹⁴ On October 8, the Senate conferees from the Interior Committee and members of the Senate Public Works Committee reached agreement on the Senate's position in conference with the House. They also spelled out the relation of NEPA to a companion bill from the Public Works Committee that later became the Water Quality Improvement Act of 1970.¹⁵ A joint Senate-House conference committee reported an agreed version on December 17. After a brief discussion on the Senate floor of the effect of the proposed Act on other Federal laws relating to the environment, the Senate and House agreed to the conference report on December 20 and 23 respectively.¹⁶

Precursors of section 102

Although the "action-forcing" provision of section 102, requiring environmental impact consideration, had no direct legislative model, it had foundations in a number of earlier legislative and judicial developments relating to environmental protection. The importance of section 102 is that it brings these separate strands together and confirms them in a statute applicable across the entire Federal Government.

Individual agencies previously had mandates to consider particular [2 ELR 50026] environmental concerns in planning their activities. One of the earliest such mandates is section 10(a) of the Federal Power Act.¹⁷ As amended in 1935, that law requires the Federal Power Commission (FPC), in licensing any dam or related project, to consider the interests of commerce, water power and "other beneficial public uses, including recreational purposes." Two landmark court decisions interpreted this requirement as imposing an affirmative duty on the FPC to investigate and consider less environmentally damaging alternatives to any proposal. In Scenic Hudson Preservation Conference v. FPC,¹⁸ decided in 1965, the U.S. Court of Appeals for the Second Circuit ruled that section 10(a) requires the FPC to consider "[t]he totality of a project's immediate and long-range effects." It said the FPC cannot fulfill this responsibility by sitting "as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission."¹⁹ Two years later, in Udall v. FPC,²⁰ the U.S. Supreme Court gave its sanction to this reading of the Act.

In 1966 the Congress enacted section 4(f) of the Department of Transportation Act,²¹ which requires the Department of Transportation (DOT) to consider alternatives to proposed transportation projects that affect the environment. Section 4(f) provides that before the Department may approve a transportation project that encroaches on a public park, wildlife refuge, or historic site, the Secretary of Transportation must find that there is no feasible and prudent alternative and that the project has been planned to minimize the encroachment. Together with section 10(a) of the Federal Power Act, this requirement presaged the broad duty imposed by NEPA to explore less environmentally damaging alternative actions.

NEPA's provision that agencies preparing impact statements must consult with agencies having environmental expertise also had precursors. The Fish and Wildlife Coordination Act,²² as amended in 1958, was intended to bring concern for wildlife into the planning of Federal water resource projects. To help guarantee that wildlife values are fully considered, it requires Federal agencies to consult with the Federal Fish and Wildlife Service and State wildlife authorities in planning water resource projects. The National Historic Preservation Act of 1966²³ creates a similar consultation mechanism to protect historic buildings and sites from encroachment byfederally funded projects. Each of these consultation requirements is designed to assure that the governmental bodies charged with protecting environmental values pay close attention to the environmental effects of particular projects. Agencies can combine their consultations under these statutes and under NEPA's broader requirement and thus avoid any duplication of effort.²⁴

The "action-forcing" provisions in section 102 of NEPA build upon the foundations of the four earlier laws and apply to all types of Government activities. Teamed with NEPA's establishment of a national environmental policy and its creation of the Council on Environmental Quality, section 102 provides a mechanism for significant reform in Government decisionmaking.

nepa's substantive impact

a new policy is set

Although much of the public discussion of NEPA has revolved around the environmental impact statement procedure of section 102(2)(C), NEPA's substantive thrust cannot be overlooked. The primary purpose of Congress in enacting NEPA was to establish a Federal policy in favor of protecting and restoring the environment. The broad terms in which that policy is declared clearly make all aspects of man's surroundings the subject of Federal concern.²⁵

NEPA contains strong directives to Federal agencies to follow this new policy. Section 102(1) "authorized and directs that, to the fullest extent possible, … the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with" the policy of the Act. The legislative history of NEPA indicates that the phrase "to the fullest extent possible" at the outset of section 102 is intended to excuse compliance only when another statute expressly precludes or makes action required by NEPA impossible.²⁶ Section 102(1) is supplemented by section 102(2)(B), which directs agencies to give "appropriate consideration" to environmental values in all decisions; by section 103, which directs Federal agencies to review existing policies and practices to bring them into line with the Act; and by section 105, which declares that the policies and goals of NEPA "are supplementary to those set forth in existing authorizations of Federal agencies."²⁷

Together, these provisions tell the agencies to add a new criterion — effect on the environment — to those against which they have traditionally tested their actions. The far-reaching result is that agencies whose statutory mandates previously did not call for attention to the environmental effects of their actions are now required to take those effects into account. And agencies whose mandates previously directed their attention only to certain facts of the environment now have a responsibility as broad as the environmental policy declared in NEPA.

The implications of this reform are seen most clearly in Federal programs in which the Government acts directly to perform a service, to build a facility, or to finance such activities by others. In these programs the agency in charge generally has a broad range of choices about the size, nature, and location of the project, who receives the funds, and the wisdom of undertaking any action at all. For example, the Army Corps of Engineers determines, on the basis of its own studies, whether to seek Congressional authorization for a flood control project in a certain location and what the design of the project should be. Similarly, when the Department of Housing and Urban Development (HUD) allocates grants and other assistance under Federal housing programs, it can select projects to maximize the benefits produced. It does this both in setting general criteria for the programs and in evaluating specific projects. In planning such actions, Federal agencies are now required by NEPA to consider environmental factors at the earliest possible stage and to mold their actions to improve the environmental effects. This duty includes refraining from action when the balance of the relevant public values, including the environment, indicates that the action is not in the public interest.²⁸

NEPA's implications are similar where the Government does not undertake or finance activities directly but regulates the private concerns that do. A Federal agency charged with regulating private rights or interests must consider the environmental effects of its regulatory activities and make appropriate changes. For example, in granting permits to dredge or fill in navigable waters of the United States, the Corps of Engineers must consider the ecological effects of the applicant's proposed activity.²⁹ Before the Coast Guard decides whether to grant a permit for construction of a bridge across navigable waters, it must consider the reasonably foreseeable effects on scenic values, on the surrounding transportation system, and on public access to the adjacent coastline.³⁰ And the Interstate Commerce Commission, in regulating the rates charged by interstate carriers for freight transport, must consider the impact of different rate structures on the economic feasibility of recycling depletable resources.³¹

[2 ELR 50027]

Where an agency previously looked at only a limited aspect of the private activities under its regulation, NEPA forces it to broaden its concerns substantially. The Atomic Energy Commission (AEC), which previously considered only the radiological health and safety effects of nuclear powerplants, now must consider all other significant environmental effects as well, such as the impact on adjacent waters of thermal discharges from the plants.³² For the other regulatory agencies, too, the NEPA provisions supplement preexisting statutory objectives with a new one — environmental protection. An agency must consider and, as appropriate, act to minimize the adverse environmental effects that can reasonably be expected from the activity subject to its regulatory action.

The actual impact of NEPA's policy on Government decisions can already be seen. Some projects have been modified or abandoned when their environmental effects would have been unacceptable.For example, on the advice of the Council on Environmental Quality, the President ordered a halt in construction of a partially completed barge canal across northern Florida that threatened important natural values. The President stated: "[W]e must assure that in the future we take not only full but also timely account of the environmental impact of such projects — so that instead of merely halting the damage, we prevent it."³³ The Government has since recommended that the area be studied, for possible protection as part of the wild and scenic rivers system.³⁴

Other examples of NEPA's impact cover a wide range of Government actions.

The Coast Guard carefully reviewed an application from the State of California for a permit to build a highway bridge across San Francisco Bay. Because of potential long-range effects on the environment, including a threat to the viability of San Francisco's new rapid transit system, the Coast Guard denied the permit. In a subsequent public referendum, the voters of the area disapproved the bridge project.³⁵ When a detailed and comprehensive environmental statement showed that the originally preferred route of Interstate 75 in Georgia would have adverse effects on Allatoona Lake and surrounding natural areas, a new alignment which minimized impacts was selected.³⁶

The Army Corps of Engineers postponed indefinitely a project to channelize portions of the Buffalo Bayou in Houston, Texas, largely because of its negative aesthetic effects.

The draft environmental impact statement for a proposed airport site in Fairfax County, Va., prompted adverse comments from many sources. The County Board of Supervisors subsequently decided to make the site a park instead.³⁷ Environmental concerns triggered rethinking of a plan to use a tract of Federal land adjacent to a recreational area in Fort Snelling, Minn., as the site for a bulk mail handling facility for the Postal Service. The Government decided instead to transfer the land to the State of Minnesota for park use.³⁸

When the California coastal communities of Bolinas and Stinson Beach applied to EPA for a grant for a joint sewerage system, EPA reviewed the environmental implications of the proposal. EPA's study indicated that the proposal would allow immediate urbanization of a rural area over the protests of a majority of the residents, would bring serious financial hardship to the property owners of the area, and might harm the ecology of the most significant shale reef on the West Coast. Discussion of these preliminary findings with the applicants and the State led to the abandonment of the project and the formulation of an alternative more compatible with the local environment.

Original designs for the proposed new community of Park Forest South, outside Chicago, called for the destruction of a unique hardwood forest. After the draft impact statement brought this to light, the Government and the developer reached an agreement to change the plans, and the Illinois State legislature is considering a bill to buy and preserve the woods.³⁹

The Secretary of the Interior in 1971 refused, on environmental grounds, to authorize two proposed platforms on existing oil leases in the Santa Barbara Channel.⁴⁰ In a later proposed sale of oil and gas leases off the eastern coast of Louisiana, the Secretary, after preparing an environmental statement, eliminated a number of proposed lease sites believed potentially dangerous to nearby Wildlife Refuges and associated marshlands and estuaries.⁴¹

Changes in individual projects are only a partial index of NEPA's impact. Perhaps a more important sign is that agencies are reviewing their policies to determine the need for across-the-board changes affecting entire Federal programs. For example, the Forest Service has modified its multiple-use planning framework for the National Forests. Instead of a collection of functional plans and a multiple-use plan, the Forest Service will prepare an overall management plan for each planning unit, guided by NEPA principles.⁴² The Corps of Engineers, under its dredge-and-fill permit rules, reviews very closely any new proposals to develop wetlands.⁴³ The AEC's new procedures under NEPA are likely to have a significant impact on nuclear power plant technology by requiring more careful accounting of long-term environmental costs than was previously the practice.⁴⁴ The President's Executive Orders establishing the Refuse Act permit program, providing for regulation of off-road vehicles on public lands, and barring the use of poisons in Federal predator control programs all have drawn on NEPA as part of their statutory authority.⁴⁵

programs involving many actions

A practical problem may arise when an agency that makes many individual decisions in a program affecting the environment must implement NEPA's policy. Many agencies find themselves in this situation. For example, the Forest Service grants numerous permits for access to private mineral claims on National Forest land. The Corps of Engineers issues a large number of permits for dredging and filling in navigable waters. For the agency to consider all relevant factors and balance them anew in taking each action may be undesirable for several reasons: It may waste the agency's resources; it may fail to ensure consideration of cumulative long-term effects; and it may mislead applicants about what they may expect from the agency.

It has long been recognized that agencies can administer their programs better if they establish their policies and practices, whenever possible, by general rule rather than by acting on a case-by-case basis.⁴⁶ Rulemaking allows the agency to weigh competing considerations in depth and to determine a future course of action that will best accomplish its ends. Sometimes it will not be possible to prescribe general rules, because the individual cases differ too widely or the problems do not lend themselves to generalization. But where it is possible, it is a valuable governmental technique.

General rules can be just as valuable in bringing agency practices into line with NEPA as they have been in implementing other Federal policies. NEPA requires a rather finely tuned and systematic balancing of its policy against other agency objectives.⁴⁷ It requires agencies to reexamine the basic premises on which they have operated and to take a new direction when those premises do not square with the required concern for environmental effects.

[2 ELR 50028]

Nothing in NEPA says that such balancing or reexamination must be performed anew each time the agency proposes to act, without regard to previous agency consideration of the relevant interests. No person or institution can operate effectively under a requirement to question its basic premises before taking each action. But consideration of the environment must be dynamic. New situations must be evaluated, and new knowledge must be brought to bear. An agency can be both effective and responsible if it adopts rules to guide its daily choices and reexamines those rules as necessary to respond to changes in circumstances or in public policy. Environmental issues not adequately covered in the rulemaking process can be considered on a case-by-case basis. As pointed out below, an agency can follow a similar approach in preparing impact statements under section 102(2)(C).

Agencies need, therefore, to identify areas in which NEPA's policy can best be applied by general rules, as distinguished from areas in which some or all issues must be evaluated with each individual action in mind. If, for example, an agency can identify beforehand the circumstances under which a type of development carries unacceptable environmental risks, it can formulate a corresponding rule to guide applicants for Federal assistance or authorization. The Interior Department has taken this approach in issuing rules to govern the development of geothermal steam under the Geothermal Steam Act of 1970,⁴⁸ and the Forest Service is considering similar rules to govern means of access of mining claims on National Forest lands. Similarly, if it can be determined what level of pollutant emissions will be acceptable from a class of activities, a general rule can be framed to guide the exercise of a Federal authority. This principle underlies the Federal regulatory programs for air and water pollution. It may be equally valuable, where appropriate, in other Federal programs which involve many individual actions.

The question arose in Calvert Cliffs' Coordinating Committee v. AEC⁴⁹ whether an agency may, in selecting a rule of general applicability to implement NEPA, defer to a relevant rule prescribed by another agency with environmental expertise. The AEC, in its procedures for implementing NEPA, had provided that a State certification of compliance with water quality standards under the Federal Water Pollution Control Act was sufficient to remove the issue of water quality effects from further consideration in an AEC proceeding for licensing a nuclear powerplant. The U.S. Court of Appeals for the District of Columbia held that such automatic deference to another agency's views was inconsistent with AEC's duty under NEPA to consider all environmental factors in its licensing actions. The AEC had based its procedures on two special factors: section 21(b) of the Federal Water Pollution Control Act (added by the Water Quality Improvement Act of 1970),⁵⁰ which required the State certification, and Congressional statements about the interplay of section 21(b) with NEPA.⁵¹ The appeals court ruled that NEPA required the AEC to assess water quality effects independently, regardless of a certification of compliance with standards under section 21(b). The court reasoned that by making an "individualized balancing analysis" in each case, the AEC could "ensure that, with possible alterations, the optimally beneficial action is finally taken."⁵²

It is not entirely clear whether the AEC or the court of appeals correctly judged the Congressional intent concerning the relationship of section 21(b) to NEPA. Legislative clarification of the issue is found in bills since passed by both the House and Senate to amend the Federal Water Pollution Control Act. Those bills carry a provision, supported by the Administration, allowing the AEC and other permit-granting agencies in their NEPA evaluations to rely on State certifications that water quality effects will be acceptable. However, permit-issuing agencies still would be required under NEPA to balance water quality effects along with other factors in making the final permit decision.⁵³

The question of whether one agency can defer to another agency's finding of compliance with water quality standards may have limited importance in view of this prompt Congressional move to clarify the law. However, it is important to note that, despite the stress in Calvert Cliffs' on an "individualized balancing analysis," the opinion does not say that an agency cannot turn to its own general rules to guide all or part of individual decisions. As already pointed out, NEPA requires an agency to balance all competing factors and to consider all reasonable alternatives. But it does not dictate that this be done entirely anew in each decision, without the assistance of general rules and past experience. Decisionmakers are permitted to cut their more complicated decisions down to manageable size. Advance determination of program policy through rulemaking can implement NEPA, at the same time avoiding repetitious reexamination of basic principles in the context of each individual action.

mandate for innovation

NEPA not only requires Federal agencies to appraise and improve the environmental effects of their activities; it also mandates agencies to develop new governmental initiatives to tackle the Nation's growing environmental problems. Section 101 declares that it is "the continuing policy of the Federal Government … to use all practical means and measures … to create and maintain conditions under which man and nature can exist in productive harmony."⁵⁴

While this responsibility for governmental innovation rests on all agencies of the Federal Government, NEPA contemplates that a central role will be played by the Council on Environmental Quality. Section 204(4) tells the Council "to develop and recommend to the President national policies to foster and promote the improvement of environmental quality …."⁵⁵ The President has reaffirmed this responsibility in Executive Order 11514.⁵⁶ The Council, working closely with other Federal agencies, has had the responsibility for preparing new environmental initiatives that have been included in the President's Environmental Messsages in 1971 and 1972.⁵⁷ Chapter 4 discusses in detail the activity of the Council and other agencies in this area.

This affirmative responsibility of the Government to anticipate environmental problems and to devise ways of solving them gives hope for reversing the deterioration of our surroundings. If the Federal Government responds vigorously to NEPA's dual command to control the environmental effects of its actions and to devise new means of environmental protection, it will have been faithful to its new responsibility for the conditions under which we live.

the evolving impact statement process

The environmental impact statement process of section 102(2)(C) was included in NEPA to insure an across-the-board Government response to the Act's policy directives. That process, requiring a public explanation of the environmental consequences of proposed Government actions, compels substantial adjustments in the ways in which many agencies previously did business. Like any major governmental reform, the process has raised a number of thorny problems in its early implementation. The Council, acting under Executive Order 11514, has issued guidelines instructing the agencies on how to handle many aspects of the 102 process.⁵⁸ The Council also gives agencies additional guidance on a more informal basis.⁵⁹ Because the guidelines are an interpretation of NEPA by the agency charged [2 ELR 50029] with its implementation, a number of courts have acknowledged that they are entitled to great weight under accepted legal principles.⁶⁰

Among the major problems that still persist, three types of issues recur: what procedures agencies must follow in preparing and circulating 102 statements, what the statements must contain, and what role the Council on Environmental Quality plays in the 102 process.

procedural problems

actions requiring impact statements — Section 102(2)(C) requires an environmental impact statement for "major Federal actions significantly affecting the quality of the human environment."⁶¹ The legislative history contains little discussion of the meaning of this phrase. And the courts are only beginning to furnish some guidance in interpreting the phrase, when they are asked to review its application to a particular agency action.⁶² Probably the best guide to Congress' intent is the strong concern, voiced throughout the hearings leading to NEPA's enactment, for preventing unanticipated environmental effects from Government actions. The Act calls for statements only on major actions with significant environmental effects. With that language it attempts to ensure that the great bulk of the environmental impact wrought by Federal agencies will be analyzed through the 102 process, while avoiding the wasteful preparation of statements on minor actions or actions with insignificant environmental consequences.

Both terms, "major" and "significant," are relative, calling for a reasonable exercise of judgment in light of the NEPA policy. Because the section 102(2)(C) requirement is addressed to the agency proposing to take an action, it is that agency which must initially decide the applicability of the terms in light of its knowledge of the nature and effects of its programs. The Council on Environmental Quality has attempted to guide this exercise of judgment through section 5 of its guidelines.⁶³ Moreover, the Council is always available to consult with agencies regarding particular programs or actions. However, the great diversity of Federal activities subject to the 102 process makes it impossible for the guidelines to do more than elaborate in general terms upon the statutory language.

The guidelines make clear, for example, that the overall, cumulative impact of one or more actions is to be considered and that an effect may be significant even though it is limited to one locality. The guidelines also call upon each agency to issue its own procedures to implement the 102 process. Those procedures are intended both to identify agency programs that are likely to involve actions requiring statements and to specify the factors that will guide decisions in individual cases. Virtually all the major agencies have now published such procedures.⁶⁴

The duty to assess the environmental consequences of a proposed action, which flows from sections 101, 102(1), 102(2)(B), 103, and 105, is not limited to major and environmentally significant actions — as is section 102(2)(C). Further, determining whether an action falls within section 102(2)(C) calls for an early inquiry into what the effects may be. Therefore, in practice, an agency contemplating any action that may possibly affect the environment must perform an environmental assessment and decide whether a statement is necessary⁶⁵ A few agencies, including the Environmental Protection Agency (EPA), have experimented with a practice of issuing a notice of intent when this preliminary look indicates that a 102 statement is required. The notice alerts the public that the statement will be coming, offering an opportunity for early input. Moreover, it provides a public record of the time when preparation of the statement was started. Similarly, an agency may make a negative declaration when it decides that a statement is not required. The agency should, in appropriate cases, prepare a record indicating, for future reference, why a 102 statement was considered unnecessary.⁶⁶

In the first years of the 102 process, many of the controversies over whether 102 statements were required have involved Federal activities begun or authorized before NEPA's enactment. The Act contains no transitional language to condition its command that any major action with significant environmental effects taken after its enactment must have an environmental impact statement. Because many such actions are part of a continuing program or project started before NEPA took effect, agencies have often faced the question whether to prepare a 102 statement that would involve reappraisal of past actions or financial commitments.

To deal with these situations, section 11 of the Council's guidelines provides that a 102 statement is necessary to assess further incremental major actions. However, the scope of alternatives realistically available to the agency in such cases may be narrower in light of how nearly complete the project was at the time NEPA took effect. If prior commitments, legal or financial, make it impractical to change the basic course of action, there should still be a 102 statement discussing the project's environmental effects and the possibilities for minimizing adverse environmental consequences from the remaining major actions.

In early lawsuits testing the applicability of section 102(2)(C) to previously commenced projects, some of the courts failed to distinguish the major Federal actions yet to be taken — if any — from the earlier commitments made. This failure led to an erroneous characterization of the problem as one of retroactive application of NEPA to actions already taken. That failure also led to a corresponding failure to analyze whether the remaining Federal steps offered an opportunity to improve the project's environmental impact.⁶⁷ However, in more recent decisions the courts have turned increasingly to the approach in section 11 of the guidelines.⁶⁸

The problem of applying section 102(2)(C) to pre-1970 projects has already faded in importance as the courts have gravitated toward a uniform approach. It should recede even further as the remainder of the projects that were in the pipeline when NEPA was enacted are processed and the agencies are able to turn their attention to new projects for which environmental assessments can be performed from the outset.

The retroactivity problem remains intense in the licensing of nuclear electric powerplants. A number of plants were completed or under construction when NEPA was passed and will be ready this year and next to begin producing electricity in areas of possible power shortage. A federal court decision enjoining the startup of the Quad Cities plant on the Mississippi River raised legal uncertainty whether those plants will be available when needed.⁶⁹ The case has since been settled. But the House of Representatives has passed, and the Senate is considering, a short-term amendment of NEPA to permit the AEC [2 ELR 50030] to use emergency procedures to meet urgent needs in the licensing of plants that predate NEPA. The amendment would permit use of these plants on the basis of an abbreviated review through the summer of 1973, pending completion of full 102 statements.⁷⁰

program impact statements — As noted above, many Federal agency programs involve a multiplicity of individual actions, such as grants or permits, administered under relatively uniform policies. It was pointed out that NEPA's substantive duties can often best be implemented in such cases by writing environmental policies into the general rules governing a program. Similarly, the procedural duties of section 102(2)(C) can often be implemented more effectively by preparing a single statement on the program as a whole rather than by filing separate environmental impact statements on the individual actions. An intermediate possibility is to prepare an overall statement assessing basic policy issues common to all actions under a program, then to follow it when necessary with a separate statement for each major action, limited to issues needing individualized treatment. This range of possibilities is present also when a large project is divided into small segments for administrative purposes — as in the case of a major highway project.⁷¹

In many such instances the purposes of section 102(2)(C) will best be served by an umbrella program environmental impact statement. The statement may be prepared at the time the general rules for the conduct of the program are issued, or it may simply emerge from the thorough reexamination that NEPA requires for ongoing programs. The program 102 statement affords an occasion for 2 more comprehensive consideration of effects and alternatives than is practicable in a statement on an individual action. It tends to ensure that cumulative impacts likely to be slighted in a case-by-case analysis are considered. And it avoids duplicative discussion of basic policy questions. A program statement can be supplemented or updated as necessary to account for changes in circumstances or public policy and to measure cumulative impacts over time.

However, a program statement would not satisfy section 102(2)(C) if it were superficial or limited to generalities. The very rationale for a program statement requires that environmental considerations be analyzed fully. When all significant issues cannot be treated adequately in connection with the program as a whole, statements of more limited scope will be necessary on some or all individual actions to complete the analysis.

This discussion illustrates the sophisticated judgments that an agency must make in applying NEPA's general procedural requisites to its programs. The complexity of the agency's task is increased by the impossibility of doing everything at once. An agency must time its preparation of program and individual statements to accomplish NEPA's ends in the light of its other program objectives. When a new program is just beginning, the obvious course is for the agency to prepare an environmental impact statement before the program is launched. The Department of the Interior has followed this course in beginning exploratory development of oil shale and in launching the exploitation of geothermal steam.⁷²

multi-agency actions — Many Federal activities are the shared responsibility of more than one agency. For example, a highway project may be funded by the Department of Transportation but also require a permit from the Corps of Engineers to fill or build in a navigable waterway. A combined water resource and recreation project may require the cooperative efforts of the Corps of Engineers, a river basin commission, and the National Park Service. Or a major new policy may be initiated by the Government and its implementation will require coordinated actions by several agencies. In these instances each agency involved may prepare its own impact statement. But there are two other approaches that will usually be more effective in complying with section 102(2)(C): One is to designate a "lead agency" responsible for preparing a statement prior to implementing the program or policy. Another is for the agencies to prepare a joint overview statement.

Assigning responsibility to a lead agency may be most appropriate when the action is essentially a single project in which two or more agencies are involved by virtue of their separate legal authorities. Each agency's decision may relate to only a part of the project, but in an environmental impact statement it would have to consider the cumulative impacts of the project as a whole. Therefore, it will be most efficient for the agencies involved to agree which is the lead agency and assign it the responsibility to prepare a statement.

The Council's guidelines provide that the lead agency is the Federal agency which has primary authority for committing the Federal Government to a course of action with significant environmental impact.⁷³ At least three factors come into play in picking the lead agency: which agency became involved in the project first, which has the heaviest involvement, and which is most expert with respect to the project's environmental effects. The Council is ready to assist agencies that have difficulty selecting a lead agency. Moreover, in preparing the statement the lead agency may call on the other agencies involved for help, or on other agencies with relevant expertise. Agencies may find cooperative arrangements very useful. The guidelines indicate that the lead agency's 102 statement normally should be released in final form before any of the participating agencies has taken major or irreversible action on the project. The courts have recognized that the lead agency device can be a proper way to satisfy NEPA's procedural demands in a multi-agency context.⁷⁴

An overview statement, prepared jointly by a number of agencies, may be especially appropriate for new policy initiatives formulated at an interagency level. In the shaping of policy on a major issue with environmental implications, it is necessary to explore a broad range of alternative actions that fall outside the authority or expertise of any single agency. Even the narrower course of action ultimately chosen often requires implementation by several agencies. Preparation of an overview statement by an interagency group can make use of each agency's special knowledge while avoiding the duplication inherent in separate statements.In addition, it can assure that a full environmental analysis is performed before the Government sets out on a course of action. When later specific implementing actions require additional 102 statements, those statements can rely on the overview statement for discussion of the general policy issues.

A judicial discussion of the role of an overview statement came in a lawsuit under NEPA challenging a proposal by the Department of the Interior to sell leases for oil and gas exploration on the Outer Continental Shelf. The proposal was one of the initiatives arising out of the President's 1971 Energy Message. Although the studies leading up to the Message included environmental factors, the preparation of environmental impact statements was left until the time of the implementing actions of the Department of the Interior, the AEC, and other agencies. The Department of the Interior's proposed offshore lease sale proved to be the first action to implement the President's Message. The responsibility fell to Interior to act as the lead agency in discussing the broad range of alternative energy sources to be assessed in connection with the entire package of initiatives.

In a court test of this procedure, the U.S. Court of Appeals for the District of Columbia held that, although a joint overview statement might have been prepared in connection with the Energy Message, it was legally permissible "to defer the impact statement from the time of programmatic directive to the time of the implementing specific actions."⁷⁵ However, because the energy policy involved numerous and diverse initiatives, Interior's 102 statement covering its lease sale did not rule out a need for additional statements coveringthe other major actions. For example, the Atomic Energy Commission has prepared an impact statement covering its project for demonstrating a liquid-metal fast-breeder nuclear reactor.⁷⁶

Some duplication will necessarily occur in these multiple statements. Moreover, each agency involved must discuss alternatives and environmental effects outside its areas of primary expertise. For these reasons, an early overview statement has advantages over the other [2 ELR 50031] approaches when a number of proposed actions are part of a coordinated plan to deal with a broad problem. It can be expected that overview statements will find more extensive use in the future.

A similar need for interagency coordination arises when an activity requiring a 102 statement is also subject to a like environmental evaluation process under State law. As noted in Chapter 5, at least 10 States⁷⁷ and Puerto Rico now have an impact statement process for State or local agency actions affecting the environment. A number of other States are considering such laws. More and more instances will occur in which a project involves both State and Federal agencies and requires environmental assessments under both State and Federal law.

In most of these case the agency whose involvement in the project comes first will be the first to evaluate its environmental effects. This will usually be a State agency which formulates or approves a proposal before sending it on for Federal action. For example, State and local agencies initiate proposals for construction of sewage treatment plants and recommend the proposals to EPA for Federal funding. If State law requires an environmental analysis, the appropriate State or local agency will usually complete the analysis before referring the proposal to EPA. EPA will then have the benefit of the State's study in preparing a 102 statement if the project requires one under NEPA. Experiments are already underway in some States with joint State-Federal preparation of impact statements.

State and Federal agencies should cooperate closely in these situations to minimize any duplication of effort. The basic studies, whether performed by the State or Federal agency or jointly, can be tailored to help satisfy both the State and Federal requirements. Moreover, it should generally be possible to combine the comment processes under both laws, to avoid consulting expert agencies twice. The result of the State impact statement requirement will be to ensure that environmental effects get attention early in the development of proposals by State agencies, even before the Federal involvement would otherwise begin.

the comment process — NEPA requires each agency, prior to completing a 102 statement, to "consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." The comments thus obtained, as well as those relevant State and local agencies, are to accompany the proposal "through the existing agency review processes" and are to be made public with the 102 statement.⁷⁸ The Council's guidelines make clear that these requirements also include the comments of private organizations and individuals.⁷⁹

To enable all of these entities to make informed comments, the guidelines require that draft statements be circulated to other agencies and released to the public for review at least 90 days before the proposed action. The agency must consider the comments its receives and change its proposal and the statement as appropriate. The agency must then make the final statement and comments public at least 30 days before taking action. Agencies may consult with the Council about modifying these time limits to meet emergency situations or when program effectiveness is threatened.⁸⁰ When a public hearing is held, the draft statement is made available at least 15 days beforehand — to permit informed discussion of environmental issues at the hearings.

These provisions for review and comment have impacted heavily on the Federal Government. They have opened to public participation many Government decisions that were previously made informally and without prior public notice. The Council believes that NEPA's public comment process can be assimilated into the agencies' existing planning and review procedures for new proposals and still delay decisionmaking little, if at all. The comment process can be an important step toward a more open and responsive Government when environmental issues are involved.

Agencies and private groups whose interests and expertise put them frequently in a commenting role on draft 102 statements have complained at times of the difficulty of preparing helpful comments in only 30 to 45 days. For example, the Department of the Interior is asked to comment on hundreds of proposed actions affecting land use and fish and wildlife values. EPA, with its expertise in pollution control, faces a similar situation. EPA's workload is increased by section 309 of the Clean Air Act. Enacted shortly after NEPA, section 309 supplements NEPA's general comment provisions with a requirement that PEA review and comment publicly on Federal actions that affect its areas of responsibility.⁸¹ Private environmental groups, too, often find their resources taxed by the opportunities for comment on Federal actions.

One answer to this problem, obviously, is for the commenting entities to add the staff and other resources to handle the commenting task. The opportunity to make Federal decisionmaking better informed and more carefully planned warrants the necessary manpower. However, even with adequate resources, it is often impossible to prepare comments in 30 days that will do justice to a draft statement that may have taken years to prepare. It is probably impracticable to solve the time problem by an across-the-board extension of the minimum period between circulation of the draft statement and agency action. A significant extension would impose a delay incompatible with the nature of some Government programs.

Agencies are free, of course, to take longer when the program permits and when NEPA's policy would be served by deeper scrutiny. For example, the Department of the Interior permitted extensive time for comment and held hearings in the District of Columbia and in Alaska before writing its final statement on the Trans-Alaska Pipeline System. But in most cases improvement of the comment process will require that agencies develop means of giving ample advance notice and encourage consultation before the draft statement is finished. By making other agencies and groups aware that a draft is being developed, an agency can give them time to prepare for the upcoming opportunity to comment. Such a warning may also bring in a faster feedback that permits earlier modification of the proposal and thereby avoids later confrontation. Some agencies already are developing the means of earlier notice and consultation. Further experimentation promises substantial benefits in making the comment process a more effective tool.

A question persists about how a draft statement should compare to a final statement in content and comprehensiveness. The draft serves as the primary means of informing others about the environmental effects of a proposed action and of possible alternative actions. Therefore, it should embody a thorough airing of each of the points specified in section 102(2)(C). By the time it circulates a draft, the initiating agency should have fully explored those points, with help from other sources when necessary, rather than leaving parts of the analysis to be furnished by commenting groups. In short, a draft statement should be capable of serving as the final or "detailed" statement if no comments come back.

However, the very rationale for consultation with others is that a commenting agency or group may uncover errors or omissions in the original environmental analysis. The final statement, when issued, thus will ideally be comprehensive and will give accurate guidance in the agency's decision whether to go ahead as planned, modify the project, or abandon it. However, if a final statement is challenged in court and found legally defective, it can be further revised, and the ultimate product will reflect the court's legal guidance.

One argument holds that when a commenting group or reviewing court has pinpointed a defect in a statement, it should be corrected in a new draft and the new draft circulated for additional comments. One Federal district court, in a case involving the Interior Department's proposed offshore Louisiana oil and gas leases, appears to have adopted this view.⁸² However, to impose a flat requirement of recirculation, even when the project itself is not changed, could cause unnecessary repetition and delays, often with little gain in fulfilling the purpose of section 102(2)(C). Indeed, it might create an incentive for an agency not to improve its statement after circulating the draft. A commenting group or reviewing court may contribute valuable factual or legal insights which can then be incorporated into the statement. If the defect is fully corrected in the revised statement, then the 102 process has accomplished its primary goal: a thorough environmental analysis incorporated in a document for the decisionmaker that is made public at least 30 days before any proposed action. Other agencies and groups have been apprised and have contributed to the analysis. Recirculation should be considered only when the second statement discusses significant new issues. Judgments on the need for recirculation are best made on a case-by-case basis. But at some point the process of circulation and comment must end.

[2 ELR 50032]

A different situation exists when, after a draft statement is circulated, an agency changes its plans and proposes an action not even discussed as an alternative in the draft. In that event the agency has in effect come up with a new proposal on which other agencies and the public have not had a chance to comment. Such a new proposal should be the subject of a draft statement of its own whenever the proposed action is major and the environmental effects significant.

environmental regulatory activities — Section 102(2)(C) requires "all agencies of the Federal Government" to prepare environmental impact statements on major actions significantly affecting the environment. However, the discussions leading to the enactment of NEPA showed that the primary concern of the Congress was the many Federal Government agencies that did not have a clear mandate to consider environmental effects and to protect the environment. The Congress recognized that Federal programs, such as the air and water pollution regulatory programs, already operated under statutes designed to protect the environment. The relationship of NEPA's more general environmental commands to those existing statutes was considered in the debate leading to NEPA's enactment.

In a statement on the Senate floor shortly before NEPA's final passage, Senator Jackson of Washington, its principal Senate sponsor, said:

Many existing agencies such as the National Park Service, the Federal Water Pollution Control Administration and the National Air Pollution Control Administration already have important responsibilities in the area of environmental control. The provision[s] of section 102 (as well as 103) are not designed to result in any change in the manner in which they carry out their environmental protection authority. This provision is, however, clearly designed to assure consideration of environmental matters by all agencies in their planning and decisionmaking — especially those agencies who now have little or no legislative authority to take environmental considerations into account.⁸³

Similar statements were made in both houses of Congress.⁸⁴ They show Congress' clear understanding of NEPA's substantive impact: As recited in section 105, NEPA's requirements were to supplement, but not supplant, "those set forth in existing authorizations of Federal agencies."⁸⁵

However, the question has since arisen whether the procedural duties of section 102(2)(C) apply to environmentally protective regulatory programs. Were agencies administering those programs, though guided by other environmental legislation, nevertheless to prepare 102 statements when their regulatory actions significantly affected the environment?

Relying on the statements in NEPA's legislative history that section 102 was "not designed to result in any change in the manner in which [agencies with environmental regulatory responsibilities] carry out their environmental protection authority," the Council in its guidelines interpreted NEPA as excluding the exercise of such authority from the 102 requirement. The President, shortly after NEPA's passage, consolidated most of the Federal pollution control regulatory programs into the new Environmental Protection Agency. Therefore, section 5(d) of the Council's guidelines limits exemption from the 102 process to "environmental protective regulatory activities taken or concurred in by" EPA.⁸⁶

NEPA itself contains no specific guidance on this point. As a result, there has been disagreement about the authority for, and scope of, this exemption. The disagreement led to decisions by two Federal district courts — in Kalur v. Resor and Sierra Club v. Sargent — that the water quality permit program, established under the Refuse Act of 1899 and administered by the Corps of Engineers with EPA concurring on each permit, was subject to environmental impact statements.⁸⁷ In three other cases, business groups are arguing that EPA must prepare 102 statements when it sets air pollution standards.⁸⁸

In order to clarify the uncertainty, EPA has started a study of the effects of applying the 102 process to its regulatory activities. That study will permit EPA to specify the extent to which it believes its activities should or should not be subject to impact statements.⁸⁹ EPA's study, and the forthcoming decisions on Government appeal of the Kalur and Sierra Club cases, should clarify NEPA's requirements in this area. Meanwhile, the Council and EPA have recommended to the Congress a temporary moratorium in applying section 102(2)(C) to the Refuse Act permit program.⁹⁰ This would allow rapid processing of the initial backlog of over 20,000 permit applications on existing facilities. Permits issued during the moratorium would be subject to arrangements developed for handling future applications.

formal regulatory procedures — Many Federal regulatory agencies must base their actions on the record of a hearing at which concerned parties are permitted to present facts and arguments.⁹¹ The procedures applicable to most such agencies are spelled out in the Administrative Procedure Act (APA)⁹² and are often further elaborated in the agencies' own statutes. Difficulties have arisen in accommodating these procedures to the requirement in section 102(2)(C) that the environmental impact statement "accompany the proposal through the existing agency review processes."

The procedures of the FPC illustrate the difficulty. If an application is made to the FPC for a certificate to construct a hydroelectric power facility, and the application is opposed by an intervenor, a hearing is held at which the opposing views are aired. Each party at the hearing is entitled to confront and cross-examine the opposing witnesses. The hearing examiner then makes an initial decision and, if that is challenged, the Commission itself makes a final ruling.

The rules adopted by the FPC to implement NEPA require the applicant to submit with his application a report containing enough information to be the basis for a 102 statement. Rather than writing a draft statement prior to the hearing, the agency staff, under the FPC rules, circulates the applicant's report as the basis for comments from other agencies and discussion at the hearing.The FPC takes the position that the APA makes it preferable for its staff not to take positions on the environmental issues prior to the hearing. After the hearing, the FPC staff prepares a brief which includes the elements of a draft 102 statement. The parties in the proceeding get the brief, but there is no agency draft statement circulated to other agencies and to the public for comment. The hearing examiner considers the briefs of the staff and the parties and issues his initial decision. His decision is explained in an opinion that includes a final 102 statement. If Commission review is sought, the Commission may revise the final 102 statement in its own opinion.

The FPC procedures have been attacked by environmentalists as inconsistent with NEPA on two grounds: first, that by failing to require a draft statement prior to the hearing, they ignore NEPA's requirement that a statement accompany the proposal through the existing agency review processes; and second, that the failure to circulate the staff draft statement to any agencies not involved in the proceeding violates NEPA's requirement to obtain comments of expert agencies.

In Greene County Planning Board v. FPC,⁹³ involving a challenge to the FPC's authorization of a transmission line to connect with a powerplant in Gilboa, N.Y., a U.S. court of appeals agreed with the first of these arguments. The court held that the FPC has "abdicated a significant part of its responsibility by substituting the [draft] statement of [the applicant] for its own" as the only document available prior to the hearing. Considering the FPC's hearing "an existing review process," the court said that NEPA would be satisfied only if "the agency's own" draft statement was prepared for the parties to see before the hearing. The court said that circulation of the applicant's draft to other agencies satisfied NEPA's consultation requirement. But it indicated that it would be preferable for the FPC to circulate its own draft, as the AEC does in similar formal [2 ELR 50033] licensing proceedings.⁹⁴

In response to the claim that the APA requires the agency staff to refrain from taking a position prior to the hearing, the court held that the APA prevents only premature decisions by the Commission members but does not prevent release of a draft statement prepared by the agency staff without participation by the Commission members.⁹⁵ The court also held that parties opposing the application must be given the opportunity at the hearing to cross-examine the applicant and the FPC staff about the draft statement. The FPC is seeking review of the Greene County decision in the Supreme Court.

content of impact statements

Section 102(2)(C) specifies that environmental impact statements must cover five points:

(i) the environmental impact of the proposed action,

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

(iii) alternatives to the proposed action,

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

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.⁹⁶

Section 6 of the Council's guidelines elaborates on these requirements. Early court decisions confirmed beyond doubt that together they are intended to bring "full disclosure" of the environmental implications of an impending decision.⁹⁷ An impact statement must discuss "all known possible environmental consequences of proposed agency action."⁹⁸ Only then can it serve its purpose — to help the agency to decide and to fully inform the public, the President, and the Congress on the issues.

Implementing the 102 process has raised a number of questions about the required content of impact statements. Out of this questioning have come three decisions by the U.S. Court of Appeals for the District of Columbia, which given added guidance in this important area.

duty to consider opposing views — The statement prepared by the AEC for the "Cannikin" underground nuclear test on the island of Amchitka in autumn 1971 was challenged in court. The plaintiffs argued that the AEC statement failed to discuss the views of experts who disagreed with the AEC's scientists about the possible dangers from the test. The courts never finally ruled on the adequacy of the AEC statement, because the case was mooted by the actual performance of the test. But the litigation produced a major opinion defining the duty to discuss opposing views under NEPA. In Committee for Nuclear Responsibility v. Seaborg,⁹⁹ the U.S. Court of Appeals for the District of Columbia held that a 102 statement must inform "the officials making the ultimate decision … of the full range of responsible opinion on the environmental effects" of the proposal. A statement must therefore "set forth the opposing views" on significant environmental issues raised by the proposal. The court stressed that it would be "arbitrary and impermissible" to omit from a statement "any reference whatever to the existence of responsible scientific opinion" on such issues. It noted, however, that "only responsible opposing views need to be included" and that "the agency need not set forth at full length views with which it disagrees." What is required is "a meaningful reference that identifies the problem at hand for the responsible official."¹⁰⁰

Taken together, the requirement that a draft statement be circulated for comment and the requirement to discuss opposing views make the 102 statement a very effective way to meld the best knowledge on environmental issues. The initiating agency should, of course, consider all major schools of thought in its draft statement. If there are responsible opinions of which the agency is unaware, they can be brought out in comments on the draft.This enables the agency to reevaluate the project in light of the comments and to discuss them in the final statement.

duty to discuss alternatives — As noted above, the Interior Department was challenged under NEPA when it proposed a sale of oil and gas leases on the Outer Continental Shelf as one implementing step under the President's Energy Message.In Natural Resources Defense Council v. Morton,¹⁰¹ the Court of Appeals for the District of Columbia held that Interior's 102 statement contained in inadequate discussion of alternative courses of action. The court's opinion reaffirmed the importance of the duty to discuss alternatives and examined the scope of the duty.

The court noted that the terse language in section 102(2)(C) on alternatives had been explained in the Senate as requiring a discussion of "the alternative ways of accomplishing the objectives of the proposed action and the results of not accomplishing the proposed action."¹⁰² It also noted that this requirement in turn is buttressed by the requirement of section 102(2)(D) that an agency

study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.¹⁰³

The court, quoting the Council's guidelines, said that these provisions require not only a "rigorous exploration" and description of alternative courses of action but also "an analysis … of their costs and impact on the environment."¹⁰⁴

The Government argued that the only alternatives to which this requirement applies are those that can be adopted and put into effect by the official or agency issuing the statement. Many of the possible alternative ways of producing the energy that Interior proposed to tap from the Outer Continental Shelf were within the province of agencies other than Interior. So defending lawyers argued that Interior was not required to discuss them. The court rejected this as inconsistent with the Congress' purpose in section 102(2)(C) to institute "a comprehensive approach to environmental management." The court declared that "it is the essence and thrust of NEPA that the pertinent statement serve to gather in one place a discussion of the relative environmental impact of alternatives" — including all the alternatives reasonably available to the Government as a whole.Even if some of those alternatives are outside the authority of the agency preparing the statement, their discussion will inform the public on the issues and guide the future choices of the ultimate decisionmakers in the Federal Government — the President and the Congress. The court noted that the importance of this broad discussion of alternatives was highlighted in the case before it — in which the proposed action was part of a broad governmental plan to deal with the energy problem, yet the major policy tradeoffs had not been discussed in an overview statement on the entire plan.

However, the court stressed that it was not asking the impossible in a discussion of alternatives. It observed that "[a] rule of reason is implicit in this aspect of the law, as it is in the requirement that the agency provide a statement concerning the opposing views that are responsible."¹⁰⁵ What NEPA requires is "information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned."¹⁰⁶ If an alternative has little or no effect on the environment, the environmental impact statement may simply state that that is the case. A course of action promising results only in the distant future need not be discussed as an alternative to a proposal designed to deal with a short-term problem. Detailed discussion is not required of alternatives that "are deemed only remote and speculative possibilities, in viewof basic changes required in statutes and policies of other agencies." And the agencies need not indulge in "'crystal ball' inquiry" in assessing the effects of alternatives. The agency will have taken the "hard look" demanded by NEPA if it has discussed the reasonably foreseeable impacts with a thoroughness commensurate with their severity and the significance of the action.¹⁰⁷

[2 ELR 50034]

"balancing" opposing considerations — Agencies have public values to consider other than just the environment. Balancing them against environmental values is inherent in the duty imposed by NEPA. If the environmental effects are adverse, the agency must consider whether they outweigh the benefits of the proposal. This implicit requirement is confirmed by the directive of section 102(2)(B) that agencies develop methods for giving "presently unquantified environmental amenities and values … appropriate consideration in decisionmaking along with economic and technical considerations."¹⁰⁸

However, NEPA is less clear on whether this balancing of environmental against other values must be spelled out in the environmental impact statement. Each of the five items expressly required to statements under section 102(2)(C) relates to environmental effects — except the third, which does not specify what type of information is necessary about "alternatives to the proposed action." It is not wholly clear from the bare language of section 102(2)(C) whether the 102 statement is to catalog only the environmental effects of the proposed action and alternatives or whether it is to identify all of the important values bearing on the wisdom of the proposed action. Is it to state the various opposing considerations which enter into the agency's decision?

The legislative history suggests that the Congress did expect the 102 statement to record the agency's tradeoffs of competing values. In explaining the bill on the Senate floor, Senator Jackson said:

Subsection 102(c) [now 102(2)(C)] establishes a procedure designed to insure that in instances where a proposed major Federal action would have a significant impact on the environment that the impact has in fact been considered, that any adverse effects which cannot be avoided are justified by some other stated consideration of national policy, that short-term uses are consistent with long-term productivity, and that any irreversible and irretrievable commitments of resources are warranted. (Emphasis added.)¹⁰⁹

This interpretation is supported by several statements in court decisions. In the Calvert Cliffs' case, the court stressed the necessity for balancing under NEPA. And it interpreted the role of the 102 statement in showing how the balancing was done:

In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned and "systematic" balancing analysis in each instance.

To ensure that the balancing analysis is carried out and given full effect, section 102(2)(C) requires that responsible officials of all agencies prepare a "detailed statement" covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation.¹¹⁰

Similarly, in Natural Resources Defense Council v. Moton, the court observed that:

The impact statement provides a basis for (a) evaluation of the benefits of the proposed project in light of its environmental risks, and (b) comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action.¹¹¹

This requirement to identify countervailing interests complements the primary purposes of the 102 statement: to assess the environmental effects of possible actions. NEPA was enacted out of a concern that environmental considerations were not being fully assessed before action was taken. When an agency proposes to go ahead despite adverse environmental consequences, the 102 statement must identify the other interests that justify going ahead. Of course, NEPA's purposes would not be served if the statement were to deteriorate into a promotional document in favor of the proposal, at the expense of a thorough and rigorous analysis of environmental risks. Moreover, it may be impossible and unnecessary to discuss the countervailing interests in the same detail as environmental factors. The court in the Morton case observed that "the consideration of pertinent alternatives requires a weighing of numerous matters, such as economics, foreign relations, [and] national security."¹¹² A detailed discussion of each of these subjects could require as much space as the environmental analysis itself, destroying the focus of the 102 statement and going beyond the purpose of the Act. What is necessary is a succinct recital of the interests being balanced, which will alert the President, the Congress, and the public to the nature of the interests which are being served at the expense of environmental values.

the role of the council on environmental quality

NEPA requires that each 102 statement be made available to the President, to the Council on Environmental Quality, and to the public.¹¹³ Since the Council is designated by title II of NEPA as environmental advisor to the President, the guidelines say that supplying a 102 statement to the Council satisfies the obligation to make it available to the President.¹¹⁴ But there is nothing in the Act specifying what the Council is to do with the 102 statements that it receives.

Two important constraints help to define the Council's role in the 102 process. First, NEPA does not transfer to the Council the responsibility to make each of the many Government decisions that significantly affect the environment. That responsibility remains in the Federal officials who administer the programs and who, as the responsible officials under NEPA,¹¹⁵ must prepare environmental impact statements. Thus, the Council has no legal veto power over agency proposals. However, it does perform an important advisory role with the agencies and the President. Of course, the decisions of the heads of executive agencies are subject to review by the President as Chief Executive.

Second, NEPA establishes the Council in the Executive Office of the President as a small policymaking and coordinating group, not as another large addition to the Federal bureaucracy. With a total staff of less than 60, the Council cannot make a thorough study, even for advisory purposes, of every 102 statement filed with it.

Within these limitations, the Council plays a key role in the 102 process. Under Executive Order 11514, the Council is charged with issuing guidelines to Federal agencies for implementing section 102(2)(C).¹¹⁶ Through this guideline mechanism, through assistance to agencies in preparing their own procedures for implementing NEPA, and through continuing consultation with agencies on their performance, the Council attempts to help agencies build NEPA's policy objectives into their decisionmaking apparatus. The Council believes that the consideration of environmental factors will be most effective if it comes in the early stages of program and project formulation. If the 102 process is not closely integrated at this early point, it risks becoming an overlay upon agency decisionmaking. And it tends to serve as a post facto justification of decisions based on traditional and narrow grounds. The Council's success in winning its objectives hinges largely upon its ability, through the review of section 102 statements and agency 102 procedures, to identify and pursue environmental issues.

The Council also attempts to use the 102 process to identify significant recurring substantive problems that point to a need for general reform of a Federal program through administrative action, Presidential order, or legislation. The interests protected by NEPA include not only pollution control and land use but many other aspects of the quality of life which are beyond the expertise of any single operating agency. So the Council plays an essential role in coordinating Government actions affecting those interests. Where the 102 process reveals a need for more comprehensive Government policies or programs, the Council can guide policy formulation and program development.

The 102 process also alerts the Council to the very significant projects whose environmental effects warrant careful Council review. After reviewing the 102 statement, the Council may advise the initiating agency or the President concerning the project.

As of May 31, 1972, the Council had received draft or final impact statements on 2,933 agency actions. About half of these — 1,552 — are actions for which final statements have been filed and for which the 102 process is now complete. There are still 1,381 draft statements in process. In recent months, filings of finals and drafts combined have averaged about 10 each working day. Draft statements, which represent new proposals, are averaging about 4 to 5 each day — down from roughly 10 eacy day 8 months ago. The decrease primarily reflects a drop inthe filings of highway 102's as State highway departments clear out their backlog of projects requiring NEPA analysis.

Despite this declining trend, transportation projects account for 60 percent of all actions for which 102 statements have been filed to date. Corps of Engineers projects make up about another 15 percent. This means that the remainder of the Federal establishment accounts for only 25 percent of the actions for which 102 statements have been [2 ELR 50035] filed.In nearly 2 1/2% years since NEPA's enactment, fewer than 800 statements have been prepared for all categories of Federal actions other than highways, airports, and Corps activities. That is a rate of roughly 300 per year out of the thousands of Federal projects and actions initiated annually. These data imply that some agencies are not doing enough to define actions appropriate for 102 treatment and to prepare and submit environmental impact statements. In such cases the question is not whether the goals of NEPA are being implemented effectively but whether they are being implemented at all. The Council is concerned about this and is working closely with agencies to ensure broad compliance with the requirements of section 102(2)(C).

The Council's goal is to make the 102 process self-implementing, so that environmental factors will receive proper attention without needing frequent Council or court intervention. Public participation plays a vital role in realizing this goal by sounding an alert when an agency has failed to consider important environmental effects. Together, the Council, the public, and commenting agencies can help to realize NEPA's objective of making "environmental protection a part of the mandate of every Federal agency and department".¹¹⁷

the courts and nepa

Citizen enforcement of NEPA through court action has been one of the main forces in making the Act's intended reforms a reality. The Council's Second Annual Report chronicled the early cases brought under the Act and described the implications of this citizen enforcement.¹¹⁸ The events of the past year indicate that citizen lawsuits continue to provide a check on agency compliance with NEPA and to resolve important questions about its interpretation.

The lawsuits brought under NEPA since its enactment now number over 200. The bulk of them have involved federally assisted highway or airport projects, Corps of Engineers water resources projects, land management activities of the Interior or Agriculture Department, licenses for nuclear powerplants, and federally assisted housing projects. The litigation has spawned a number of major decisions, in which the courts not only have helped to interpret NEPA but also have more clearly defined their own role under the Act.

citizen standing — the mineral king decision

The law of citizen standing was reviewed in chapter 5 of the Council's Second Annual Report. In the succeeding year court decisions have continued to confirm the right of citizens and citizen groups to invoke NEPA's protections when environmental values are threatened by an agency's failure to comply with the Act. Federal court decisions during the last year have upheld the "standing" of both individuals and public interest groups to sue under NEPA in diverse situations.¹¹⁹ The Supreme Court decision in Sierra Club v. Morton (the Mineral King case),¹²⁰ which involved laws other than NEPA, frames new guidelines on the scope of citizen standing under all Federal laws protecting environmental values.

In the Mineral King case, the Sierra Club challenged the legality of a ski resort development on Federal land in the Mineral King Valley, which lies in the southern end of the Sierra Nevada Mountains in California. The Sierra Club argued that the proposed development violated Federal statutes governing the management of the National Forests and National Parks.¹²¹ The Supreme Court held that the Sierra Club had not asserted a sufficient stake in the preservation of the Valley to have standing to bring the suit. However, the Court's opinion strongly confirmed the right of appropriate citizens and group to sue to vindicate environmental interests. It also indicated what steps a group such as the Sierra Club must take to be able to bring such suits in the future.

The Supreme Court confirmed in clear language that an injury to a noneconomic interest such as "the scenery, natural and historic objects and wildlife" of the Mineral King Valley is a sufficient base [2 ELR 50036] for a suit under the general court review provision of the Administrative Procedure Act.¹²² The Court said:

Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the legal process.¹²³

The Court observed, however, that "the impact of the proposed changes in the environment of Mineral King will not fall indiscriminately upon every citizen" but will be felt directly only by those who use the area. Therefore, only such users and organizations representing such users have sufficient threatened injury to aesthetic and recreational values to be entitled to challenge the development in a Federal court.

Figure 1

Environmental Impact Statements Filed with the Council on Environmental Quality Through May 1972 by Agency

[See Illustration in Original]

Figure 2

Environmental Impact Statements Filed with the Council on Environmental Quality Through May 1972 by Type of Federal Action

[See Illustration in Original]

The Sierra Club did not assert that its activities or those of its members would be affected by the development. It merely relied on its institutional interest in protecting natural areas such as Mineral King. The Court held that the Club had not asserted a sufficient basis for suit. The Court pointed out that the Sierra Club was free to go back to the lower Federal courts to seek to amend its complaint to claim a more direct injury. The Club has since done so.

The Court emphasized that a citizen or group which establishes its standing to sue by showing a direct involvement with the environmental asset at stake, is not limited in court to asserting just its own interest in the matter. Such a plaintiff may also assert the interest of the general public in protecting the threatened environmental values. Therefore, the requirement that the person seeking review assert an injury to himself "does not … prevent any public interests from being protected through the judicial process."¹²⁴

The Court in the Mineral King case did not address itself to another aspect of citizen standing: Who is entitled to sue when Federal action threatens legally protected environmental values enjoyed by the public as a whole, rather than by any particular user group? The values protected by Federal endangered species laws,¹²⁵ for example, seem to belong to all citizens of the United States. Moreover, in NEPA itself there is a declaration of policy to protect a broad range of environmental values for the benefit of "present and future generations of Americans."¹²⁶ When a Federal action challenged under NEPA is said to endanger the atmospheric conditions on which human life depends or the biological integrity of the oceans, the threatened injury would appear to affect all citizens. The Mineral King decision does not seem to foreclose recognizing the right of any responsible citizen or citizens' group to invoke the protections of Federal law in such cases.

The Government's brief to the Supreme Court in Mineral King acknowledged that NEPA may confer broader citizen standing than do the specific statutes involved in that case.¹²⁷ That argument is supported by the Court's statement that its ruling "does not insulate executive action from judicial review."¹²⁸

Further decisions will be necessary to clarify the full consequences of the Mineral King opinion. But already it has banished any doubt that the environmental interests embodied in Federal statutes, such as NEPA, stand on a par with economic and other interests before the Federal courts. When Government action in violation of NEPA threatens environmental interests, injured citizens are entitled to seek judicial redress.

review of agency actions

The Congress addressed section 102(2)(C) to the agencies in the executive branch of the Federal Government. Those agencies must develop procedures for implementing the 102 process. They must prepare environmental impact statements, and they must take environmental values into account in administering their programs. Federal law contains basic principles governing the role of the courts in reviewing whether agencies have complied with such directives. Those principles, which are summarized in the Administrative Procedure Act,¹²⁹ generally tell the courts to decide for themselves any questions of law passed upon by the agency. The courts may substitute their own reading of the law if they believe the agency has erred. The Federal courts are the ultimate arbiters of questions of Federal law under the Constitution.

The principles of judicial review, however, prescribe greater deference when the courts review an agency's determination of fact or its exercise of discretion in administering a program entrusted to it by law. When agency decisions of this type are made without formal procedures, they can generally be reversed by the courts only if they are "arbitrary or capricious." When the decisions are required to be made on the basis of a formal hearing similar to a trial (as described earlier in this chapter), they must be allowed to stand if supported by "substantial evidence" in the record compiled by the agency. The Supreme Court decision in Citizens to Preserve Overton Park v. Volpe,¹³⁰ discussed in the Council's Second Annual Report, lays the ground rules for applying these principles in environmental cases. Recent lower court decisions further clarify how these principles will be applied under NEPA.

the need for an impact statement — In deciding whether a 102 statement is required for a proposed action, an agency has a double duty. It must interpret the statutory phrase "major Federal actions significantly affecting the quality of the human environment," and it must determine what the environmental effects of its proposed action will be. The interpretation of the statutory phrase is a question of law. The assessment of environmental effects is largely a question of fact.

In lawsuits that have challenged agency decisions not to prepare 102 statements, courts have been exercising their responsibility to determine for themselves the scope of the statutory language. Even while doing so, the courts have acknowledged their limited role in reviewing an agency's conclusions about what effects its action will have. If an agency neglects to consider important environmental effects, the courts will send the case back to the agency for a new look — but they do not do the factfinding for the agency.¹³¹

The courts therefore have upheld agency decisions that 102 statements were not required, under the circumstances of particular cases, for a military practice maneuver in Reid State Park in Maine,¹³² for Federal approval of a lease of lands held by the Government in trust for Indians in New Mexico,¹³³ for erecting a Federal office building to house Corps of Engineers staff in Mobile, Ala.,¹³⁴ and for grants to assist construction of a 66-unit apartment project in Los Angeles and a lower income housing project in Houston.¹³⁵ They have held that 102 statements were required for a grant to assist construction of a college high-rise housing project in Portland, Oreg.,¹³⁶ for Interstate Commerce Commission approval of a temporary boost in railroad freight rates,¹³⁷ for Federal aid for widening a Wisconsin State highway,¹³⁸ and for a Soil Conservation Service project to channelize 66 miles of Chicod Creek in North Carolina.¹³⁹

In the last two decisions, the courts stressed that when an agency's decision on the applicability of section 102(2)(C) is challenged in court,

It is the court which must construe the statutory standards ("major" and "significantly affecting") and, having construed them, then apply them to the particular project, and decide whether the agency's failure [to prepare a statement] violated the congressional command.¹⁴⁰ [2 ELR 50037] This pronouncement highlights the courts' important role in judging the scope of the statutory language. Where the language is applicable, section 102(2)(C) does not make the preparation of a statement discretionary; it "is a flat command to [the agency], to the fullest extent possible, to make a detailed statement."¹⁴¹ Each determination of applicability, however, also involves an assessment of the facts about the particular project. A reading of the courts' opinions in these two cases indicates that they did not mean to deny that this basic factfinding job is for the agency, with limited court review. The opinions in the other cases recognize this traditional principle even more explicitly.¹⁴²

the content of an impact statement — The courts have had a great impact in construing the provisions of section 102(2)(C) which define what an environmental impact statement must contain. As described above, the courts have answered important questions about the agencies' duty to discuss opposing views, to consider all reasonable alternatives, and to disclose how competing interests have been balanced. However, in this area, too, the courts have been quick to point out that their role is narrower when they move from construing the statute to reviewing the content of a particular 102 statement. On the latter subject, the courts' responsibility is "to determine whether the agencies involved have fully and in good faith followed the procedure contemplated by Congress".¹⁴³

Because preparing an impact statement requires judgment and skills in a variety of disciplines, the courts have no precise standard against which to measure an agency's performance. They have acknowledged this by saying that the requirements for the content of 102 statements are subject to a "rule of reason." If a 102 statement covers each of the matters required by NEPA, a court is left only to decide whether the discussion is sufficient in depth and detail to allow the statement to fulfill its purpose — to inform the decision-makers and the public. The courts are not in a position to second-guess the judgment of the agency on the details of writing the statement. As the Court of Appeals for the District of Columbia observed in NRDC v. Morton:

In this as in other areas, the functions of the courts and agencies, rightly understood, are not in opposition but in collaboration, toward achievement of the end prescribed by Congress. So long as the officials and agencies have taken the "hard look" at environmental consequences mandated by Congress, the court does not seek to impose unreasonable extremes ….¹⁴⁴

the agency's proposed action — NEPA commands firmly that an agency must, to the fullest extent possible, take environmental values into account. It must also prepare environmental impact statements for major actions significantly affecting the quality of the human environment. If an agency fails to do either, it can be ordered to comply by court.¹⁴⁵ But neither NEPA's substantive duty nor its 102 process purports to dictate the agency's choice of a course of action in particular situations. The courts have uniformly said that, after an agency has considered environmental effects, its decision to act is subject to the limited judicial review afforded by the traditional arbitrary-or-capricious and substantial-evidence tests.

For example, the Court of Appeals for the District of Columbia has said that NEPA does not authorize a court "to interject itself within the area of discretion of the executive as to choice of the action to be taken."¹⁴⁶ A court "probably cannot reverse a substantive decision on its merits … unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values."¹⁴⁷ The Court of Appeals for the Second Circuit, reviewing the FPC's license for the controversial Storm King powerplant on the Hudson River, agreed:

The licensing of projects such as the Storm King plant and the evaluation of their environmental impact has been entrusted to "the informed judgment of the Commission, and not to the preferences of reviewing courts."¹⁴⁸

The pronouncements of other courts are similar.¹⁴⁹

The Supreme Court in Citizens to Preserve Overton Park v. Volpe¹⁵⁰ explained that the courts' role under the arbitrary-or-capricious test is to reverse an agency decision when there has been a clear error of judgment. The Court said that "this inquiry into the facts is to be searching and careful … [but] the court is not empowered to substitute its judgment for that of the agency".¹⁵¹

a new type of case — industry as plaintiff under nepa

Since its enactment, NEPA has provided a basis for environmentalists to urge more attention by Federal agencies to environmental effects and to challenge in court agency actions not in compliance with the Act.However, private business groups that either benefit from Government programs or are subject to Federal regulation are beginning to seek protection in NEPA as well. They are invoking section 102(2)(C)'s requirement of careful Federal decisionmaking as a protection against what they believe to be inadequate consideration of their interests in Federal environmental decisions.

The first decision in a case of this type was National Helium Corp. v. Morton.¹⁵² In it a company that had contracted to sell helium gas to the Federal Government challenged the Government's decision to stop purchasing the gas. The company had an obvious economic interest in preserving its business relationship with the Government. However, it sued the Government not on the basis of that interest but on the ground that, as a member of the public, it would be harmed by the environmental damage stemming from the Government's decision. The company claimed that if it ceased its operations, the helium from the gas field in which it was working, said to be the largest source of helium in the free world, would be irretrievably lost to the atmosphere. On the basis of this argument, the court held that canceling the contract was a Federal action on which a 102 statement was required. It enjoined the cancellation pending preparation of a statement. The Department of the Interior has prepared a draft statement.¹⁵³

More cases of this type are likely as the Government imposes regulations to protect the environment and companies subject to the regulations seek to challenge them in court.

In at least three cases, representatives of the cement, chemicals, and electric power industries have challenged EPA's regulations limiting air pollution emissions from new industrial plants.¹⁵⁴ The companies argue that the regulations are major Federal actions that significantly affect the environment; therefore 102 statements are required. The success of that argument will depend on how the applicability of the 102 process to EPA's regulatory activities is resolved. But regardless of how it is resolved, businesses can be expected to challenge other regulatory actions of the Government.

There is a question in these cases whether the business plaintiff has standing to challenge a violation of NEPA. NEPA is intended to protect the quality of life, while the company generally is seeking to avoid a corporate financial injury unrelated to protection of environmental values. Federal law generally allows a personto sue only when the interest he asserts is an interest intended to be [2 ELR 50038] protected by the statute involved.¹⁵⁵ Companies may be able to show in some cases that their financial interests coincide with an environmental interest protected by NEPA. For example, a company might argue that strict controls on one kind of pollution, such as ocean dumping, would force some other means of waste disposal, leading to further pollution of the air or inland waters instead. When such a relationship exists, a company may claim to protect environmental values and its own business interests at the same time. It is too early to judge whether businesses will often succeed in establishing standing to invoke NEPA in this way.

With both environmental and business groups policing agency performance under section 102(2)(C), it is virtually certain that there will continue to be a substantial load of litigation under NEPA in the years ahead. This litigation should continue to exert a strong force in realizing the purposes of the Act.

conclusions — nepa's accomplishments

In the two and a half years since its enactment, NEPA has gone far toward fulfilling its promise as one of the major pieces of governmental reform legislation in decades. It has had at least five clearly beneficial effects on the Federal Government.

First, it is a major step in bringing national policies in line with modern concerns for the quality of life. For the first time, maintaining environmental quality is acknowledged to be "the continuing responsibility of the Federal Government."¹⁵⁶ Each agency has had its horizon broadened to include not only its own parochial concerns but also the need to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings."¹⁵⁷

Second, the 102 process provides a systematic way for the Government to deal with complex problems that cut across the responsibilities of several agencies. Many of the modern problems faced by the Government are inherently complex and are beyond the responsibility of a single agency. In the past, different agencies have often responded to these problems in a piecemeal, uncoordinated fashion, largely because of the lack of a mechanism for shaping comprehensive policy. By forcing interagency consultation and attention to a broad range of effects and alternatives, section 102 fosters more sophisticated Government decisionmaking. The 102 process uncovers the need for more comprehensive policies and programs in areas such as energy and transportation. Thus it is a catalyst for more sensible policy formulation and program development.

Third, the 102 process has opened a broad range of Federal Government activities to public scrutiny and participation for the first time. Although many agency procedures were formerly closed, the agenciesare now required to explain their decisions when significant environmental values are concerned. A written study of environmental effects, including an analysis of available alternatives, must be made available to the President, the Congress, and the public before as agency acts. The public in turn has an opportunity to evaluate and comment on the agency's analysis. This new element of public participation should contribute to more careful and conscientious decisionmaking.

Fourth, agencies whose personnel have reflected a narrow focus of concerns are being required now to supplement their staffs with persons of different backgrounds relevant to environmental issues. NEPA's required "interdisciplinary approach" means that personnel must be hired who bring not only new skills but a fresh viewpoint into the agencies. Over time, this influx should lead to sharper questioning of traditional assumptions within the agencies. Out of it should emerge an institutional viewpoint that is more sympathetic to environmental values.

Fifth, NEPA's initiatives are enforceable in Federal court by citizen suit. This keeps each of these requirements from being an empty exhortation. What NEPA requires of the agencies is often difficult and uncomfortable. It is only natural that agencies are sometimes reluctant to question accepted goals and to do the work demanded by the 102 process. The willingness of citizens to sue to vindicate NEPA and the vigilance of the courts in enforcing the Act help to ensure that the agencies take their new tasks seriously.¹⁵⁸

NEPA has had a positive effect on Government decisions, although it is difficult to assess accurately the size of this impact. The examples already listed of projects and programs improved by NEPA provide little feel for NEPA's effect on the thousands of other decisions that make up the agencies' daily workload. The substantial number of impact statements filed with the Council is a sign that many agencies are responding to the Act. But the best indication available at this juncture is probably the subjective impressions of those who work with the agencies on environmental matters on a close, daily basis — the Congressional committees that oversee the Act, the environmental groups, the Council on Environmental Quality, and the Environmental Protection Agency. For its part, the Council's sustained contact with agency actions under NEPA leads it to believe that desirable changes are in fact underway in the Federal bureaucracy. There is still much room for improvement. Not all agencies are successfully identifying actions subject to 102 statements. Statements are sometimes prepared too late to have a real role in decisionmaking. Viewpoints and practices are changing more quickly in some agencies than others. But the Federal Government, at the deliberate pace characteristic of large institutions, is falling into step with the Nation's new environmental consciousness expressed in NEPA.

The General Accounting Office (GAO) recently completed a review for the House Merchant Marine and Fisheries Committee of the implementation of the 102 process by seven selected agencies: the Army Corps of Engineers, the Forest Service, the Soil Conservation Service, the Department of Housing and Urban Development, the Federal Aviation Administration, the Federal Highway Administration, and the Bureau of Reclamation.¹⁵⁹ In addition GAO analyzed the roles of the Council on Environmental Quality, EPA, and the Office of Management and Budget under the Act and called for intensified efforts in its enforcement. GAO found that the Government needs to improve its identification of projects needing 102 statements and to inject the preparation of statements earlier in the decisionmaking process. GAO also recommended that agencies supplement their NEPA procedures to ensure that measures to protect the environment are actually carried out and to improve other aspects of the 102 process. The GAO report will assist the Council and the agencies in making the 102 process more effective.

By requiring a thorough examination of environmental effects before the Government commits itself to a new course of action, NEPA supplies a needed mechanism for technology assessment. New technologies have been developed and used in the past usually without sufficient advance assessment of the broad range of environmental changes that they might bring. Now, when technological developments such as the supersonic transport and the fast-breeder nuclear reactor advance beyond research to the development stage, they must be subjected to searching analysis before implementation. Our ability to anticipate and thereby to control the environmental effects of technological change has been enhanced.

These benefits have not been without costs to the Government. The initial uncertainties about NEPA's meaning have spawned a large amount of litigation, which is always costly in money and time. As NEPA principles become clearer, this problem should decline. The need to study environmental effects and to hire new personnel carries budgetary costs. These costs may run as high as $65 million a year when NEPA is fully underway. However, much larger amounts can be wasted on any one ill-advised Federal project — for example, the Cross-Florida barge canal had cost $50 million when the President stopped it and would have cost $130 million more to complete. Moreover, careful analysis of the effects of Government action is a logical component of good public administration. Much of the cost attributed to NEPA is going for studies that should be performed in any event.

Private investment decisionmaking in many areas also has been touched by NEPA and the 102 process. Businesses subject to Federal regulation or which receive Federal funding are having to adjust to the agencies' new environmental awareness. Private planners for new power facilities, for federally assisted housing, and for development [2 ELR 50039] of the resources of Federal lands must now consider the environmental issues spelled out in section 102(2)(C). The costs to business have in some instances been substantial.

The States, too, have felt NEPA's impact. States that apply for Federal funding for projects such as highways, airports, and sewage treatment plants must anticipate the scrutiny their proposals will receive from Federal agencies. As a result, they are gathering more information on the environmental issues surrounding these projects.

NEPA's beneficial effects overlap into the international arena. Actions of the U.S. Government to which the 102 process applies often affect the environments of neighboring or even distant countries. Canada and Mexico are affected by Federal activities near their borders, and 102 statements must consider effects in those countries.¹⁶⁰ Possible effects on Japan and its environment were considered in impact statements on the removal of nerve gas from Okinawa to Johnson Island in the Pacific and the detonation of the Cannikin underground nuclear test on Amchitka Island in the Aleutian chain.¹⁶¹ Moreover, the growing number of completed 102 statements provides an information source on a broad range of environmental issues that is freely available to other nations.

The success of the 102 process has prompted a committee of the National Academy of Sciences to suggest that the United Nations consider adopting a similar process to evaluate the environmental impacts of the actions of the U.N.'s specialized agencies. The international "102 statements" would be furnished to the new U.S. environmental agency recommended by the 1972 U.N. Conference on the Human Environment in Stockholm.¹⁶²

The experiment in governmental reform begun by NEPA's passage is having steadily more wide-ranging ramifications. The Act's accomplishments to date are impressive. And there is every indication that its usefulness will increase in the coming years.

1. H.R. 6750, 91st Cong., 1st Sess. (1969).

2. S. 1075, 91st Cong., 1st Sess. (1969).

3. See 115 Cong. Rec. 19008-13 (July 10, 1969) (Senate passage); id. at 26568-91 (Sept. 23, 1969) (House passage); id. at 39701-04 (Dec. 17, 1969) (conference report).

4. [The text of NEPA appears at ELR 41009 — ed.]

5. See S. Rep. No. 91-296, 91st Cong., 1st Sess. 10-12 (July 9, 1969); H.R. Rep. No. 91-378, 91st Cong., 1st Sess. 2-3 (July 11, 1969).

6. "America the Beautiful", An Address by Russell E. Train, President, Conservation Foundation, Before the 90th Annual Meeting of the American Forestry Association Held Jointly with the National Council of State Garden Clubs, Jackson Lake Lodge, Grand Teton National Park, Wyoming, Sept. 6, 1965 (reprinted by Conservation Foundation); see Terence T. Finn, Unpublished Doctoral Dissertation on NEPA Submitted to the Department of Government, Georgetown University (1972).

7. P.L. 304, ch. 33, 60 Stat. 23 (Feb. 20, 1946), as amended, 15 U.S.C. §§ 1021-24.

8. 15 U.S.C. § 1021.

9. See 15 U.S.C. §§ 1022, 1023.

10. See, e.g., Baldwin, "The Santa Barbara Oil Spill," in Law and the Environment, p. 5 (M. Baldwin & J. Page eds. 1970); J. Sax, Defending the Environment — A Strategy for Citizen Action, pp. 240-42 (1971).

11. S. Rep. No. 91-296, 91st Cong., 1st Sess. 8 (July 9, 1969).

12. E.g., Hearings on S. 1075, S. 237, and S. 1752 Before the Committee on Interior and Insular Affairs, United States Senate 112-35 (April 16, 1969) (Testimony of Prof. Lynton K. Caldwell).

13. 115 Cong. Rec. 19008-13.

14. 115 Cong. Rec. 26568-91.

15. 115 Cong. Rec. 29046-63, 29066-89.

16. 115 Cong. Rec. 40415-27 (Dec. 20, 1969); id. at 40923-28 (Dec. 23, 1969).

17. 16 U.S.C. § 803(a).

18. 354 F.2d 608, 620, 1 ERC 1084, 1092-93, 1 ELR 20292, 20296-97 (2d Cir.), cert. denied, 384 U.S. 941 (1965).

19. Id. at 620, 1 ERC at 1093, 1 ELR at 20297.

20. 387 U.S. 428, 1 ERC 1069, 1 ELR 20117 (1967).

21. 49 U.S.C. § 1653(f). See also Department of Transportation Act § 2(b)(2), 49 U.S.C. § 1651(b)(2).

22. 16 U.S.C. § 661 et seq.

23. 16 U.S.C. § 470 et seq.

24. See, e.g., Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728, 739, 2 ERC 1260, 1263, 1 ELR 20130, 20134 (E.D. Ark. 1971).

25. See NEPA §§ 101(a), (b), 42 U.S.C. §§ 4331(a), (b).

26. See NEPA § 102(1), 42 U.S.C. § 4332(1); 115 Cong. Rec. 39703 (Dec. 17, 1969) (conference report); id. at 40418 (statement by Senator Jackson). See also Ely v. Velde, 451 F.2d 1130, 3 ERC 1280, 1 ELR 20612 (4th Cir. 1971); Calvert Cliff's Coordinating Committee v. AEC, 449 F.2d 1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971); Peterson, "An Analysis of Title I of the National Environmental Policy Act of 1969", 1 ELR 50035 (1971).

27. NEPA §§ 102(2)(B), 103, 105, 42 U.S.C. §§ 4332(2)(B), 4333, 4335.

28. See, e.g., Zabel v. Tabb, 430 F.2d 199, 1 ERC 1449, 1 ELR 20023 (5th Cir. 1970); Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971); Natural Resources Defense Council v. Morton, 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1972).

29. Zabel v. Tabb, supra note 28.

30. Department of Transportation, Environmental Impact Statement, Toll Bridge/San Francisco Bay from India Basin, San Francisco to Bay Farm Island and Alameda, Calif. (Draft, Jan. 10, 1971).

31. See Students Challenging Regulatory Agency Procedures v. ICC (D.D.C. July 10, 1972), stay pending appeal denied (Sup. Ct. July 19, 1972); Ex Parte Nos. 265 and 267, Increased Freight Rates, 1970 and 1971, 339 I.C.C. 125, 209 (1971); 37 Fed. Reg. 5202 (March 10, 1972). See generally 37 Fed. Reg. 6318 (March 28, 1972) (ICC NEPA procedures); Port of New York Authority v. United States, 451 F.2d 783, 3 ERC 1691, 2 ELR 20105 (2d Cir. 1971); City of New York v. United States, 337 F. Supp. 150, 3 ERC 1570, 2 ELR 20275 (E.D.N.Y. 1972).

32. Compare New Hampshire v. AEC, 406 F.2d 170, 1 ERC 1053 (1st Cir.), cert. denied, 395 U.S. 962 (1969), with Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971).

33. Statement by the President Terminating Construction of the Cross-Florida Barge Canal (Jan. 19, 1971), reprinted in 7 Presidential Documents 81 (Jan. 25, 1971).

34. Public Statement by Russell E. Train, Chairman, Council on Environmental Quality, and Kenneth E. BeLieu, Under Secretary, Department of the Army, "Recommndation for Future of the Oklawaha River Basin of the Cross-Florida Barge Canal Project" (May 18, 1972).

35. See note 30 supra; New York Times, Section 1, p. 64, col. 6 (June 11, 1972).

36. Department of Transportation, Environmental Impact Statement, Georgia, Cobb County I-75-3(2) 291 P.E. and I-75-3(3) 270 P.E. (Final, March 29, 1972).

37. Department of Transportation, Environmental Impact Statement, Fairfax County Airport Site (Draft, Jan. 7, 1971).

38. General Services Administration, Environmental Impact Statement, Disposal of Portion of Fort Snelling Hospital Reservation, Saint Paul, Minn. (Final, Aug. 20, 1971).

39. Department of Housing and Urban Development, Environmental Impact Statement, Proposed Park Forest South New Community, Will County, Ill. (Final, March 23, 1971).

40. Department of the Interior, Public Statement (Sept. 20, 1971).

41. Department of the Interior, Environmental Impact Statement, 1971 Outer Continental Shelf Oil and Gas Drainage Lease Sale — Offshore Louisiana, pp. 28-34, 36 (Final, Sept. 7, 1971); Department of the Interior, Public Statement (Nov. 22, 1971).

42. Forest Service, Emergency Directive No. 1 (Nov. 9, 1971), reprinted in Title 2100, Forest Service Manual.

43. See 33 C.F.R. §§ 209.120, 209.130, 209.150; Corps of Engineers Regulation 1145-2-303, Change 5 (April 23, 1970).

44. See 10 C.F.R. Part 50, Appendix D, as amended, 37 Fed. Reg. 9779 (May 17, 1972). See also 37 Fed. Reg. 10013 (May 18, 1972).

45. See Executive Order 11574 (Dec. 23, 1970); Executive Order 11644 (Feb. 8, 1972); Executive Order 11643 (Feb. 8, 1972).

46. See, e.g., H. Friendly, Benchmarks, pp. 86-154 (1967), and authorities there cited.

47. Calvert Cliffs' Coordination Committee v. AEC, 449 F.2d 1109, 1113, 2 ERC 1779, 1781, 1 ELR 20346, 20348 (D.C. Cir. 1971).

48. 36 Fed. Reg. 13722 (July 23, 1971) (Interior Department proposed rules for exploitation of geothermal steam resources). See also, e.g., Department of Housing and Urban Development, Departmental Circular No. 1390.2, "Noise Abatement and Control: Departmental Policy, Implementation Responsibilities, and Standards" (Aug. 4, 1971).

49. 499 F.2d 1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971).

50. 33 U.S.C. 1151, as amended by P.L. 91-224, 84 Stat. 91 (April 3, 1970).

51. See 115 Cong. Rec. 29046-63 (Senate consideration of Water Quality Improvement Act of 1970); id. at 29066-89 (Senate discussion of position in conference committee on NEPA); id. at 40923-28 (House debate on conference report on NEPA); 116 Cong. Rec. 8984 (Senate debate on conference report on Water Quality Improvement Act). See also Comment, 1 ELR 10125, 10127 (1971).

52. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1123, 2 ERC 1779, 1788, 1 ELR 20346, 20353 (D.C. Cir. 1971).

53. See S. 2770, § 511(d) (as passed by Senate), § 511(c) (as passed by House), 92d Cong., 2d Sess.; 117 Cong. Rec. S17456 (Daily Ed. Nov. 2, 1971).

54. 42 U.S.C. § 4331(a).

55. 42 U.S.C. § 4344(4).

56. Executive Order 11514, § 3(a) (March 5, 1970), reprinted in 35 Fed. Reg. 4247 (March 7, 1970).

57. Message from the President of the United States Transmitting a Program to Save and Enhance the Environment, H.R. Doc. No. 92-46, 92d Cong., 1st Sess. (Feb. 8, 1971); Message from the President of the United States Transmitting a Program for Environmental Protection, H.R. Doc. No. 92-247, 92d Cong., 2d Sess. (Feb. 8, 1972).

58. [The full text of the CEQ Guidelines appears at ELR 46049 and at 36 Fed. Reg. 7724 (April 23, 1971) — ed.]

59. See, e.g., Council on Environmental Quality, "Memorandum for Agency and General Counsel Liaison on National Environmental Policy Act (NEPA) Matters" (May 16, 1972), reprinted in 3 Env. Rep. 82 (May 19, 1972).

60. See, e.g., Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728, 749, 2 ERC 1260, 1 ELR 20130 (E.D. Ark. 1971); Environmental Defense Fund v. TVA, 339 F. Supp. 806, 3 ERC 1553, 2 ELR 20044 (E.D. Tenn. 1972). See generally Udall v. Tallman, 380 U.S. 1, 16 (1965).

61. 42 U.S.C. § 4332(2)(C).

62. See cases cited in notes 131-139 infra, particularly Natural Resources Defense Council v. Grant, 3 ERC 1883, 2 ELR 20185 (E.D.N.C. 1972).

63. Guidelines, supra note 58, § 5, 36 Fed. Reg. 7724.

64. See 36 Fed. Reg. 23666 (Dec. 11, 1971). The full texts of these procedures are published and kept up-to-date in 1 ELR 46001 et seq.

65. See, e.g., Hanly v. Mitchell, 4 ERC 1153, 1155, 2 ELR 20216, 20218 (2d Cir. 1972), rev'g in part __ ERC __, 2 ELR 20181 (S.D.N.Y. 1972).

66. See, e.g., Department of Transportation Order DOT 5610.1A, § 8a (Oct. 4, 1971); Hanly v. mitchell, supra note 65. See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).

67. See, e.g., Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238, 1 ERC 1271 (M.D. Pa. 1970), aff'd, 454 F.2d 613, 3 ERC 1421, 1 ELR 20622 (3d Cir. 1971); Arlington Coalition on Transportation v. Volpe, 322 F. Supp. 1218, 3 ERC 1138, 1 ELR 20486 (E.D. Va. 1971), rev'd, 3 ERC 1995, 2 ELR 20162 (4th Cir. 1972); Brooks v. Volpe, 319 F. Supp. 90, 329 F. Supp. 118, 2 ERC 1004, 1571, 1 ELR 20045, 20286 (W.D. Wash. 1970, 1971), rev'd, 3 ERC 1858, 2 ELR 20139 (9th Cir. 1972); Elliott v. Volpe, 328 F. Supp. 831, 2 ERC 1498, 1 ELR 20243 (D. Mass. 1971). Cf. Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038, 1 ERC 1713, 1 ELR 20044 (D. Ore. 1970); Citizens to Preserve Overton Park v. Volpe, 335 F. Supp. 873, 3 ERC 1510, 2 ELR 20061 (W.D. Tenn. 1972). See also Comment, 1 ELR 10113, 10115 (1971); Peterson, supra note 26, at 50048.

68. See, e.g., Arlington Coalition on Transportation v. Volpe, 3 ERC 1995, 2 ELR 20162 (4th Cir. 1972); Brooks v. Volpe, 3 ERC 1858, 2 ELR 20139 (9th Cir. 1972); Lathan v. Volpe, 455 F.2d 1111, 3 ERC 1362, 1 ELR 20602 (9th Cir. 1971); Environmental Defense Fund v. Corps of Engineers, 324 F. Supp. 878, 329 F. Supp. 543, 2 ERC 1173, 1797, 1 ELR 20079, 20366 (D.D.C. 1971); Environmental Defense Fund v. TVA, 339 F. Supp. 806, 3 ERC 1553, 2 ELR 20044 (E.D. Tenn. 1972); Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F. Supp. 918, 2 ERC 1671, 1 ELR 20237 (M.D. Pa. 1971); Morningside-Lenox Park Assn. v. Volpe, 334 F. Supp. 132, 3 ERC 1327, 1 ELR 20629 (N.D. Ga. 1971); Sierra Club v. Laird, 1 ELR 20085 (D. Ariz. 1970); Texas Committee v. United States, 1 ERC 1303 (W.D. Tex. 1970), dismissed as moot, 430 F.2d 1315 (5th Cir. 1970); Willamette Heights Neighborhood Assn. v. Volpe, 334 F. Supp. 990, 3 ERC 1520, 2 ELR 20043 (D. Ore. 1971); Nolop v. Volpe, 333 F. Supp. 1364, 3 ERC 1338, 1 ELR 20617 (D.S.D. 1971); Conservation Society v. Volpe, 4 ERC 1226, 2 ELR 20270 (D. Vt. 1972). But cf. Jicarilla Apache Tribe v. Morton, 3 ERC 1919, __ ELR ___ (D. Ariz. 1972).

69. See Izaak Walton League v. Schlesinger, 337 F. Supp. 287, 3 ERC 1453, 2 ELR 20040 (D.D.C. 1971).

70. H.R. 13752 (passed by the House April 17, 1972).

71. See generally Comment, 2 ELR 10038 (April 1972); Comment, 2 ELR 10025 (March 1972).

72. Department of the Interior, Environmental Impact Statement, "Prototype" Oil Shale Leasing Program for the States of Colorado, Utah, and Wyoming (Draft, July 1, 1971); Department of the Interior, Environmental Impact Statement, Geothermal Leasing Program (Draft, Oct. 6, 1971; Supplemental Draft, May 8, 1971).

73. Guidelines, supra note 58, § 5(b), 36 Fed. Reg. 7724-25.

74. Cf. National Resources Defense Council v. Morton, 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1972); Upper Pecos Assn. v. Stans, 328 F. Supp. 332, 2 ERC 1614, 1 ELR 20228 (D.N.M. 1971), aff'd, 452 F.2d 1233, 3 ERC 1418, 2 ELR 20085 (10th Cir. 1971), cert. granted, 40 U.S.L.W. 3556 (May 22, 1972).

75. Natural Resources Defense Council v. Morton, supra note 74, 3 ERC 1562, 2 ELR 20033, discussed in Comment, 2 ELR 10038 (April 1972).

76. Atomic Energy Commission, Environmental Impact Statement, Liquid Metal Fast Breeder Reactor Demonstration Plant (Final, April 14, 1972). See also, e.g., Department of the Interior, Environmental Impact Statement, Geothermal Leasing Program (Draft, Oct. 6, 1971; Supplemental Draft, May 8, 1971).

77. Arizona, California, Delaware, Hawaii, Indiana, Montana, New Mexico, North Carolina, Washington, and Wisconsin.

78. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).

79. Guidelines, supra note 58, § 6(a)(vii), 10(b), 36 Fed. Reg. 7725-26.

80. Id., § 10(d), 36 Fed. Reg. 7726.

81. 42 U.S.C. § 1857h-7. See the extensive Comment on § 309 in 1 ELR 10146 (1971).

82. Natural Resources Defense Council v. Morton, 3 ERC 1623, 2 ELR 20071 (D.D.C. 1972).

83. 115 Cong. Rec. 40418 (Dec. 20, 1969).

84. See 115 Cong. Rec. 40423, 40425 (Dec. 20, 1969) (statement of Senator Muskie); 115 Cong. Rec. 40925, 40927-28 (Dec. 23, 1969) (statements of Representatives Dingell and Harsha).

85. 115 Cong. Rec. 40418 (Dec. 20, 1969).

86. Guidelines, supra note 58, § 5(d), 36 Fed. Reg. 7725.

87. Kalur v. Resor, 335 F. Supp. 1, 3 ERC 1458, 1 ELR 20637 (D.D.C. 1971); Sierra Club v. Sargent, 3 ERC 1905, 2 ELR 20131 (W.D. Wash. 1972). Both decisions have been appealed. Compare Businessmen for the Public Interest v. Resor, 3 ERC 1216 (N.D. Ill. 1971).

88. See notes 152-53 infra and accompanying text.

89. See Statement of William D. Ruckelshaus, Administrator, Environmental Protection Agency, Before the Senate Committees on Public Works and Interior and Insular Affairs (March 9, 1972); Statement of Russell E. Train, Chairman, Council on Environmental Quality, Before the House Subcommittee on Fisheries and Wildlife Conservation (March 22, 1972) (testimony on H.R. 13752).

90. See 118 Cong. Rec. H2577-78 (Daily Ed. March 27, 1972) (introduction of H.R. 14103); id. at S9809 (Daily Ed. June 21, 1972) (introduction of S. 3733);Statement of Timothy Atkeson, General Counsel, Council on Environmental Quality, Before the House Subcommittee on Fisheries and Wildlife Conservation (May 2, 1972).

91. See, e.g., Atomic Energy Act § 189, as amended, 42 U.S.C. § 2239.

92. Administrative Procedure Act §§ 1-9, as amended, 5 U.S.C. §§ 551-59.

93. 455 F.2d 412, 3 ERC 1595, 2 ELR 20017 (2d Cir. 1972), petition for cert. filed, 40 U.S.L.W. 3589 (No. 71-1597, June 6, 1972). See also Students Challenging Regulatory Agency Procedures v. ICC (D.D.C. July 10, 1972), stay pending appeal denied (Sup. Ct. July 19, 1972).

94. Id. at 420, 421, 422, 3 ERC at 1599, 1601, 2 ELR at 20020, 20021 (emphasis in original).

95. Id.; see Comment, 1 ELR 10022, 10027 (1971).

96. 42 U.S.C. § 4332(2)(C).

97. See, e.g., Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728, 749, 2 ERC 1260, 1 ELR 20130 (E.D. Ark. 1971); Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 2 ERC 1425, 1 ELR 20207 (D.D.C. 1971).

98. Environmental Defense Fund v. Corps of Engineers, supra note 97, 325 F. Supp. at 759, 2 ERC at 1267, 1 ELR at 20141 (emphasis in original).

99. 3 ERC 1126, 1 ELR 20469 (D.C. Cir. 1971). Subsequent opinions in the same case are reported at 3 ERC 1210, 1256, 1 ELR 20529, 20532 (D.C. Cir. 1971); 404 U.S. 917, 3 ERC 1276, 1 ELR 20534 (1971). See also Comment, 1 ELR 10161 (1971).

100. 3 ERC at 1128, 1129, 1 ELR at 20470 (emphasis in original).

101. 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1972), discussed in Comment, 2 ELR 10038 (April 1972).

102. 3 ERC at 1561, 2 ELR at 20032, quoting 115 Cong. Rec. 40420 (Dec. 20, 1969) (explanation by Senator Jackson of bill as approved by conference committee).

103. 42 U.S.C. § 4332(2)(D), quoted in 3 ERC at 1561, 2 ELR at 20032.

104. 3 ERC at 1561 n. 12, 2 ELR at 20032 n. 12, quoting Guidelines, supra note 58, 6(a)(iv), 36 Fed. Reg. 7725.

105. 3 ERC at 1561, 2 ELR at 20032.

106. 3 ERC at 1563, 2 ELR at 20033.

107. 3 ERC at 1558, 1564, 2 ELR at 20029, 20034.

108. 42 U.S.C. § 4332(2)(B).

109. 115 Cong. Rec. 29055 (Oct. 8, 1969) (explanation of position to be taken by Senate conferees in conference committee.)

110. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1113-14, 2 ERC 1779, 1781-82, 1 ELR 20346, 20348 (D.C. Cir. 1971). See also Comment, 2 ELR 10003 (Jan. 1972).

111. 3 ERC 1558, 1561, 2 ELR 20029, 20032 (D.C. Cir. 1972).

112. Id.

113. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).

114. Guidelines, supra note 58, § 10(b), 36 Fed. Reg. 7726.

115. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).

116. Executive Order 11514, § 3(h) (March 5, 1970).

117. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1112, 2 ERC 1779, 1780, 1 ELR 20346, 20347 (D.C. Cir. 1971).

118. Council on Environmental Quality, Environmental Quality: Second Annual Report, pp. 155-58, 163-70 (1971).

119. E.g., National Helium Corp. v. Morton, 455 F.2d 650, 3 ERC 1129, 1 ELR 20478 (10th Cir. 1971), aff'g 326 F. Supp. 151, 2 ERC 1372, 1 ELR 20157 (D. Kan. 1971); Natural Resources Defense Council v. Grant, 3 ERC 1883, 2 ELR 20185 (E.D.N.C. 1972).

120. 40 U.S.L.W. 4397, 3 ERC 2039, 2 ELR 20192 (1972).

121. See statutes cited in 40 U.S.L.W. at 4398 n. 2, 3 ERC at 2040 n. 2, 2 ELR at 20193 n. 2.

122. 40 U.S.L.W. at 4399-400, 3 ERC at 2042, 2 ELR at 20194.

123. Id.

124. Id. at 4401, 3 ERC at 2044, 2 ELR at 20195.

125. See, e.g., Endangered Species Conservation Act of 1969, 16 U.S.C. §§ 668aa to 668cc-5; Bald Eagle Protection Act, as amended, 16 U.S.C. §§ 668, 668a-668d.

126. NEPA § 101(a), 42 U.S.C. § 4331(a).

127. Brief for the United States at 29-30, Sierra Club v. Morton (U.S. Supp. Ct., No. 70-34).

128. 40 U.S.L.W. at 4401, 3 ERC at 2044, 2 ELR at 20195; see Comment, 2 ELR 10034 (April 1972). See also Environmental Defense Fund v. EPA, 2 ELR 20228 n. 1 (D.C. Cir. 1972).

129. See 5 U.S.C. § 706.

130. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), discussed in Council on Environmental Quality, Environmental Quality: Second Annual Report, supra note 118, pp. 158, 168-69.

131. Hanly v. Mitchell, __ ERC __, 2 ELR 20181 (S.D.N.Y.) rev'd in part and remanded, 4 ERC 1153, 2 ELR 20216 (2d Cir. 1972).

132. Citizens for Reid State Park v. Laird, 336 F. Supp. 783, 3 ERC 1580, 2 ELR 20122 (D. Me. 1972).

133. Davis v. Morton, 335 F. Supp. 1258, 3 ERC 15468 2 ELR 20003 (D.N. Mex. 1971).

134. Save Our Ten Acres v. Kreger, __ ERC __, 2 ELR 20305 (S.D. Ala. 1972).

135. Echo Park Residents Comm. v. Romney, 3 ERC 1255, 2 ELR 20337 (C.D. Cal. 1971); Hiram Clarke Civic Club v. Romney, __ ERC __, 2 ELR 20362 (S.D. Tex. 1971).

136. Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 3 ERC 1087, 1 ELR 20492 (D. Ore. 1971).

137. Students Challenging Regulatory Agency Procedures v. ICC (D.D.C. July 10, 1972), stay pending appeal denied (Sup. Ct. July 19, 1972).

138. Scherr v. Volpe, 336 F. Supp. 882, 886, 3 ERC 1586, 1588, 2 ELR 20068, 20069 (W.D. Wis. 1971).

139. Natural Resources Defense Council v. Grant, 3 ERC 1883, 2 ELR 20185 (E.D.N.C. 1972).

140. Scherr v. Volpe, 336 F. Supp. 882, 888, 3 ERC 1586, 1590, 2 ELR 20068, 20070 (W.D. Wis. 1971); see Natural Resources Defense Council v. Grant, supra note 139, at 1890, 2 ELR at 20189.

141. Scherr v. Volpe, supra note 140, at 888, 3 ERC at 1590, 2 ELR at 20070.

142. See, e.g. Citizens for Reid State Park v. Laird, 336 F. Supp. 783, 789, 3 ERC 1580, 1584, 2 ELR 20122, 20125 (D. Me. 1972); Save Our Ten Acres v. Kreger, __ ERC __, 2 ELR 20305 (S.D. Ala. 1972); Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 3 ERC 1087, 1 ELR 20492 (D. Ore. 1971); Hanly v. Mitchell, __ ERC __, 2 ELR 20181 (S.D.N.Y.), rev'd in part and remanded, 4 ERC 1153, 2 ELR 20216 (2d Cir. 1972); Echo Park Residents Comm v. Romney, 3 ERC 1255, 2 ELR 20337 (C.D. Cal. 1971).

143. Committee for Nuclear Responsibility v. Seaborg, 3 ERC 1126, 1128, 1 ELR 20469, 20470 (D.C. Cir. 1971). See Environmental Defense Fund v. Corps of Engineers, 4 ERC 1097, 2 ELR 20353 (E.D. Ark. 1972).

144. Natural Resources Defense Council v. Morton, 3 ERC 1558, 1564, 2 ELR 20029, 20034 (D.C. Cir. 1972).

145. E.g., Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1115, 2 ERC 1779, 1783, 1 ELR 20346, 20349 (D.C. Cir. 1971).

146. Natural Resources Defense Council v. Morton, 3 ERC 1558, 1564, 2 ELR 20029, 20034 (D.C. Cir. 1972).

147. Calvert Cliffs' Coordinating Committee v. AEC, 449 F. 2d. 1109, 1115, 2 ERC 1779, 1783, 1 ELR 20346, 20349 (D.C. Cir. 1971).

148. Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 467, 3 ERC 1232, 1235, 1 ELR 20496, 20498 (2d Cir. 1971), cert. denied, 40 U.S.L.W. 3599 (June 19, 1972).

149. E.g., Environmental Defense Fund v. Corps of Engineers, 2 ERC 1260, 1261, 1 ELR 20130, 20138 (E.D. Ark. 1971); Hanly v. Mitchell, 4 ERC 1153, 2 ELR 20126 (2d Cir.), rev'g in part __ ERC __, 2 ELR 20181 (S.D.N.Y. 1972). See also S. Rep. No. 91-296, 91st Cong., 1st Sess. 20 (1969).

150. 401 U.S. 402, 2 ERC 1250, 1 ELR 20110 (1971).

151. 401 U.S. at 416, 2 ERC at 1256, 1 ELR at 20113-14. See also Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584, 2 ERC 1114, 1 ELR 20059 (D.C. Cir. 1971).

152. 326 F. Supp. 151, 2 ERC 1372, 1 ELR 20157 (D. Kan. 1971), aff'd, 455 F.2d 650, 3 ERC 1129, 1 ELR 20478 (10th Cir. 1971).

153. Department of the Interior, Environmental Impact Statement, Termination of Helium Purchase Contracts with National Helium Corp., Cities Services Helex, Inc., and Phillips Petroleum Co. (Draft, May 19, 1972).

154. Essex Chemical Corp. v. EPA (D.C. Cir. No. 72-1072, filed Jan. 21, 1972); Portland Cement Assn. v. EPA (D.C. Cir. No. 72-1073, filed Jan. 21, 1972); Appalachian Power Co. v. EPA (D.C. Cir. No. 72-1079, filed Jan. 24, 1972).

155. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Sierra Club v. Morton, 40 U.S.L.W. 4397, 4399, 3 ERC 2039, 2041, 2 ELR 20192, 20193-94 (1972); Zlotnick v. Redevelopment Land Agency, 2 ELR 20235 (D.D.C. 1972). Cf. Pizitz v. Volpe, 4 ERC 1195 (M.D. Ala. 1972).

156. NEPA § 101(b), 42 U.S.C. § 4331(b).

157. NEPA § 101(b)(2), 42 U.S.C. § 4331(b)(2).

158. See also Statement of Roger C. Cramton, Chairman, Administrative Conference of the United States, Before the Committees on Public Works and Interior and Insular Affairs (March 7, 1972).

159. Comptroller General of the United States, Report to the Subcommittee on Fisheries and Wildlife Conservation, Committee on Merchant Marine and Fisheries, House of Representatives, "Improvements Needed in Federal Efforts to Implement the National Environmental Policy Act of 1969" (May 18, 1972).

160. See, e.g., Department of the Interior, Environmental Impact Statement, Trans-Alaska Pipeline, Alaska (Final, March 20, 1972); International Boundary and Water Commission, Environmental Impact Statement, Emergency Delivery of Colorado River Water to Tijuana, Baja California, Mexico via Facilities in California (Final, June 12, 1972). See also Wilderness Society v. Morton, 4 ERC 1101, 2 ELR 20250 (D.C. Cir. 1972) (Canadian citizen and group permitted to intervene to challenge adequacy of consideration in 102 statement of effects on Canadian environment).

161. Department of Defense, Environmental Impact Statement, Operation "Red Hat" (Final, Dec. 31, 1970); Atomic Energy Commission, Environmental Impact Statement, Cannikin-Underground Nuclear Test (Final, June 23, 1971).

162. National Academy of Sciences, Institutional Arrangements for International Environmental Cooperation, pp. 30-31 (1972).