NEPA: Not So Well at Twenty

Antonio Rossmann

Mr. Rossmann is a lecturer at Stanford Law School and has been a practitioner of resources and environmental law since 1972. He has litigated many leading cases under NEPA and CEQA.

[20 ELR 10174]

Last year the Supreme Court in Robertson v. Methow Valley Citizens Council¹ and Marsh v. Oregon Natural Resources Council² extended its perfect record in National Environmental Policy Act (NEPA)³ jurisprudence: in the 20 years since NEPA was enacted, the High court has never written to expand NEPA's application and has consistently narrowed or reversed generous rulings by the courts of appeals. In essence, for two decades the Justices have never gotten it right.⁴

Professor Mandelker in these pages last September argued that Methow Valley and Oregon Natural Resources prove "NEPA Alive and Well."⁵ As a Westerner who believes the Ninth Circuit generally knows how to look after the resources within its jurisdiction,⁶ this writer disagrees. The Supreme Court's 1989 decisions unnecessarily threw out sound resolutions of those two disputes, rejected models of pragmatic environmental accountability, discouraged agency initiative to enhance the federal trusteeship over environmental values, and (not unimportant to the citizen-respondents) facilitated the probable destruction of rare natural splendor.

A comparison of the Supreme Court's NEPA doctrine with the California courts' development of the California Environmental Quality Act (CEQA),⁷ which is intentionally similar to NEPA, shows that the Supreme Court's reading of the federal statute is neither necessary nor preordained. The recent House of Representatives' vote to amend NEPA by overruling Methow Valley suggests that the Supreme Court's readings lack popular support, and offers the promise that long overdue redirection of NEPA jurisprudence will be commanded by Congress.

Revisting Methow Valley and Oregon Natural Resources

Professor Mandelker praises the Supreme Court for reversing the Ninth Circuit on three points: (1) the circuit's imposition of a substantive requirement on federal agencies to mitigate the adverse effects of their proposals, (2) the circuit's failure to enforce the Council on Environmental Quality's (CEQ) revocation of its "worst case analysis" requirement, and (3) the circuit's requirement for a supplemental environmental impact statement (EIS) as requested by federal and state wildlife officials who reviewed the dam proposed in Oregon Natural Resources. In the two Supreme Court decisions, Professor Mandelker sees a benign rejection of substantive duties to mitigate adverse impacts, reaffirmance of deference to CEQ, and application of a uniform "arbitrary and capricious" standard of judicial review.

Substantive Mitigation Duties

Professor Mandelker and the Supreme Court are dead wrong in accusing the Ninth Circuit of imposing a substantive duty to mitigate under NEPA. The Ninth Circuit did not require a specific result; it only demanded intellectual honesty from an agency that promised that result.

Methow Valley as decided by the Ninth Circuit evaluated one basic issue: the adequacy of the Forest Service's EIS on a proposed skiing development. Not at issue was the duty of the Forest Service to mitigate; the Service had adopted a decision that purported to mitigate. The question presented was whether the Forest Service could support a decision that found no impacts on a migratory deer herd or on air quality on the unsubstantiated assertion of the regional forester that an undefined and unassessed mitigation plan would be adopted.

The Ninth Circuit did not hold that the Forest Service must adopt a decision that mitigates adverse impacts. The circuit judges did hold, however, that if the Forest Service justifies a decision as one that will mitigate adverse impacts, it must prove in its EIS that such mitigation will in fact mitigate. Otherwise, the agency would not accurately describe the impacts of its action. The circuit recognized with respect to air quality that mitigation promised by third parties (state and local air quality regulators) need not be guaranteed prior to preparation of the EIS. However, here the court found the Service could not rely on [20 ELR 10175] such measures when there was no assurance that they would ever be designed or achieved.⁸

The Supreme Court thus either misunderstood or deliberately misread the Forest Service's environmental review in Methow Valley. Neither alternative is particularly conducive to a celebration that NEPA is "alive and well" under the High Court's jurisprudence.

Worst Case Analysis

The statutory language of NEPA does not mandate that the worst case analysis requirement be eliminated. A substantial body of judicial and academic authority supported the Ninth Circuit's decisions requiring the lead federal agency to assume the worst about the deer herd in Methow Valley and the fishery in Oregon Natural Resources if it lacked sufficient information to make a more precise assessment.⁹ The Supreme Court could have gone either way on the issue, and its deliberate selection of the route less protective of meaningful environmental assessment cannot be considered good news for NEPA's efficacy.

But even if one concedes that worst case analysis should not apply in future cases, and that CEQ deserved deference for having eliminated the requirement in the future, Methow Valley and Oregon Natural Resources seem especially inappropriate vehicles for the Court's pronouncement to that effect. Neither case turned on the worst case analysis requirement; notwithstanding the Court's exoneration of that duty, the federal agencies had fallen short in other aspects of their NEPA analysis (the Corps of Engineers conceded, for example, a failure to analyze properly cumulative impacts in Oregon Natural Resources). Moreover, the EISs in both cases had been initiated prior to the effective date of the CEQ repeal (May 27, 1986),¹⁰ and were only placed again "in progress" by the Ninth Circuit's disapproval of them on grounds other than worst case analysis. The agencies clearly violated CEQ regulations at the time of their EIS preparation, and letting that judgment stand would not disable the Court in a future case from disapproving of a worst case analysis requirement for EISs commenced after May 1986. Finally, the particular analyses at issue (deer herd impacts in Methow Valley and fishery impacts in Oregon Natural Resources) are not so speculative, ill-defined, or close to the frontiers of human knowledge as to prove difficult to perform or meaningless to the decision-maker. To the contrary, these two cases seem especially deserving of an assessment of how bad the proposed projects would be in the extreme. In short, were the Supreme Court benignly disposed toward NEPA, it would have deferred the worst case scenario issue to another case in which its resolution was necessary, and failure to resolve it of greater prejudice to the government.

Standard of Review

As for the standard of review to govern a decision not to supplement the EIS, at issue only in Oregon Natural Resources, the High Court's factual premises simply do not support a conclusion that no supplement should be prepared. Recall that in Oregon Natural Resources the federal and state agencies with trusteeship over fish resources joined the citizens in calling for a supplemental EIS to evaluate new impacts, generated after preparation of the initial EIS, by a dam subsequently constructed on the Rogue River and by subsequent logging within the watershed. In justifying its decision not to supplement the EIS, the Corps of Engineers not only "carefully scrutinized" the proffered information but also engaged two outside experts to assess the potential impacts of the new information. This record, in the Supreme Court's judgment, supported an agency decision to forego a supplemental EIS — a decision the Court regarded as "perhaps disputable" and one contrary to that which another decision-maker could rightfully have reached. Still, in the Court's view, failure to prepare the supplement was not "arbitrary and capricious" and therefore lawful; as Professor Mandelker notes, the opinion implies that this standard applies to preparation of not just supplements but initial impact statements as well.

This application of the arbitrary and capricious standard misses the point of the purpose of an EIS: to serve as the vehicle for identification and resolution of disputed environmental issues. In deciding the threshold question of whether to prepare or supplement an EIS, the trustee agencies' and citizens' ability to produce sufficient evidence that makes the factual issues "disputable" should earn them the formal assessment (EIS) that NEPA promises to resolve that dispute. If the new information could change one decision-maker's perception of the proposed activity, the information deserves the analysis and public scrutiny that comes from EIS preparation. In short, a benign reading of NEPA would hold that information of sufficient substance and credibility to cross the threshold of "debatability" earns an EIS. As a rule of law, an agency decision would become "arbitrary and capricious" if it did not resolve the evidentiary dispute in an EIS.

Damages Beyond Doctrine

The Supreme Court's reluctance to support the Ninth Circuit in these two cases makes for more than bad jurisprudence; it also fosters unfortunate management of natural resources on public lands. Oregon Natural Resources and Methow Valley continued the circuit's long and consistent line of decisions imposing strict NEPA compliance on federal agencies managing the public domain in the western states.¹¹ The Ninth Circuit's consistency has made a difference. Today in the Pacific Southwest Region, at least, the Forest Service has embraced public participation as successfully as any federal agency with which this writer has had transactions. The many mid-level professionals within the Service who seek to protect and enhance environmental values have used NEPA as a leveraging point within [20 ELR 10176] their agency to bring their colleagues' and superiors' thinking beyond a single focus on resource extraction.¹² The Supreme Court's denigration of Ninth Circuit doctrine undercuts a significant movement for internal reform within the Forest Service and other federal land management agencies.

Finally, the resources of the Methow Valley and the Rogue River cannot be left out of the calculus measuring the High Court's NEPA performance. While the Court's decisions did not completely clear the way for transforming a rural valley into a downhill ski complex, or for impoundment of a free flowing river, surely these resources are now at greater risk given the ability of the federal agencies to justify their adverse decisions on less than a rigorous and intellectually accountable analysis. Even if some members of our professional community see as "good news" the NEPA jurisprudence created in Methow Valley and Oregon Natural Resources, the news is not at all good to the Oregonians defending the valley and river.

Contrasting the California Experience

The Supreme Court's unfortunate record in NEPA jurisprudence is not intellectually inevitable. The strong parallels between NEPA and the CEQA, and the California courts' implementation of CEQA, show that the same statutory model can produce dramatically different interpretations.

NEPA is designed primarily as an information-producing statute, one that also creates a procedural framework to introduce public participation into arenas from which it had been absent. While the law embraces substantive expressions of environmental preferences and protection, the statute does not mandate selection of the environmentally favorable alternative. The law is designed to force identification of the least damaging course of action, and to give that information to interested agencies and citizens so that they can advocate that the lead agency exercise its discretion in favor of the environment. In the end, however, NEPA reposes the ultimate balancing and discretion in the line agency sponsoring the project. Judicial review focuses on procedural compliance, and only tests a final decision for a rational connection between evidence and conclusions.

CEQA is constructed on precisely this same model. The law was intentionally patterned after NEPA,¹³ and well into its first decade returned the compliment; under the CEQ chairmanship of former California Assemblyman Charles Warren and general counsellorship of former California Chief Environmental Deputy Attorney General Nicholas Yost, the 1978 CEQ regulations incorporated into federal procedure many features that had been judicially and legislatively refined in California.¹⁴ Like NEPA, CEQA contains strong substantive policy language and procedural measures designed to encourage adoption of the environmentally favorable course; but (in contrast, for example, to the laws of Michigan¹⁵ and Minnesota¹⁶) CEQA leaves the agency room to escape the environmentally favorable alternative with a finding of infeasibility, a finding that the California courts will not review de novo but instead affirm if supported by substantial evidence.¹⁷

Despite the nearly identical models of the two statutes, the California doctrine had departed sharply from the restrained and retreating mandates of NEPA. Almost from the beginning, the California rule has required preparation of an environmental impact report (EIR, the state equivalent of an EIS) whenever substantial evidence in the record enabled a "fair argument" that the project might have adverse effects.¹⁸ That is, in assessing the threshold duty of environmental assessment, the rule of law is not that an agency's decision to forego an EIR will be exonerated if supported by substantial evidence, but that the forbearance will be set aside if any substantial evidence opposes the agency's conclusion.¹⁹ In preparation of its EIR, an agency may not justify a decision as mitigating adverse effects without proving in the document that the mitigation is in fact feasible.²⁰ And while agencies may ultimately be able to disregard environmentally favorable alternatives, "[t]he underlying policy and express provisions of CEQA limit the approving agency's power to authorize an environmentally harmful proposal when an economically feasible alternative is available."²¹ In particular, agencies may not avoid examination of alternatives by declaring that they have mitigated a proposed project to their satisfaction; since mitigation is but one form of alternative, the agency must justify its rejection of all proposed mitigations and alternatives.²²

[20 ELR 10177]

Thus, notwithstanding the fundamental similarities in NEPA and CEQA, had the California courts been called upon to review Methow Valley and Oregon Natural Resources as controversies arising under the state law, the holdings would have been completely at odds with the U.S. Supreme Court's decisions. Two reasons, in this writer's view, explain how such similar statutes could receive such dissimilar interpretations.

First is the role of the court of last resort. From the beginning the California Supreme Court assumed leadership in forcefully articulating CEQA's command that fullest possible protection to the environment be accorded consistent with the statutory language.²³ Mammoth not only came decisively; it came early, with only one intermediate appellate CEQA decision preceding it. In contrast, the U.S. Supreme Court has never embraced the "fullest possible protection" doctrine, even though NEPA embraces language nearly identical to CEQA, and was enacted in a nearly contemporaneous legislative setting in which the legislators had promised to change government's treatment of the environment. Indeed, the High Court did not even address NEPA until 1975, and then only to begin its track record of consistently reining in the circuit courts of appeal.²⁴ To the embarrassment of the Justices and the enduring honor of J. Skelly Wright, the federal paradigm followed in Mammoth was not the product of our highest court, but instead the work of Judge Wright's D.C. Circuit.²⁵

Moreover, the California Supreme Court's leadership has continued, notwithstanding dramatic changes in the personnel and tenor of the tribunal. In late 1988 the Deukmejian-appointed Court released its first CEQA opinion.²⁶ While most observers hoped that the new justices would not retreat from the rulings of the 1970s, the court not only unanimously reaffirmed the vigor of CEQA's mandates that EIRs be honestly and thoroughly completed, but broke new ground in defining the range of project alternatives that must be considered, outlining the scope of reasonably foreseeable future projects that must be assessed with the project under consideration, and revitalizing the rule that an agency could not avoid the environmentally favorable alternative without fully explaining why it was not accepted.²⁷

Finally, CEQA has benefited from a fruitful collaboration between the California courts and the California legislature. The legislature has been sensitive and responsive to judicial interpretation of CEQA, and the result has largely been pro-environmental. Immediately after the Mammoth decision held CEQA applicable to private applications for public permits, the California legislature ratified that holding, while creating an interim moratorium on CEQA suits not commenced at the time Mammoth was decided.²⁸ Four years later, when other judicial opinions followed Mammoth to suggest that CEQA embraced a duty to select the environmentally favorable alternative,²⁹ the legislature specified administrative findings that would encourage an agency to reach this result by requiring its written justification for departure from it, while nonetheless preserving to the decision-maker the ultimate judgment on project approval.³⁰ Similarly, when the lower California courts rejected a "functional equivalent" staff report as a substitute for a complete EIR, the legislature expressly authorized a functional equivalent with procedural and substantive duties that maintained CEQA's protective principles.³¹ While there have been some special-interest exceptions granted along the way (bidding on the 1984 Olympic Games remaining perhaps the most prominent example),³² and a small handful of cases in which the legislature limited a pro-environmental judicial rule,³³ the overwhelming response of the California legislature has been one of ratifying and strengthening CEQA's vigorous interpretation by the California courts.

Bringing NEPA Home to Congress

That example now appears ripe for application to NEPA. In contrast to the California measure, NEPA has not been substantively amended since President Nixon signed it 20 years ago. Yet in those two decades, the statute's judicial application has been stillborn, at least since the Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.³⁴ decision scolded the constructive and imaginative applications of NEPA in the circuit courts of appeal. While numerous amendments to NEPA have been offered in the intervening years, the High Court's decision in Methow Valley appears finally to have ignited the engine of legislative correction.

Last year H.R. 1113³⁵ was offered by Congressman Studds (D-Mass.) to deal initially with assessment of global impacts and ratify NEPA's transnational and extraterritorial application. While the bill as reported out of committee softened the mandate for extraterritorial application into a requirement that federal agencies "consider" the transitional impacts of their actions,³⁶ the measure came down hard on Methow Valley: not only would federal agencies be required to evaluate and implement mitigation measures they propose;³⁷ agencies would also be required [20 ELR 10178] to review the effectiveness of the mitigation measures after they are implemented.³⁸ As the House Report explains, "[a]n agency that identifies and selects environmental mitigation and monitoring measures as a basis for going forward with an action is obliged to ensure that the measures are implemented" unless new technology permits substitute measures that maintain or enhance the environmental benefits of the original decision.³⁹ Other portions of H.R. 1113 ratify the authority of CEQ to issue its NEPA regulations,⁴⁰ and require consideration of alternatives and mitigation measures that would completely or partially mitigate the adverse impacts identified in an EIS.⁴¹ Finally and obviously, but nonetheless worth restating, H.R. 1113 leaves no room for an agency to avoid consultation with the public.⁴²

H.R. 1113 passed out of the lower house on a voice vote on October 10, 1989.⁴³ A separate Senate bill, S. 1089,⁴⁴ which would transcend H.R. 1113 and affirmatively require "fully developed mitigation plans," now awaits action before the Senate Environment and Public Works Committee. Most observers give a merged bill a good chance of passage. Now by legislation, as in 1978 by CEQ regulations, NEPA will blossom from the California CEQA experience. May H.R. 1113 or S. 1089 become the first of many measures in which Congress restates the application of NEPA as its authors intended two decades ago. If the federal legislators — and judges — follow the example of their California colleagues, we may soon all agree that NEPA has become "alive and well"!

1. 109 S. Ct. 1835, 19 ELR 20743 (1989).

2. 109 S. Ct. 1851, 19 ELR 20749 (1989).

3. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-014.

4. Methow Valley, 109 S. Ct. at 1835, 19 ELR at 20743; Oregon Natural Resources, 109 S. Ct. at 1851, 19 ELR at 20749; Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 13 ELR 20544 (1983) (NRC complied with NEPA in adopting general rules on consideration in nuclear reactor licensing decisions of environmental impacts of nuclear fuel cycle); Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 13 ELR 20515 (1983) (NEPA does not require NRC to consider potential psychological harm to local residents before authorizing resumption of power generation at Three Mile Island); Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 12 ELR 20098 (1981) (Navy not required to prepare EIS for classified nuclear weapons storage project); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 10 ELR 20079 (1980) (per curiam) (HUD complied with NEPA in considering environmental consequences of siting low-income housing project); Andrus v. Sierra Club, 442 U.S. 347, 9 ELR 20390 (1979) (agencies not required to prepare EISs for appropriations requests); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978) (NRC complied with NEPA in licensing two nuclear power plants); Kleppe v. Sierra Club, 427 U.S. 390, 6 ELR 20532 (1976) (agency not required to prepare EIS for coal leasing when it is not proposing regional coal development); Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 6 ELR 20528 (1976) (EIS not required when there is "clear and unavoidable conflict" between requirements of NEPA and another statute); Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP II), 422 U.S. 289, 5 ELR 20418 (1975) (ICC complied with NEPA in assessing environmental impacts on recycling industry of general railroad freight rate increase).

5. Mandelker, NEPA Alive and Well: The Supreme Court Takes Two, 19 ELR 10385 (Sept. 1989).

6. There are exceptions, e.g., California v. FERC, 877 F.2d 743, 19 ELR 21303 (9th Cir.), cert. granted, 58 U.S.L.W. 3369 (U.S. Dec. 4, 1989) (No. 89-333); United States v. California, 558 F.2d 1347 (9th Cir. 1977), rev'd, 438 U.S. 645 (1978).

7. CAL. PUB. RES. CODE §§ 21000-21176.

8. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815-20, 18 ELR 20163, 20165-67 (9th Cir. 1987).

9. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244, 15 ELR 20035, 20037 (9th Cir. 1984); Southern Ore. Citizens Against Toxic Sprays v. Clark, 720 F.2d 1475, 14 ELR 20061 (9th Cir. 1983), cert. denied, 469 U.S. 1028 (1984); Sierra Club v. Sigler, 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983); Yost, Don't Gut Worst Case Analysis, 13 ELR 10394 (Dec. 1983); see also Case Note, Robertson v. Methow Valley Citizens Council and the New "Worst Case Analysis" Regulation, 8 UCLA J. ENTL. L. & POL'Y 287 (1989). But see Masterman, Worst Case Analysis, The Final Chapter?, 19 ELR 10026 (Jan. 1989).

10. See 40 C.F.R. § 1502.22(c).

11. See, e.g., Save Our Ecosystems, 747 F.2d at 1240, 15 ELR at 20035; Southern Oregon Citizens, 720 F.2d at 1475, 14 ELR at 20061.

12. In his 20-year retrospective on NEPA, the statute's principal author, Professor Lynton Caldwell, agrees: "NEPA's successes can be attributed . . . to popular support for its objectives, especially among younger members of the federal bureaucracy. . . . [M]any agency personnel welcomed a tool to resist political importunities to pursue environmentally harmful measures." Caldwell, NEPA Revisited: A Call for a Constitutional Amendment, ENVTL. F., Nov.-Dec. 1989, at 18, 21.

13. Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247, 260, 502 P.2d 1049, 1056, 2 ELR 20673, 20676 (1972).

14. For example, the 1978 requirement for a "record of decision" that documents the environmentally favorable alternative and requires the federal agency to explain what overriding factors rendered its selection not feasible, 40 C.F.R. § 1505.2, traces nearly verbatim the 1976 statutory language of California Public Resources Code §§ 21002 and 21081, and the seminal 1972 decision in Mammoth, 8 Cal. 3d at 263, 502 P.2d at 1058, 2 ELR at 20677.

15. Michigan Environmental Protection Act of 1970, MICH. COMP. L. §§ 691.1201, et seq.; see West Mich. Envtl. Action Council v. Natural Resources Comm'n, 405 Mich. 7, 275 N.W.2d 538, 9 ELR 20487 (1979).

16. Minnesota Environmental Rights Law, Minn. Stats. ch. 116B; Minnesota Environmental Policy Law, ch. 116D; see State by Powderly v. Erickson, 285 N.W.2d 84 (Minn. 1979).

17. CAL. PUB. RES. CODE §§ 21081, 21168; see Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, 106 Cal. App. 3d 893, 913 (1980).

18. No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 5 ELR 20166 (1974).

19. A recent intermediate appellate decision, over strong dissent, did not subject a supplemental EIR to this same standard. See Fund for Environmental Defense v. County of Orange, 204 Cal. App. 3d 1558 (1988). This erroneous holding has not been affirmed by the California Supreme Court.

20. Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296 (1988); County of Inyo v. City of Los Angeles (V), 124 Cal. App. 3d 1, 11 ELR 21093 (1981). A recent legislative amendment also requires agencies to establish a mitigation monitoring program to ensure that promisedmitigation is actually carried out. CAL. PUB. RES. CODE, § 21081.6.

21. County of Inyo v. City of Los Angeles (III), 71 Cal. App. 3d 185, 203, 7 ELR 20583, 20587 (1977).

22. Laurel Heights Improvement Ass'n v. Regents, 47 Cal. 3d 376, 764 P.2d 278, 19 ELR 20427 (1988). Laurel Heights overruled sub silentio Laurel Hills Homeowners Ass'n v. City Council, 83 Cal. App. 3d 515, 8 ELR 20714 (1978), on this point, thus correcting the erroneous interpretation in Laurel Hills noted in Comment, CEQA's Substantive Mandate Clouded by Appellate Court, 8 ELR 10208 (Oct. 1978); Comment, Substantive Enforcement of the California Environmental Quality Act, 69 CAL. L. REV. 112, 125 (1981). See Cosby-Rossmann, State High Court Continues Generous Policy on EIRs, L.A. DAILY J. (Dec. 21, 1988) at 6.

23. Mammoth, 8 Cal. 3d at 259, 502 P.2d at 1056, 2 ELR at 20676.

24. Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP II), 422 U.S. 289, 5 ELR 20418 (1975).

25. Calvert Cliff's Coordinating Comm. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

26. Laurel Heights, 47 Cal. 3d at 376, 764 P.2d at 278, 19 ELR at 20427.

27. See Cosby-Rossmann, supra note 22.

28. Cal. Stat. 1972, ch. 1154 (adding CAL. PUB. RES. CODE §§ 21065, 21080).

29. See Burger v. County of Mendocino, 45 Cal. App. 3d 322, 327 (1975).

30. Cal. Stat. 1976, ch. 1312 (adding CAL. PUB. RES. CODE §§ 21002, 21002.1, 21081).

31. Cal. Stat. 1975, ch. 1187 (adding CAL. PUB. RES. CODE § 21080.5); see Natural Resources Defense Council, Inc. v. Arcata Nat'l Corp., 59 Cal. App. 3d 959, 6 ELR 20623 (1976).

32. CAL. PUB. RES. CODE § 21080(b)(7).

33. E.g., Cal. Stat. 1981, ch. 480, amending CAL. PUB. RES. CODE § 21082.1 to "clarify" Woodland Hills Residents Ass'n v. City Council (III), 26 Cal. 3d 938 (1981).

34. 435 U.S. 519, 8 ELR 20288 (1978).

35. 135 CONG. REC. H382 (daily ed. Feb. 23, 1989).

36. H.R. 1113, § 5.

37. H.R. 1113, § 1(d), adding new § 106 to NEPA.

38. Id. § 4.

39. H. REP. 101-219 (to accompany H.R. 1113), 101st Cong., 1st Sess., at 9 (1989).

40. H.R. 1113, § 3, adding 42 U.S.C. § 4344(9).

41. H.R. 1113, § 1(b)(1), amending 42 U.S.C. § 4332(2)(C)(iii).

42. H.R. 1113, § 1(b)(2), amending 42 U.S.C. § 4332(2)(C).

43. 135 CONG. REC. H6836 (daily ed. Oct. 10, 1989).

44. 135 CONG. REC. S5989, S5990 (daily ed. June 1, 1989) (bill reprinted).