The Legislative Environmental Impact Statement: An Analysis of Public Citizen v. Office of the U.S. Trade Representative

Joseph Mendelson III and Andrew Kimbrell

Joseph Mendelson III is an attorney with the Foundation on Economic Trends (FET) and the Greenhouse Crisis Foundation, Washington, D.C. The activities of the FET are centered around the environmental, economic, and ethical concerns raised by the development and commercialization of emerging technologies. Mr. Mendelson received his B.A. from Colgate University (1988) and his J.D. from the George Washington University (1991). Andrew Kimbrell is Policy Director and Counsel for the FET and the Greenhouse Crisis Foundation. Mr. Kimbrell received both his undergraduate and law degrees from New York University. A frequent writer and lecturer on biotechnology, the greenhouse effect, and other questions of science and law, his most recent publication is the book, The Human Body Shop (Harper Collins).

[23 ELR 10653]

At its heart, the National Environmental Policy Act (NEPA)¹ is an informational statute. Designed to make Congress and the public the beneficiaries of environmental impact information for all major federal projects, NEPA § 102(2)(C) requires all federal government agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on the environmental impact of the proposed action."² NEPA's requirement that federal agencies perform environmental impact statements (EISs) before undertaking specific major federal actions has been publicized, analyzed, and enforced relatively thoroughly.³ In contrast, Congress and the executive branch have largely ignored NEPA's mandate that agencies prepare legislative environmental impact statements (LEISs) to help the legislative branch predict, prevent, and analyze environmental impacts of broader, proposed programs. As a result of this indifference, federal agencies usually prepare NEPA documents about legislative programs, if at all, only after initiating them and responding to legal challenges. At that point, Congress may have already committed substantial resources to the programs, limiting the usefulness of environmental impact information.

A recent ruling by the U.S. District Court for the District of Columbia initially transformed the LEIS requirement's moribund status. In Public Citizen v. Office of the U.S. Trade Representative,⁴ the court issued a declaratory judgment that the Office of the United States Trade Representative (OTR) violated NEPA by failing to prepare a legislative EIS to accompany the completed North American Free Trade Agreement (NAFTA). The decision was promptly overturned by the U.S. Court of Appeals for the District of Columbia Circuit. The decisions have renewed interest in NEPA's role in improving legislation, the use of LEIS deficiency as a cause of action, and the judicial remedies available when agencies fail to perform LEISs. This Dialogue looks at the history of the LEIS requirement, analyzes the Public Citizen decisions, and recommends several steps for revitalizing NEPA's LEIS provisions.

Background

In 1991, the United States, Canada, and Mexico began negotiations to establish a North American free trade zone.⁵ These negotiations resulted in NAFTA, a comprehensive agreement affecting every aspect of trade between the three countries, which their trade representatives signed on October 7, 1992.

NAFTA is subject to the Trade Act of 1974 (Trade Acts),⁶ which mandate that the OTR serve as the President's chief negotiator in trade matters.⁷ Congress has assured that the agreement will be submitted under the so-called fast track approval process.⁸ Under the fast track process, the President will submit NAFTA to Congress along with implementing [23 ELR 10654] legislation and an explanation of any changes to current law.⁹ Both the House of Representatives and the Senate must then approve the trade agreement and implementing legislation.¹⁰ Under the fast track provisions, Congress has a limited time to debate NAFTA and may not change the implementing legislation or the agreement.¹¹ Although the President can abandon his pursuit of NAFTA's approval, he is expected to submit the trade agreement to Congress for approval this fall.¹²

In August of 1991, three nonprofit environmental organizations, Public Citizen, Sierra Club, and Friends of the Earth, brought a challenge to NAFTA, asserting that the OTR violated NEPA by failing to prepare an LEIS to accompany the submission of NAFTA to Congress.¹³ At that time the negotiations on the trade agreement had not yet concluded and the participating countries had not signed the agreement. In holding that it lacked the ability to rule on the case, the court noted that because the agreement was not yet complete, there was no final agency action on NAFTA.¹⁴

After the treaty had been completed, however, the plaintiffs filed Public Citizen.¹⁵ The district court held that final agency action was then present because the treaty had been signed, negotiations completed, and, under the congressional fast track negotiating authority, the agreement could not be changed before submission to Congress. Ultimately, the court held that the agreement came under the plain language of NEPA § 102(2)(C).¹⁶ Noting that the completion of an LEIS could only aid Congress in its decisionmaking, the U.S. District Court for the District of Columbia ordered the OTR to complete an LEIS "with all deliberate speed."¹⁷

On September 24, 1993, the U.S. Court of Appeals overturned the District Court's decision, holding that "the final agency action challenged in this case is the submission of NAFTA to Congress by the President…. [H]is action, and not that of the OTR, will directly affect Public Citizen's members."¹⁸ Because the President is not an agency, the D.C. Circuit held that his actions are not reviewable under the Administrative Procedure Act.

Ignoring the Impact — The Early LEIS Years

The courts' decisions in Public Citizen are the culmination of a long judicial debate over the relevance and applicability of the LEIS requirement. Early interpretations of NEPA suggested that the LEIS would play a significant role in the future of the Nation's environmental lawmaking. The Council for Environmental Quality (CEQ), which is responsible for promulgating NEPA's regulations, initially took the position that almost every type of legislative proposal or report was subject to the LEIS requirement. In its 1970 NEPA guidelines, the CEQ defined "legislation" as "(i) agency recommendations on their own proposalsfor legislation and (ii) agency reports on legislation initiated elsewhere. (In the latter case only the agency which has primary responsibility for the subject matter involved will prepare an environmental statement.)"¹⁹ Congress apparently had a similar view of the LEIS requirement. In heralding NEPA's arrival, Rep. John Dingell remarked that "section 102(2)(C) of the act requires all agencies of the Federal Government, to the fullest extent possible, to include a detailed statement on every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment."²⁰

Despite this history, congressional response to the LEIS process has been less than overwhelming. Early in NEPA's implementation, the House Committee on Merchant Marine and Fisheries estimated that if the LEISs were being prepared as they should be, 800 statements would be submitted during each session of Congress.²¹ In 1971, the Committee reported that federal agencies had introduced over 4,000 bills related to the environment in the 91st Congress but had prepared only a total of seven LEISs.²² During congressional oversight hearings concerning the administration of NEPA, one commentator remarked, "Surely among the thousands of bills introduced in Congress and the hundreds enacted during the last two years, there have been a great many which would have substantial or adverse effects on the environment. One reaches the reluctant conclusion that NEPA has been virtually a dead letter in this respect."²³

Commentators have blamed several parties for the early disinterested response to the LEIS requirement. One has suggested that Congress may have viewed the LEIS process as an unnecessary extension of the executive decisionmaking process into the legislative arena, especially since Congress already has its own information gathering methods.²⁴ The Senate Committee on Public Works, for example, regularly ignores its own rule requiring the receipt of an LEIS [23 ELR 10655] with proposed legislation.²⁵ Both the CEQ and Office of Management and Budget (OMB) have also been blamed for the quick decline of the LEIS; the CEQ for its failure to aggressively advocate for the LEISs despite its oversight of NEPA's implementation for executive agencies, and the OMB for routinely clearing legislation submitted without the LEISs.²⁶

Second Generation Responses by the Executive and the Judiciary

Despite Congress' and the executive agencies' initial hesitancy to use the powerful LEIS requirement as a decisionmaking tool, NEPA's supporters and opponents alike feared that widespread application of § 102(2)(C) could delay important legislative initiatives. These fears were spurred in 1975, when the U.S. District Court for the District of Columbia, in Sierra Club v. Morton, ruled that budget proposals for financing the National Wildlife Refuge System were recommendations or reports on proposals for legislation that required an LEIS.²⁷ The decision was the first to suggest that all proposals affecting the human environment, including appropriations, were potential subjects of NEPA's litigation.

Similar decisions followed. In Realty Income Trust v. Eckerd, the U.S. Court of Appeals for the District of Columbia Circuit further expanded the definition of "legislative proposals."²⁸ The court ruled that the General Service Administration (GSA) violated NEPA by failing to present the House and Senate Committees on Public Works with an LEIS to accompany a prospectus for constructing a $ 25 million building in Jackson, Mississippi. Although the GSA's prospectus only required the approval of the two committees, rather than a full congressional vote, the court noted that "it is at a critical juncture like this, when the Committees are weighing the final Congressional judgments about whether to proceed with these projects at all, that the 'environmental source material' provided by an EIS, would appear to be particularly needed in making relevant decisions."²⁹ The Federal District Court for the District of Hawaii extended this broad definition of "legislative proposals" still further when the court ruled that the Navy's appropriation for bombing activities on the island of Kahoolawe required an accompanying LEIS every year.³⁰

The growing reach of the LEIS' provisions prompted the CEQ to redefine the type of actions that required an LEIS. In its 1977 NEPA implementing regulations, the CEQ defined legislation as "a bill or legislative proposal to Congress developed by or with the significant support of a Federal agency, but [not] requests for appropriations."³¹ In Andrus v. Sierra Club, the U.S. Supreme Court quickly adopted the new CEQ definition and held unanimously that appropriation requests are not proposals for legislation within the meaning of NEPA § 102(2)(C).³² Using the traditional distinction Congress had drawn between legislation and appropriation and the rules of both Houses prohibiting legislation from being added to an appropriation bill, the court reasoned that appropriations did not meet the threshold definition of legislation. The court explained, "Section 102(2)(C) is thus best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than those which merely suggest how such actions may be funded."³³ Following the U.S. Supreme Court decision, the U.S. Court of Appeals for the Ninth Circuit overturned the district court decision requiring the Navy to submit annual LEISs for the Kahoolawe island bombing activity,³⁴ and another district court held the LEIS requirement inapplicable to a proposal for the modification of a state and federal water project cost sharing program.³⁵

Although these decisions clarified that appropriation proposals are beyond NEPA's grasp, they did not exempt other forms of legislation from the LEIS requirement. The recent Public Citizen decisions are consistent with continued application of the LEIS requirement to all final agency legislative proposals or reports that are not appropriation proposals or constitutionally or statutorily required to be submitted by the President.³⁶

In Public Citizen, the district court pointed out that although NAFTA is a trade agreement, not a proposed piece of legislation, and is not required to be submitted to Congress, it has all of the earmarks of a final legislative proposal. The agreement was signed by the three participating countries, [23 ELR 10656] the OTR functions as an executive agency with its own statutory basis for authority, and NAFTA will be submitted to Congress for approval in its current form.³⁷ Citing Realty Income Trust and Trustees for Alaska v. Hodel,³⁸ the district court held that NAFTA does constitute final agency action on a proposal, that "an EIS must be prepared once such a proposal is completed and that its submission to Congress is not required."³⁹ By focusing on NAFTA itself instead of the finalized implementing legislation that the OTR submitted with it, the district court expanded the applicability of the LEIS requirement to include trade agreements and similar actions.

However, the expanded scope of the LEIS requirement was short-lived. The D.C. Circuit reversed the district court, holding that despite the OTR's completion of its role as NAFTA negotiator, the final agency action needed to trigger NEPA's requirements was not present. Relying on the recent Supreme Court decision in Franklin v. Massachusetts,⁴⁰ the D.C. Circuit determined that it is the action of the President submitting NAFTA to Congress, not the OTR completing negotiations, that has the required "direct effect" on the plaintiffs.⁴¹ However, because the President is not an agency, his actions are not reviewable under the Administrative Procedure Act.⁴²

In dicta, the D.C. Circuit stressed its view that the LEIS requirement remains enforceable:

Although we acknowledge the stringency of Franklin's "direct effect" requirement, we disagree that it represents the death knell of the legislative EIS. Franklin is limited to those cases in which the President has final constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties…. When the President's role is not essential to the integrity of the process, however, APA review of otherwise final agency actions may well be available.⁴³

The court noted that Franklin emphasizes the importance of the President's role in the integrity of the process at issue. Here, Congress specifically required that the President, and not the OTR, submit NAFTA and its implementing legislation, indicating that Congress deems the President's involvement essential to the integrity of the international trade negotiations.⁴⁴ Thus, the court's analysis would not insulate from judicial review an effort by the executive branch to end run the LEIS requirement by having the President, rather than an agency, submit legislation in situations where the U.S. Constitution or Congress has not recognized an essential presidential role in the submission. Whether a president would even cooperate in an agency's effort to bypass NEPA is also, of course, questionable.⁴⁵ Because most legislative proposals do not require presidential involvement, and are in fact submitted by the agencies directly, not by the President, this restriction on NEPA should have fairly limited application. Thus the Public Citizen decisions, while not expanding the scope of the LEIS requirement, do not interfere with its application to all final agency proposals for legislation that are not appropriations or constitutionally or statutorily required to be submitted by the President.

Issues of Standing

While the D.C. Circuit's Public Citizen opinion helps to clarify the scope of the LEIS requirement, various approaches demonstrating plaintiffs' standing to bring the LEIS' claims to court remain subject to debate. Prior to 1977, the majority of cases held that a court could review an agency's failure to prepare an LEIS at a private plaintiff's behest.⁴⁶ However, in Wingfield v. Office of Management and Budget, a district court held that a private individual lacked standing to enforce the requirement that the LEISs be included in every recommendation or report on proposals for legislation.⁴⁷ The court denied a coal field owner's attempt to force an LEIS for proposed antistrip mining legislation, declaring that the LEIS provision was intended only to aid Congress and not to give private parties a right of action to claim injury from the legislative process.

Similarly, in Chamber of Commerce v. Department of Interior, in which the plaintiff sought injunctive relief against the transmission of a Department of Interior's proposal to Congress, the court ruled that a plaintiff's inability to comment on proposed legislation, caused by the agency's failure to submit an LEIS, did not constitute sufficient injury-in-fact to grant the plaintiff standing.⁴⁸ The court reasoned that any comments the plaintiff could have submitted would have had at best only a speculative impact on the shape of the enactments, if any, which finally emerged from the legislative process.⁴⁹

Late in 1977, however, the law of standing in the LEIS cases changed. In Atchison, Topeka, and Santa Fe Railway v.Callaway, the U.S. District Court for the District of Columbia ruled that the plaintiffs could challenge the adequacy of a completed final LEIS where an agency's specific regulations required the filing of both a draft and final legislative EIS.⁵⁰ The court concluded "that the section 102(2)(C) EIS requirement for legislative proposals is enforceable by a private right of action, and that private right of action includes challenges to the adequacy of, as well as to the absence of, an EIS."⁵¹ Among the reasons asserted [23 ELR 10657] by the court for finding standing was that "one major purpose of the EIS requirement for legislative proposals … is to provide the public with information about the environmental impacts of proposed projects to permit meaningful participation by interested parties in the decisionmaking process."⁵² The court held that "NEPA creates a 'statutory right or entitlement to environmental information,' and the alleged deprivation of such information clearly confers on plaintiffs 'standing to sue even where the plaintiff[s] would have suffered no judicially cognizable injury in the absence of statute.'"⁵³

In 1986, the U.S. Court of Appeals for the Ninth Circuit ruled that a coalition of citizens groups had standing to challenge an agency's failure to prepare a draft LEIS before submitting a report on oil and gas development to Congress.⁵⁴ The court held that the report was a "study proposal," which under the CEQ's regulations, required the agency to file a draft LEIS for public comment before submitting a final LEIS with the report to Congress.⁵⁵ Denying the plaintiffs their procedural right to comment on a draft LEIS was sufficient injury to give them standing.⁵⁶

Although colorable arguments based on informational and procedural standing remain available, a potentially more reliable approach to proving the standing of private parties to challenge an agency's failure to perform an LEIS is for affected parties to rely on more traditional definitions of injury.⁵⁷ In Realty Income Trust, the D.C. Circuit ruled that a plaintiff could assert environmental injury from increased vehicular and pedestrian traffic caused by the construction of a GSA building even though the plaintiff had an obvious monetary interest in slowing down or stopping the construction of the building.⁵⁸

The plaintiffs in Public Citizen proved their standing under the traditional test, although the narrowing of NEPA standing in Lujan v. National Wildlife Federation⁵⁹ and Foundation on Economic Trends v. Lyng⁶⁰ made success under the traditional test difficult. In Lujan, Justice Scalia's controversial plurality opinion struck down the National Wildlife Federation's standing by rejecting several of the plaintiffs' affidavits as insufficient to show that the affiants' interests were actually affected by a Bureau of Land Management's land withdrawal review program, thus substantially raising the degree of specificity of injury that environmental plaintiffs must show to meet the court's standing requirements.⁶¹ In Lyng, the D.C. Circuit suggested in dicta that the deprivation of information under NEPA is not in itself enough to afford plaintiffs the injury-in-fact necessary to meet standing requirements.

In Public Citizen, the plaintiffs withstood the Lujan and Lyng challenge before the district court for several reasons. Rather than asserting only informational injury, the plaintiffs provided specific examples of how NAFTA will result in substantial changes to existing federal and state environmental statutes that, in turn, will have an impact on the plaintiffs' environment. The court found that NAFTA's potential impact on existing U.S. environmental statutes was demonstrated by a General Agreement on Tariffs and Trade (GATT) decision that the Marine Mammal Protection Act impermissibly restricted Mexican tuna imports in contravention of the GATT.⁶² The plaintiffs successfully focused the court on particular geographic areas where the direct environmental impacts of NAFTA's ratification would be most tangible and submitted numerous affidavits elaborating on the direct environmental impacts NAFTA will have on the plaintiff organizations' members. Although the D.C. Circuit reversed the plaintiffs' district court victory on other grounds, the district court decision illustrates that traditional showings of standing can provide plaintiffs with a private right of action in the LEIS' cases. The D.C. Circuit did not reach standing issues in its Public Citizen opinion.

Justiciability and Mootness

While the standing debate remains in flux, the ability of courts to provide plaintiffs with adequate and effective relief in the LEIS' cases is now well-established. In the late 1970s, the Chamber of Commerce decision reflected the then-prevailing view that once the legislative and executive branches formally commenced political dialogue, any judicial intrusion risked breaching the separation of powers doctrine and potentially infringed on the President's power to present recommendations for legislation to Congress.⁶³ The decision continues to alert potential LEIS plaintiffs to the fact that they cannot prevent Congress from debating and acting on proposed legislation despite the lack of an LEIS.

Similarly, plaintiffs will be denied relief when Congress has already acted on a proposal for legislation that omitted an LEIS. In Realty Income Trust, the GSA completed a final EIS on a GSA building three weeks after congressional committee approval even though the GSA did not submit a legislative EIS to the committee with the building's prospectus. The U.S. Court of Appeals for the District of Columbia held that there was a violation of NEPA, but it refused to remand the case to the district court because an order for injunctive relief would have required "the doing of a vain or useless thing."⁶⁴ Likewise, in 1981, the court asserted that "once the legislature has made its decision to approve or not approve a project, the courts [23 ELR 10658] do not have jurisdiction to review the input provided by the analysis in the LEIS."⁶⁵

In 1977, the D.C. district court, by relying on the court's authority to issue declaratory relief, demonstrated in Atchison that effective relief is possible in the LEIS' litigation. The court noted that under the Declaratory Judgment Act,⁶⁶ a district court may "declare the rights … of any interested party … whether or not further relief is or could be sought."⁶⁷ Since this ruling, plaintiffs in most other LEIS cases have sought the sole remedy of declaratory relief.⁶⁸ Additionally, commentators have suggested that a request for declaratory relief against an agency such as the CEQ or the OMB might succeed if filed either before a proposal is submitted, or after it is submitted but before Congress has begun to consider it.⁶⁹ Declaratory orders have also provided relief when agencies failed to comply with all notice and comment requirements of the traditional EIS process after embarking on an LEIS process that contains both a draft and final EIS. In both Natural Resources Defense Council v. Lujan and Trustees for Alaska v. Hodel, a court issued declaratory orders that an agency was in violation of NEPA and ordered the agencies to correct deficiencies which occurred during the LEIS process.⁷⁰ Although declaratory relief clearly cannot stop Congress from debating or enacting legislation, a declaration that proposed legislation was illegally submitted to Congress could well affect the terms of the debate.

Recommendations

Properly functioning, the LEIS requirement will inform lawmakers of environmental pitfalls that lay ahead, will provide a foundation for substantive environmental debate, and will result in better crafted legislation. Despite the outcome of Public Citizen, several courses of action can and should be pursued to ensure that the LEIS requirement continues to play an active role in our national decisionmaking.

First, environmental advocates must make a habit of asking congressional delegations to request LEISs with proposed legislation.⁷¹ Such requests affirm the basic informational role of NEPA. The LEIS is a procedural requirement developed explicitly to aid congressional decisionmaking. The Public Citizen district court ruled for the plaintiffs because, among other things, the LEIS process was not followed despite congressional requests for documentation of environmental impacts. Environmentalists should not allow Congress to forget its important role in enforcing the LEIS process. Moreover, Congress should make a habit of withholding action on legislation pending submission of an accompanying LEIS, as it recently did when it reportedly refused to debate the opening of the Arctic National Wildlife Refuge to oil exploration until the completion of an LEIS.⁷²

Second, the OMB should require agencies to file the LEIS' documentation during its legislative clearing process. While its legislative clearing procedures include the requirement of environmental documentation "to the maximum extent possible," the OMB should formalize this requirement to mean the filing of the LEISs.⁷³ The OMB is in a unique position to oversee the LEIS' compliance with finalized legislation.

Finally, the environmental community must make a regular habit of challengingagency legislative proposals that omit LEISs. Public Citizen does not prevent private parties from seeking declaratory judgments. Such actions place further public scrutiny on the development of pending legislation and serve to direct agency efforts toward compliance with NEPA. Active outside enforcement of these requirements can only serve to revitalize this long overlooked provision of law.

1. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 003-014.

2. 42U.S.C. § 4332(2)(C), ELR STAT. NEPA 003.

3. See, e.g., Nicolas C. Yost & James W. Rubin, Administrative Implementation of and Judicial Review Under the National Environmental Policy Act, in LAW OF ENVIRONMENTAL PROTECTION (Clark Boardman Co., 1987), and Dinah Baer, NEPA at 19: A Primer on an 'Old' Law with Solutions to New Problems, 19 ELR 10060 (Feb. 1989).

4. Public Citizen v. Office of the U.S. Trade Representative, 822 F. Supp. 21, 23 ELR 21130 (D.D.C. June 30, 1993, amended July 11, 1993), rev'd, No. 93-5212 (D.C. Cir. Sept. 24, 1993). The briefs in the Public Citizen appeal are digested at 23 ELR PEND. LIT. 66283, in the materials accompanying this issue.

5. 56 Fed. Reg. 32454-55 (July 16, 1991).

6. 19 U.S.C. §§ 2101-2487.

7. 19 U.S.C. § 2171(c).

8. See 19 U.S.C. §§ 2191-94, 2902-03. Fast track authority permits the executive branch to negotiate agreements with foreign governments while limiting congressional involvement to a vote on the resultant agreement without amendments. A request by the President for fast track authority places an affirmative duty on Congress to deny such. After much debate, Congress failed to pass a resolution to deny fast track authority for negotiation of NAFTA. See 137 CONG. REC. S6765-829 (daily ed. May 24, 1991). Fast track authority is available pursuant to the Trade Act of 1974, 19 U.S.C. §§ 2107-2487 (1988) and subsequent amendments.

9. 19 U.S.C. § 2903(a)(1)(B).

10. 19 U.S.C. § 2903(a)(1).

11. 19 U.S.C. § 2191.

12. Bonior Sheds Partisanship on Trade Deal, USA TODAY, Sept. 17, 1993, at 4A.

13. Public Citizen v. Office of the U.S. Trade Representative, 782 F. Supp. 139 (D.D.C. 1992).

14. Id.

15. Public Citizen v. Office of U.S. Trade Representative, 822 F. Supp. at 24, 23 ELR at 21131.

16. Id. at 29, 23 ELR at 21134.

17. Id. at 30, 23 ELR at 21134.

18. Public Citizen v. Office of the U.S. Trade Representative, No. 93-5212 (D.C. Cir. Sept. 24, 1993).

19. Interim Guidelines for NEPA Compliance, 35 Fed. Reg. 7391 (May 12, 1970).

20. House of Representatives, Subcomm. on Fisheries and Wildlife Conservation of the Comm. on Merchant Marine and Fisheries, Administration of the National Environmental Policy Act (Dec. 7, 1970) (remarks of Hon. John Dingell).

21. House Comm. on Merchant Marine and Fisheries, administration of the National Environmental Policy Act of 1969, Pub. L. No. 91-190, H. R. Rep. No. 92-316, 92d Cong., 1st Sess. 15, 17, 23, 26 (1971).

22. General Accounting Office, Report to the Subcomm. on Fisheries and Wildlife Conservation, Comm. 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, p. 51.

23. Joint Hearing on the Operation of the National Environmental Policy Act of 1969: Hearing Before the Senate Comm. on Public Works and the Senate Comm. on Interior and Insular Affairs, S. Doc. No. H32, 92d Cong., 2d Sess. 417 (1972) (remarks of Roger Cramton, Chairman, Administrative Conference).

24. Baer, supra n.3, at 10068.

25. See Realty Income Trust v. Eckerd, 564 F.2d 447, 451 n.7, 7 ELR 20541, 20542 (D.C. Cir. 1977) noting Rule 13 of the Senate Public Works Committee, which states:

No project or legislation proposed by the Administration shall be approved or other action taken on such project or legislation unless the Committee has received an environmental impact statement relative to it, in accordance with section 102(2)(c) of the National Environmental Policy Act of 1970, and written comments of the Administrator of the Environmental Protection Agency, in accordance with section 309 of the Clean Air Act.

26. OMB Circular No. A-19, Legislative Coordination and Clearance, revised, Sept. 20, 1979, Section 7(h)(2) requires accompaniment of documentation relating to environmental impacts during the agency's legislative clearing process.

27. Sierra Club v. Morton, 395 F. Supp. 1187, 5 ELR 20383 (D.D.C. 1975), rev'd sub nom. Sierra Club v. Andrus, 581 F.2d 895, 8 ELR 20490 (D.C. Cir. 1978), rev'd sub nom. Andrus v. Sierra Club, 442 U.S. 347, 9 ELR 20390 (1979). See also Environmental Defense Fund v. Tennessee Valley Auth., 339 F. Supp. 806, 2 ELR 20044 (E.D. Tenn.), aff'd, 468 F.2d 1164, 2 ELR 20726 (6th Cir. 1972); Environmental Defense Fund v. Froehlke, 348 F. Supp. 338, 2 ELR 20620 (W.D. Mo. 1972).

28. Realty Income Trust, 564 F.2d 447, 7 ELR 20541.

29. Id. at 457, 7 ELR at 20544.

30. Aluli v. Brown, 437 F. Supp 602, 7 ELR 20780 (D.H.I. 1977), rev'd, 602 F.2d 876, 9 ELR 20597 (9th Cir. 1979).

31. Council on Environmental Quality, NEPA Terminology, 40 C.F.R. § 1508.17 (1987). Initially, the CEQ issued its regulations implementing NEPA in response to President Carter's Executive Order 11991 (1977). See Andrus v. Sierra Club, 442 U.S. 347, 9 ELR 20390 (1979). The Executive Order directed federal agencies to "comply with the regulations issued by the Council." See id., quoting Executive Order No. 11991. The U.S. Supreme Court has held that the CEQ's regulations are entitled to substantial deference by the courts. Id.; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 19 ELR 20749 (1989).

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

33. Id. at 362, 9 ELR at 20394.

34. Aluli v. Brown, 602 F.2d 876, 9 ELR 20597 (9th Cir. 1979).

35. North Dakota v. Andrus, 483 F. Supp. 255, 10 ELR 20204 (D.N.D. 1980).

36. Indeed, several executive agencies continue to accompany legislative proposals with LEISs on a regular basis. Baer, supra n.3, at 10068. The U.S. Department of Agriculture's Forest Service and the Department of Interior's Bureau of Land Management have filed many LEISs with legislative proposals for actions under the Wild and Scenic Rivers Act and the Wilderness Act.

37. Public Citizen v. Office of the U.S. Trade Representative, 822 F. Supp. at 24-25, 23 ELR at 21131-32.

38. Realty Income Trust v. Eckerd, 564 F.2d 447, 7 ELR 20541; Trustees for Alaska v. Hodel, 806 F.2d 1378, 17 ELR 20323 (9th Cir. 1986).

39. Public Citizen, 822 F. Supp. at 26, 23 ELR at 21133.

40. 1125 S. Ct. 2767 (1992).

41. Public Citizen v. Office of the U.S. Trade Representative, No. 93-5212 (D.C. Cir. Sept. 24, 1993), at 6.

42. The Administrative Procedure Act is the only avenue for citizen enforcement of NEPA.

43. Public Citizen, No. 93-5212 at 7. (Emphasis added.)

44. Id.

45. Most environmental laws allow the President to exempt federal agencies from compliance. See, e.g., RCRA § 5001, 42 U.S.C. § 6961, ELR STAT. RCRA 51. To date, however, no President has ever invoked such authority.

46. See, e.g., Sierra Club v. Morton, 395 F. Supp. 1187, 5 ELR 20383.

47. Wingfield v. Office of Management and Budget, 7 ELR 20362 (D.D.C. 1977).

48. Chamber of Commerce v. Department of Interior, 439 F. Supp. 762, 8 ELR 20054 (D.D.C. 1977).

49. Id. at 766, 8 ELR at 20056.

50. Atchison, Topeka, and Santa Fe Ry. v. Callaway, 431 F. Supp. 722, 7 ELR 20377 (D.D.C. 1977), aff'd in part sub nom. Izaak Walton League of Am. v. Walsh, 665 F.2d 346, 11 ELR 20707 (D.C. Cir. 1981), cert. denied, 454 U.S. 1092 (1981).

51. Id. at 726, 7 ELR at 20379.

52. Id. at 729, 7 ELR at 20380. In fact, the court relies on the sufficiency of "informational interests" to confer standing in Scientists' Inst. for Pub. Info., Inc. v. AEC, 481 F.2d 1079, 3 ELR 20525 (1973).

53. Atchison, 431 F. Supp. at 730, 7 ELR at 20379. The D.C. Circuit, however, in dicta has expressed concerns that informational standing raises "complex and difficult considerations." Foundation on Economic Trends v. Lyng, 943 F.2d 79, 21 ELR 21439 (D.C. Cir. 1991).

54. Trustees for Alaska v. Hodel, 806 F.2d 1378, 17 ELR 20323.

55. See 40 C.F.R. § 1506.8(b)(2)(i-iv). Typically, a legislative EIS, when submitted with a legislative proposal, is considered final. 40 C.F.R. § 1506.8(b) (1987).

56. Trustees for Alaska, 806 F.2d at 1382, 17 ELR 20324.

57. Constitutional standing requires an allegation of personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). The injury need not be physical or economic: injury to aesthetic, conservational or recreational interests is sufficient. Sierra Club v. Morton, 405 U.S. 727, 735, 738, 2 ELR 20192, 20194-95 (1972).

58. Realty Income Trust v. Eckerd, 564 F.2d 447, 7 ELR 20541.

59. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 20 ELR 20962 (1990).

60. Foundation on Economic Trends v. Lyng, 943 F.2d 79, 21 ELR 21439.

61. See James M. McElfish, Drafting Standing Affidavits After Defenders: In the Court's Own Words, 23 ELR 10026 (Jan. 1993).

62. Public Citizen v. Office of the U.S. Trade Representative, 822 F. Supp. at 28, n.8, 23 ELR at 21133 n.8.

63. Chamber of Commerce v. Department of Interior, 439 F. Supp. at 766, 8 ELR at 20056.

64. Realty Income Trust v. Eckerd, 564 F.2d at 458, 7 ELR at 20546.

65. Natural Resources Defense Council v. Lujan, 768 F. Supp. 870, 22 ELR 20473, citing Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 11 ELR 20707 (D.C. Cir. 1981), cert. denied, 454 U.S. 1092 (1981).

66. 28 U.S.C. § 2201 (1988).

67. Atchison, Topeka, and Santa Fe Ry. v. Callaway, 431 F. Supp. 722, 7 ELR 20377.

68. See, e.g., Friends of the Earth v. Weinberger, 562 F. Supp. 265, 13 ELR 20573 (1983). In this case the plaintiffs sought judgment declaring that the defendants had violated NEPA and its implementing regulations, and sought preliminary relief in the form of an order requiring the Secretaries of Defense and Air Force to prepare an environmental impact statement. The case was mooted before the Court could rule on the remedy.

69. FREDERICK ANDERSON, NEPA IN THE COURTS: A LEGAL ANALYSIS OF THE NATIONAL ENVIRONMENTAL POLICY ACT 130 (1973).

70. Natural Resources Defense Council v. Lujan, 768 F. Supp. 870, 22 ELR 20473 (D.D.C. 1991); Trustees for Alaska v. Hodel, 806 F.2d 1378, 17 ELR 20323.

71. If Congress wants an LEIS for a particular bill, it can simply indicate that no action will be taken until an LEIS is forthcoming, as it did for the proposal to allow drilling in the Alaska Wildlife Refuge. See Trustees for Alaska v. Hodel, 806 F.2d 1378, 17 ELR 20323.

72. Billings, NAFTA and the Environment, WASH. POST, July 11, 1993, at C6. See 133 CONG. REC. 2379 (1987) (statement of Rep. DeFazio).

73. OMB Circular No. A-19, Legislative Coordination and Clearance, revised, Sept. 20, 1979, Section 7(h)(2).