CEQ Proposes New Guidelines for NEPA

The Council on Environmental Quality has once again proposed revisions in its guidelines.¹ ELR subscribers were sent Federal Register reprints of the proposed guidelines as an insert with the regular monthly mailing of the April, 1973 issue, to enable them to respond to CEQ within the brief 45-day comment period. Here ELR will simply summarize the major changes and provisions in the guidelines.

By way of background, CEQ published interim guidelines not long after NEPA became law.² From the beginning, CEQ called upon the separate agencies to prepare their own NEPA procedures with the assistance of CEQ staff and with guidance afforded by the Guidelines. ELR's first issue, in fact, carried the NEPA procedures of 20 agencies.³ CEQ's second set of guidelines were published in late April, 1971.⁴ Most agencies responded by revising their internal procedures, albeit slowly,⁵ and released them to the public in some form, although not necessarily through the Federal Register. In a laudable action that went unchallenged, CEQ itself undertook to place in the Federal Register for comment those procedures which some agencies had neglected to publish themselves.⁶ As users of ELR know, ELR has published all available agency procedures since the commencement of NEPA's implementation. A complete listing is contained in the Table of Contents to the Statutory & Administrative Materials tabular section.

An important aspect of the new proposed CEQ Guidelines is the procedure and schedule which they set out for approval of the NEPA implementation procedures of the individual agencies. Citizens' groups and their attorneys will want to take advantage of this opportunity by filing comments with individual agencies, urging them to improve their implementation of NEPA. All agencies are to have published proposed revised procedures in the Federal Register no later than 90 days after CEQ's new guidelines are published in final form. A minimum period of 45 days must be provided for public comment on the agencies' proposed guidelines. The agencies' final procedures must be published within 45 days of the close of the public comment period.

In drafting its guidelines CEQ appears to have lost a major battle with the Office of Management and Budget over the preparation of impact statements on legislative proposals. Preliminary drafts of the CEQ guidelines included a provision that to the maximum extent practicable, no legislation to which § 102 (2) (C) applied was to be forwarded to OMB until a draft impact statement, accompanied by the views of relevant sister agencies, had been filed with CEQ. This provision was stricken, as was a provision which ensured that agency "reports, reconnaissance studies, and feasibility studies that certain specific program or project proposals … required by law to be submitted to the Congress" were accompanied by impact statements.

Legislative impact statements could play a key role in giving Congress insight into environmental problems before it passes environmentally thoughtless legislation. The steadily worsening position of the executive branch with respect to the preparation of legislative impact statements threatens to undermine the fundamental NEPA goal of the earlier possible attention to federally originated environmental impacts.

Highlights of the Proposed Revision of CEQ's NEPA Guidelines

1. Certain provisions somewhat augment public participation in the NEPA impact statement process.

Agencies in updating their NEPA procedures must publish the proposed revisions in the Federal Register and allow for at least 45 days public comment (§ 3 (a)).

"Agency procedures should include an appropriate early notice system for informing the public of the decision to prepare a draft environmental statement on administrative actions as soon as practicable after the decision is made." (§ 7 (a)).

The criteria for holding public hearings on actions subject to the impact statement requirement are augmented (§ 7 (a)).

More guidance is given on making publicly available underlying agency data and studies (§ 8 (b)).

The availability of impact statements for public comment is facilitated (§ 9 (d)).

The time period for public comment on final statements is lengthened from 30 to 45 days (§ 9(f)).

Agencies are required to send copies of their final impact statements to all parties who filed substantative comments (§ 10 (b)).

[3 ELR 10057]

2. Additional stress is placed on preparation of impact statements at an earlier time in agency decision-making processes.

Initial environmental assessments of proposed action should be undertaken concurrently with initial technical and economic studies; draft impact statements should be prepared and circulated for comment in time to accompany the proposal through the existing agency review process (§ 2). "This means that draft statements on administrative actions should be prepared and circulated for comment prior to the first significant point of decision in the agency review process" (§ 7(b)).

3. Emphasis on NEPA's substantive environmental policy as enlarging agency mandates.

NEPA's substantive policies in §§ 101 and 102 (1) of the Act require agencies to consider the results of their environmental assessment of their actions along with the net economic, technical and other benefits involved, and to use all practicable means, consistent with other essential considerations of national policy, to minimize or avoid undesirable consequences for the environment (§ 2). NEPA is a supplement to existing agency authority and a mandate to read agency policies and missions in the light of the Act's environmental objectives (§ 4).

4. Augmented guidance on analysis of secondary environment impacts, including population and growth impacts.

"Such secondary effects, through their impacts on existing community facilities and activities and through inducing new facilities and activities, may often be even more substantial than the primary effects of the original action itself … Agencies should also take care to identify, as appropriate, population and growth characteristics of the affected area and any population and growth assumptions used to justify the project or program or to determine the secondary population and growth impacts resulting from the proposed action and its alternatives" (§ 8 (a)).

5. Requirement that energy conservation impacts be considered.

Significant impacts requiring assessment include energy conservation effects. (Appendix II) Alternatives to be considered include those related to different designs or details of the proposed action that would present different environmental impacts (e.g., alternatives that will significantly conserve energy) (§ 8 (a) (iii)).

6. Impacts to be assessed include impacts on the international environment.

Agencies are required to assess the positive and negative effects of the proposed action as it affects both the national and international environment (§ 8 (a) (ii) (A)).

7. Increased use of program and generic impacts statements.

"In many cases, broad program statements will be desirable, assessing the environmental effects of a number of individual actions in a given geographical area (e.g., coal leases), or environmental impacts that are generic or common to a series of agency actions (e.g., harbor maintenance dredging) or the overall impact of a large-scale program or a chain of contemplated projects (e.g., major lengths of highway as opposed to small segments), or the environmental implications of research activities that have reached a stage of investment or commitment to implementation likely to determine subsequent development or restrict later alternatives" (§ 6 (d)).

8. Amplified guidance on preparation of statements covering multi-agency action.

The options of joint preparation of statements by the agencies involved or designation of a "lead agency" to prepare the statement are provided for. "In either case, the statement should contain an environmental assessment of the full range of Federal actions involved, should reflect the views of all participating agencies, and should be prepared before any major or irreversible actions have been taken by any of the participating agencies." (§ 7 (c)).

9. Agencies requested to prepare either an impact statement or a publicly available record of the agency determination that an impact statement is not required.

"In particular, agencies shall be responsive to requests by the Council for either the preparation and circulation of environmental statements or, in the alternative, if the responsible agency determines that an environmental statement is not required, for an environmental assessment and a publicly available record briefly setting forth the reasons for that determination" (§ 11 (f)). This section appears to recognize a heretofore unasserted power of CEQ to require the preparation of impact statements.

10. The blanket exemption of EPA from NEPA's requirements is dropped.

The former § 5 (d) of the CEQ guidelines, exempting all of EPA's environmental protective regulatory activities from the requirements of § 102(2)(C), has been deleted in recognition of the fact that the new § 511 (c) of the Federal Water Pollution Control Act Amendments of 1972 now specifically addresses this issue, requiring EPA to prepare impact statements in some cases, and exempting EPA from the requirement in other cases. This general matter will be addressed in EPA's ENPA procedures issued pursuant to § 3 (a) of the proposed guidelines.

11. CEQ attempts to exempt general revenue-sharing from the impact statement process (§ 5).

1. 38 Fed. Reg. 10856 (May 2, 1973).

2. 35 Fed. Reg. 7390, 1 ELR 46001 (April 30, 1970).

3. These procedures have since been superseded, but the texts are preserved at 1 ELR 46007 ff.

4. 36 Fed. Reg. 7724, ELR 46049 (April 23, 1971).

5. See Comment, Agencies' Revised NEPA Procedural Compliance Guidelines near Completion, months after deadline for submission to CEQ, 1 ELR 10167 (October, 1971).

6. 36 Fed. Reg. 23665 (December 11, 1971); 37 Fed. Reg. 22667 (October 20, 1972).