Federal Environmental Units in Transition: Articles Assess CEQ and EPA

Less than four years after its creation, the Council on Environmental Quality stands at a crossroads. Several officials have left the Council, including Chairman Russell Train, who has been nominated to head the Environmental Protection Agency. The Office of Management and Budget has stepped up an attack which if successful will strip CEQ of much of its power and responsibility. At the same time, Congress has moved to exempt the Alaskan Pipeline from NEPA, a damaging blow to the statute which is the legal underpinning of the environmental movement and which established CEQ. Clearly, more than the power and prestige of CEQ is at stake; at issue is whether the national commitment to preservation and reclamation of the environment will be strengthened or eroded.

This month's ELR includes two articles which explore the ways in which the two governmental units primarily responsible for protecting the environment, CEQ and EPA, have discharged the NEPA duties assigned to them by Congress.In the first, Richard Liroff, formerly a research fellow at the Brookings Institution, reviews and analyzes the development of CEQ from its inception to the present. In the second, Martin Healy examines EPA's implementation of § 309 of the Clean Air Act, which gives that agency responsibilities for overseeing governmental compliance with NEPA which complement those of CEQ. These timely articles hint at the directions in which governmental efforts for environmental protection may now turn. The current challenge to CEQ may be withstood; on the other hand, a serious curtailment of the Council's functions may portend a marked increase in EPA's responsibilities as environmental ombudsman in general and guardian of NEPA in particular. The CEQ functions which Mr. Liroff describes may well pass in part to EPA. The medium of this transfer, as Mr. Healy suggests, could be § 309.

The Council on Environmental Quality

Mr. Liroff focuses primarily on three CEQ roles: overseeing NEPA, advising the President, and providing information to the public. He suggests that CEQ decided that it could be most effective by cultivating a close relationship [3 ELR 10122] with the White House while maintaining a lowprofile in overseeing agency compliance with NEPA. Mr. Liroff notes that the penalty CEQ paid for its access to White House decision making was the lack of a constituency among the general public to whom the Council could appeal for support on individual issues. In order to win battles behind the scenes, CEQ also had to accept its defeats behind the scenes. The author recognizes exceptions to this, such as the Council's strong public intervention to help preserve the tax-exempt status of public interest law firms. Mr. Liroff observes that the Council's position within the White House is frequently a lonely one, as its environmental viewpoint must compete with those of well-established, mission-oriented agencies whose proposals frequently have far more political appeal than has environmental protection. CEQ, furthermore is dependent for its continued funding on an unsympathetic congressional subcommittee.

Mr. Liroff's analysis of CEQ's role in overseeing NEPA focuses on the guidelines and memoranda which the Council has prepared to assist agencies in preparing impact statements, its efforts to obtain the cooperation of recalcitrant agencies, and its response to instances of agency noncompliance with NEPA. He suggests that in keeping with its low-profile posture, the Council has sometimes had to look on, while environmental litigators obtained court-ordered compliance with the guidelines which CEQ could promulgate, but not enforce. Mr. Liroff reviews four court cases in which environmentalist plaintiffs successfully attacked agencies for their lack of regulations implementing NEPA or for the inadequacy of those regulations which had been promulgated. These decisions, Calvert Cliffs' Coordinating Committee v. AEC, Greene County Planning Board v. FPC, Ely v. Velde, and Davis v. Morton, were a vital supplement to CEQ's efforts. They were in important respects, the direct result of CEQ's authoritative interpretation, reiterated in its guidelines, of NEPA's message: all agencies must prepare impact statements for environmentally hazardous actions; evaluation of environmental impacts must take place at all levels of agency review; and the views of informed persons outside the agency must not only be accepted, but encouraged and facilitated.

EPA's Implementation of § 309 of the Clean Air Act

Mr. Healy, on the other hand, traces the background and legislative history of § 309 of the Clean Air Act, and concludes that Congress intended that the task of overseeing NEPA was to be shared by EPA and CEQ. Congress, he finds, was in general pleased with CEQ's performance, but felt that manpower and budgetary constraints prevented the Council from undertaking the sort of comprehensive review of all agency actions and rule-making that full implementation of NEPA would require. Congress accordingly assigned to EPA the task of commenting publicly on all agency actions likely to have a significant effect on the environment, including newly promulgated regulations and proposals for new legislation. Where EPA's review indicates a proposal is unsatisfactory from an environmental point of view, the agency must refer the problem to the CEQ, which may apply its expertise and influence to the issue.

On the basis of extensive research into EPA's handling of the impact statement review process, Mr. Healy concludes that the agency has not lived up to its obligations under § 309. He observes that EPA has yet to comment on any agency regulations or proposed legislation, that it has commented only on a handful of final environmental impact statements, and that it has never made a formal § 309 referral to CEQ. The author theorizes that the agency may fear that vigorous compliance with § 309 would jeopardize working relationships already established with other agencies. He notes also that EPA may lack the budget to perform this function effectively.

Mr. Healy argues that EPA has no choice under the statute but to fulfill the roles assigned to it, regardless of whether the agency believes its present methods of securing compliance with NEPA to be preferable. The author contends that the congressional purpose of ensuring complementary functions for EPA and CEQ was sound, because it offers the greatest certainty that environmentally harmful activities will be detected, analyzed, prevented or mitigated. He suggests further that a citizens's suit, authorized under § 304 of the Clean Air Act, might be a necessary last resort to secure EPA's compliance with § 309 of the act.

The Future of NEPA

The departure of much of CEQ's top echelon and OMB's proposal for diminished funding and duties suggests that the Council's days of greatest effectiveness may be ending. The government's seeming absorption in the protracted Watergate crisis suggests that to rely too heavily on the personal rapport between a few individuals and the President, where the nation's commitment to defend and improve its environment is at stake, may be unwise. The summer of 1973 has seen the pendulum swing back toward the legislative branch, after years of unparalleled primacy for the executive branch. The truth may well be that EPA is in fact, as Chairman Train puts it, "where the action is" in the field of environmental protection, as an agency better able to respond directly and openly to expressions of congressional and popular wishes, and with its functions more clearly delineated by statute than are CEQ's.

The commendable new guidelines which CEQ has just issued provide a solid foundation for agency implementation of NEPA for some time to come. The previous set of guidelines were in effect for more than two years before revisions were proposed; with the improvements that have been made in the latest set of guidelines, more than that length of time may well elapse before further changes are necessary. However, the important task of overseeing the regulations which agencies develop in response to the [3 ELR 10123] revised guidelines has not yet begun.

If EPA is in fact to occupy the limelight for the foreseeable future, it is strongly to be hoped that the agency will undertake a vigorous role as ombudsman for the enforcement of NEPA. Chairman Train's steadfast support for NEPA over the past four years gives environmentalists encouragement in this regard. As Mr. Healy's article points out, EPA has § 309 of the Clean Air Act at its disposal as the instrumentality of a strong leadership role in securing compliance with NEPA. At the same time, the new CEQ guidelines bolster EPA's position by removing the blanket exemption from the impact statement requirement, so that EPA could abandon its current self-contradictory approach to NEPA's implementation by itself preparing impact statements on its own actions. Instead of being in the position of urging other agencies to do as it says rather than as it does, EPA could set an example for the rest of the government in the quality of the impact statements it prepares on its own proposed actions.

The Council on Environmental Quality, as Mr. Liroff's article demonstrates, has in its four years achieved some notable gains for the cause of environmental protection. The national preoccupation with Watergate and related matters should not allow the threatened emasculation of CEQ to go unnoticed and unchallenged by the public. On the contrary, the Council should be strengthened, and Congress's intent that CEQ and EPA should work together as a team should be fulfilled. But continuation of the national commitment to the goal of having all governmental actions conform to the interests of environmental preservation, as expressed in NEPA, is still more important. If CEQ emerges unscathed from its impending crisis, environmentalists will look to it and to EPA for the achievement at last of the complementary roles envisioned by Congress. If, on the other hand, CEQ is markedly reduced in stature, the responsibility of preserving NEPA and the national purpose it represents will fall all the more strongly on the Environmental Protection Agency and its new Administrator.