Halfway There: EPA's "Environmental Explanations" and the Duty to File Impact Statements.

Starting January 1, 1974, the Environmental Protection Agency will issue "environmental explanations" written in laymen's terms for proposed new standards, regulations, and guidelines of national application.¹ The new policy, a response to what EPA called the "growing demand by the judiciary and the public" for full disclosure of the reasons for governmental decisions, would apply to national standards of environmental quality and to emission, effluent, and performance standards. The public should know the environmental effects of major standard-setting actions, the agency declared, and receive the information necessary for intelligent comment on proposed standards.

Except where a statutory deadline or a compelling need to abate pollution necessitates a delay in its preparation, an explanation will accompany proposed standards when they are first published in the Federal Register. The agency will undertake to describe in detail the major environmental effects of the proposed action; non-environmental factors affecting the decision, such as legal, technical, social, and economic considerations; alternative possibilities open to the agency; and the reasons for selecting a particular course of action. When a final standard, regulation, or guideline differs from the original proposal, a supplemental explanation will be published, indicating the reasons for the revisions.

The new procedures, and in particular the provision that the explanations are to be written in plain English, drew praise in the editorial columns of the Washington Post as a welcome departure from usual bureaucratic practice. To other observers, EPA's action was a disappointing half measure, as it clearly reaffirmed the agency's position that it is exempt from the requirement of filing the full-fledged environmental impact statements, reviewable in the courts, which the National Environmental Policy Act mandates for "all agencies of the Federal Government."

The courts have been wrestling for several years with the thorny question of NEPA's applicability to EPA — whether the agency is exempt from the Act's impact statement requirement, and if so, whether the exemption is limited or absolute — without arriving at a resolution of the issue. Although five courts of appeals have ruled, [3 ELR 10140] sometimes in sweeping language, that NEPA is inapplicable to certain actions of the Administrator, the appearance of consensus is deceptive. While the issue has seemed simple to courts which gave it cursory consideration, those which examined the problem in depth were circumspect with regard both to interpreting the obscure legislative history² and to judging the policy questions involved.

The question of EPA's responsibilities under NEPA was considered tangentially in Kalur v. Resor,³ in which the Corps of Engineers was held to have a duty to file an impact statement before granting a permit to dump "refuse", within the meaning of the Rivers and Harbors Act of 1899, into a navigable waterway. The Corps had in that case delegated all decision-making authority to EPA, but this defense was unavailing. Largely as a result of this decision, the Federal Water Pollution Control Act Amendments of 1972, enacted shortly thereafter, transferred authority over permits to EPA and specified that the agency was not required to file impact statements on its permits. On appeal to the D.C. Circuit, Kalur was dismissed for mootness under the new legislation and is without precedential value.

In Getty Oil v. Ruckelshaus,⁴ the Third Circuit rejected the plaintiff's argument that the Administrator's approval of a state implementation plan under the Clean Air Act was void for failure to file an impact statement. The court held that the objection should have been raised at the time the plan was under consideration, and not, as the plaintiffs argued, in an enforcement proceeding. It noted, however, that it found the authority for Getty's contention unpersuasive.

In February, 1973, the D.C. Circuit decided Intemational Harvester v. Ruckelshaus, in which plaintiffs challenged EPA's refusal to grant a one-year suspension of 1975 auto emission standards. Among numerous grounds advanced by the automakers was the Administrator's failure to prepare an impact statement on his action denying the suspension. The case was remanded on other grounds, but the court discussed the issue in a footnote:

NEPA should be subject to a "construction of reasonableness." Although we do not reach the question of whether EPA is automatically and completely exempt from NEPA, we see little need in requiring a NEPA statement from an agency whose raison d'etre is the protection of the environment and whose decision in suspension is necessarily infused with the environmental considerations so pertinent to Congress in designing the statutory framework. To require a "statement," in addition to a decision setting forth the same considerations, would be a legalism carried to the extreme.⁵

[3 ELR 10141]

It should be noted that the Clean Air Act required a written decision by the Administrator on applications for suspension of the emission standards, so that it was difficult to argue that a full airing of the environmental issues would not occur. Moreover, the plaintiffs were attempting to utilize NEPA's impact statement requirement to hoist the environmentalists on their own petard, a fact situation no doubt conducive to a narrow view of the statute's reach.

A challenge to the Administrator's approval of a state implementation plan was again rejected in April, 1973, when the Fourth Circuit Court of Appeals ruled in Appalachian Power v. EPA that:

While NEPA applies to "all agencies of the Federal Government" and requires an impact statement for every major federal action "significantly affecting the quality of the human environment," it is inapplicable to the action of the Administrator in seeking, through the approval of state implementation plans, to improve "the quality of the human environment." As the Court said in Getty Oil Co. v. Ruckelshaus [citation omitted]. "It is apparent that the Clean Air Act itself contains sufficient provisions for the achievement of those goals sought to be obtained by NEPA."⁶

Two months later, the Third Circuit ruled in Duquesne Light Co. v. EPA that the Administrator was not required to file an impact statement on his approval of Pennsylvania's Clean Air Act implementation plans:

Presented with the square holding of the Fourth Circuit [Appalachian Power], and the logically appealing pronouncements of this Court [Getty Oil], the District of Columbia Circuit in Delaware [Getty Oil], we hold that, in approving the state implementation plans, the Administrator is not required to meet the impact statement requirements of the NEPA — certainly in the context of this case.⁷

On June 28, 1973, the Sixth Circuit reached a similar result in Buckeye Power v. EPA, in which still more expansive language was used:

Acceptance of this argument would mean that an agency whose sole purpose is improvement of the environment would have to file an Environmental Impact Statement with itself …. We are in accord with the Third, Fourth, and D.C. Circuit holdings that such action on the part of the Administrator is unnecessary.⁸

This was, of course, a misstatement with regard to the D.C. Circuit, which issued no "holding" on the issue, and was somewhat misleading as to the breadth of the holdings of the other two courts.

The next day, the D.C. Circuit issued its decision in Portland Cement v. Ruckelshaus, a case involving a challenge to the Administrator's promulgation by rulemaking procedures of new stationary source performance standards under § 111 of the Clean Air Act. The court ruled that because this section requires the Administrator to accompany proposed standards with a statement of reasons subject to court review in which environmental and economic costs are analyzed and balanced, "the functional equivalent of a NEPA impact statement" is already mandated, and a NEPA statement need not be prepared.⁹ The court, while refraining from deciding whether under the Clean Air Act, EPA enjoyed any broader exemption from NEPA, nevertheless anayzed the legislative history and policy considerations in great detail. It found three principal arguments in favor of a blanket exemption for the agency: (1) NEPA is only a first step in protecting the environment, while EPA is a specialized agency designed to provide extra protection for certain aspects of the environment; (2) EPA cannot work as expeditiously as might be desirable if it must comply with the NEPA impact statement requirements; (3) as impact statement requirement would be exploited by the opponents of environmental protection to delay or obstruct needed actions. On the other side, the court resurrected the age-old poroblem of "who shall police the police" and quoted Senator Jackson's apprehensions that EPA might become a captive of the industries it regulates. It noted also that opponents of exemption had pointed out that in its concern for one endangered resource, EPA might neglect another resource, permitting for example, excessive water pollution in order to lessen air pollution. Lastly, the court mentioned the argument that impact statement procedures allow other agencies to contribute their expertise and the public to scrutinize governmental decision-making. In conclusion, the court observed that the rule-making procedure by which the Administrator promulgated new standards under § 111 was perhaps an ideal compromise, as it ensured a full statement of reasons and provided for judicial review without the administrative burden and the delays inherent in the process of preparing and circulating impact statements.

In a footnote, the court considered the significance of CEQ's interpretation of EPA's responsibilities under NEPA. In guidelines issued in 1971, the Council on the basis of the legislative history construed the statute to confer a blanket exemption on the agency, although in its 1973 guidelines this contention was retracted. The court observed that while in construing statutes involving complicated technical matters, it was frequently appropriate to defer to agency expertise, there was no reason to think CEQ more qualified than the judiciary to analyze the legislative [3 ELR 10142] history of NEPA. The court did not, however, decide the question of the scope of CEQ's authority to interpret the statute.

In August, 1973, the Tenth Circuit reversed the lower court ruling Anaconda v.Ruckelshaus, that had enjoined the Administrator from promulgating proposed limitations on sulfur oxide emissions pending an adjudicatory hearing and the filing of an environmental impact statement.¹⁰ Finding that the district court lacked jurisdiction, the circuit court remanded the case with instructions to dismiss the action and therefore did not decide on the merits the issue of NEPA's applicability to EPA. It observed, however, that the contention was in its view "lacking in merit and substance," unsupported by the legislative history as developed in Portland Cement, and capable only of frustrating the acommplishment of NEPA's aims.

Unless new legislation clarifies EPA's responsibilities under NEPA, the issue of the blanket exemption appears capable of resolution only on policy grounds, as the legislative history is too ambiguous to allow a decision on that basis. As the D.C. Circuit Court of Appeals observed in its analysis of the problem in Portland Cement, strong policy arguments can be made both for and against granting EPA such an exemption. Although the short-term case for exempting EPA is strong, consideration of long range effects tends strongly to support the conclusion that NEPA's goals can better be fulfilled by applying the statute's requirement of impact statement preparation to "all agencies," including EPA.

Legal tools designed to assist in protecting the environment of course should not be used to delay enforcement of environmentally protective measures, but as the D.C. Circuit observed in Calvert Cliffs' Coordinating Committee v. AEC, "administrative difficulty, delay, or economic cost will not suffice to strip the section [102] of its fundamental importance."¹¹ It is undesirable also that EPA should be forced to expend precious resources on the bureaucratic chore of preparing impact statements on routine matters. Nonetheless, as Senator Jackson observed in the debate on the FWPCA, EPA may not always be the "good guy." The agency is susceptible to intense political pressure on such matters as auto emission standards and, in a time of real or contrived fuel shortages, allowable emission levels from coal-fired plants. At any point, the exemption which has so far been applied to insulate environmentally protective measures from attack by industry may become a shield for wholesale backtracking on the part of EPA and the Administration. Even with the best of intentions, the agency, like many before it, may fall prey as it gets older to "tunnel vision," against which the necessity of preparing impact statements and analyzing alternatives might be a highly desirable preventive measure.

It is anomalous, moreover, for an agency charged with supervising enforcement of the nation's most fundamental environmental statute to enjoy an exemption from that act's provisions.¹² To be sure, preparation of impact statements is burdensome and creates delays, but these arguments are equally applicable to the Corps of Engineers, the Department of Agriculture, and other agencies eager to avoid delays in their programs.

To insist that other agencies "do as we say, not as we do" places EPA in a dubious position from which to exercise leadership. The agency should instead be providing the other agencies of the government with a good example, both by the accuracy and thoroughness of its impact statements and by its willingness to fulfill the mandate of NEPA.

Compliance with NEPA's requirements would not necessarily mean delays of essential action. The Clean Air Act, for example, has as one of its major purposes rapid action to remedy air pollution problems. Where the short time limits specified for the EPA Administrator by that act come into conflict with the more protracted commenting procedures mandated by NEPA, the more recent Clean Air Act should, as the courts of appeals have consistently held, control.

Furthermore, acceptance by EPA of the responsibility to prepare impact statements need not, and should not, swamp the agency in paperwork. NEPA applies, after all, only to "major" federal actions. By adopting a policy of preparing detailed impact statements on its major policy decisions, the agency could then issue only brief impact statements on individual actions taken pursuant to those policies. The enunciation of clear, well-reasoned standards might well contribute to more expeditious handling of this aspect of the agency's duties.

Lastly, it must be remembered that NEPA began with a very simple premise: that the best guarantee that an agency will make sound decisions is to compel it to set out in writing, subject to court review, the reasons for its actions. It is arguable that it is even more ssential to apply this requirement to an environmental agency than to "line agencies," as the consequences of the former's actions. It is arguable that it is even more essential to apply charged with the responsibility of protecting the environment is all too likely to come to believe in time that its own decisions are per se environmentally beneficial and in need of no scrutiny from outside the agency.

[3 ELR 10143]

In its young life, EPA has been in general an aggressive and effective advocate of environmental concerns. For environmentalists, it is therefore understandably difficult to advocate burdening EPA with an obligation which could conceivably lead to dilatory lawsuits, drawing manpower from more constructive uses. It is painful also to make "contingency plans" for a possible retreat by the agency from its earlier posture. Nevertheless, acceptance by EPA of the responsibility to prepare impact statements appears dictated both by pragmatism, to "keep them honest," and by principle, so that "all agencies" — not "all agencies except those which aim at preserving the environment" — comply with NEPA's directives.

1. 38 Fed. Reg. 15653 (June 14, 1973).

2. At the time NEPA was passed, EPA had not yet been created, and the government's environmental protection activities were dispersed among various agencies. The legislative history of NEPA is therefore of little use in seeking a direct answer to the question of the Statute's applicability to EPA, and it is ambiguous with regard to the bodies, such as the Federal Water Quality Administration of the Department of the Interior and the National Air Pollution Control Administration of the Department of Health, Education and Welfare, which were later consolidated into EPA. Neither the language of the act nor the committee reports contained an express exemption for these bodies, although Senator Henry Jackson, sponsor of the bill, introduced into the Congressional Record a document, entitled "Major Changes in S. 1075 [NEPA] as passed by the Senate," which stated that § 102 was "not designed to result in change in the manner in which [environmental agencies] carry out their environmental protection authority … The provision is, however, clearly designed to assure consideration of environmental matters by all agencies in their planning and decision making-especially those agencies who now have little or no legislative authority to take environmental considerations into account." This language of this passage is seemingly equally suggestive of two interpretations: one, that environmental agencies are exempt, and two, that while not exempt, these agencies are already accustomed to give great weight to environmental considerations and will therefore find their operations little affected by the new requirement. In debate on the Senate floor, however, Senator Muskie, also a major proponent of the bill, stated that this language derived from his discussions with Senator Jackson and reflected their clear understanding that "the [environmental] agencies … will continue to operate under their legislative mandates as previously established, and … those legislative mandates are not changed in any way by section 102-5." Another key NEPA supporter, Senator Allott, cautioned that while the Muskie-Jackson explanations were "useful", they had not been agreed upon by the other members of the Senate conference committee, and could not be considered binding.

In House action on the bill, Representative Dingell, submitting the Conference Report, introduced into the record a very similar colloquy between himself and Representative Fallon, in which he explained that no changes were intended in procedures for environmental agencies.

Further guidance, and further confusion, is provided by the legislative history of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), enacted after EPA's creation, in which Congress specified that the NEPA impact statement requirement was to apply only to EPA's actions in making grants for the construction of publicly owned waste treatment works and in issuing new source permits. In debate on the bill, Senator Muskie, citing his earlier remarks on his conversations with Senator Jackson, took the position that the FWPCA was creating affirmative impact statement responsibilities in place of the previous blanket exemption; Senators Nelson and Buckley, on the other hand, viewed the bill as creating very narrow exemptions for EPA where none had existed before. Senator Muskie maintained strenuously that Congress' intent would be frustrated if the general reforms of NEPA were permitted to "override, supersede, broaden, or affect in any way" the more specific terms of the FWPCA. Senator Jackson was less sure by this time, observing that "it cannot be assumed that EPA will always be the good guy …Since EPA was formed, they have done an admirable job … [but] it cannot be forgotten that EPA is a regulatory agency and in the past in Washington almost all regulatory agencies have eventually come under the control of those that they are charged with regulating." The legislative history is discussed in detail in Portland Cement Assn. v. Ruckelshaus, 3 ELR 20642, at 20644.

3. Kalur v. Resor, 1 ELR 20637 (D.D.C. Dec. 21, 1971).

4. Getty Oil v. Ruckelshaus, 2 ELR 20683 (3rd Cir. Sept. 12, 1972).

5. International Harvester v. Ruckelshaus, 3 ELR 20133, 20149 (D.C. Cir. Feb. 10, 1973).

6. Appalachian Power v. EPA, 3 ELR 20130, 20135 (4th Cir. Apr. 11, 1973).

7. Duquesne Light Co. v. EPA, 3 ELR 20483, 20487 (3rd Cir. June 5, 1973).

8. Buckeye Power v. EPA, 3 ELR 20634, 20639 (6th Cir. June 28, 1973).

9. The decision was reaffirmed by another panel of the D.C. Circuit in Essex Chemical v. Ruckelshaus, 3 ELR 20732 (D.C. Cir. Sept. 10, 1973), which also refrained from "any broader determination of an EPA exemption."

10. Anaconda v. Ruckelshaus, 3 ELR 20719 (10th Cir. Aug. 1973).

11. Calvert Cliffs' Coordinating Committee v. AEC, 1 ELR 20346, 20349 (D.C. Cir. 1971). This phrase has been relied upon by several courts in ruling that NEPA does not permit "substantial compliance," but requires instead a strict standard of compliance. See F. Anderson, NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act 51-54 (1973). EPA's "environmental explanations," however, constitute just such an attempt at substantial compliance.

12. See Healy, The Environmental Protection Agency's Duty to Oversee NEPA: Section 309 of the Clean Air Act, 3 ELR 50071 (Aug. 1973).