EPA's Responsibilities Under the National Environmental Policy Act: Further Developments

A Comment in last month's ELR¹ analyzed the question of NEPA's applicability to "major federal actions" taken by the Environmental Protection Agency, and called on EPA to prepare impact statements, rather than "environmental explanations," for its guidelines, regulations, and standards. On September 20, the House received the conference report on H.R. 8619, authorizing agricultural, environmental, and consumer protection appropriations for the fiscal year ending June 30, 1974.² The report stated that while the House had proposed a $5,000,000 appropriation to EPA to enable the agency to prepare environmental impact statements, the Senate bill provided the same amount to fund "environmental explanations" instead. The conferees agreed on the House version, declaring that "had the Agency prepared environmental impact statements and given consideration to such things as cost to consumers and producers our present and foreseeable energy problems would likely not be as serious as they now appear to be."³

Representative John Dingell, who was floor manager for NEPA in the House four years ago and has remained a strong supporter of the law, applauded the conferees' decision.⁴ At the same time, he released an opinion which hehad requested from the Comptroller General, head of the General Accounting Office, on the question of NEPA's applicability to EPA under present law.

The Comptroller General's opinion traced the legislative history of NEPA and the several court decisions which have considered the problem, concluding that:

NEPA requires, with respect to major Federal actions significantly affecting the quality of the human environment, that "all agencies of the Federal Government" shall prepare environmental impact statements. EPA is, of course, a federal agency and absent strong indication in the legislative history to the contrary, it would appear that EPA would be subject to NEPA's requirements…. It appears to us that there is nothing in NEPA's legislative history which would require countermanding the conclusion derived from the plain words of the Act that all Federal agencies, including EPA, are required, in the appropriate circumstances, to file environmental impact statements….⁵

Representative Dingell described the attempts which EPA has made over the years to avoid the obligation to prepare impact statements. He noted that he himself had at first thought that EPA "deserved great credit" for voluntarily undertaking to prepare "environmental explanations," but then "realized that EPA's true motives were to try to circumvent NEPA's requirement." Of the possible justifications for exempting EPA, Dingell said, only the argument that Congress intended the agency to move as expeditiously as possible was persuasive. The Congressman observed, however, that EPA only rarely had to meet deadlines so short as to preclude preparation of a full impact statement and that CEQ guidelines allowed abbreviated public review where necessary. "It is clear," Dingell declared, "that the courts are not going to give EPA the blanket exemption… it seeks. EPA, therefore, should stop trying to avoid NEPA's mandate."

1. Comment, Halfway There: EPA's "Environmental Explanations" and the Duty to File Impact Statements, 3 ELR 10139 (Sept. 1973).

2. H. Rept. No. 93-520, 119 Cong. Rec. H8155-62 (Sept. 20, 1973).

3. Id. at H8160.

4. 119 Cong. Rec. H8305-08 (Sept. 25, 1973).

5. Id. at H8307.