The proliferating field of environmental law presents a timely example of the always fascinating interplay of law and fact, of science and jurisprudence. It also tests the vitality of many traditional notions of the functions of courts in a republic, the relative distribution of power among appointed judges, the people's elected representatives in Congress, and administrative officials who in most instances are neither elected nor directly chosen by anyone who has been elected. In particular, what is the role of the courts in protecting "the environment," that nebulous concept that seems at times to be all things to all men, and that bids fair to encompass the whole world? Do judges appointed for life and deliberately removed from popular correction have any role to play in this respect, or are the hard social and economic questions to be addressed solely by the Congress and its delegates? An approach to answering these questions should illuminate not only the conjunction of law and science, but also the usefulness of non-elected officials in helping a democratic society choose and reach its goals.¹ In this article I shall venture to suggest some answers, using as a framework the varying attitudes of the courts towards the enforcement of our nation's most widely applicable expression of environmental policy, the National Environmental Policy Act,² which became law on January 1, 1970. The statute declares policy in broad terms and imposes procedural requirements on federal agencies in rather specific terms. It is my purpose in this article to determine whether courts, having once ensured that the procedures commanded by Congress have been scrupulously observed, have any further duty to perform. In other words, does NEPA create any substantive rights enforceable in the courts?

The inquiry must begin with the words of the statute. As already noted, NEPA basically does two things: it declares national policy, and it imposes certain enumerated procedures.³ The statute is not a model of brevity, but the pertinent sections must be set out in extenso. Section 2, 42 U.S.C. § 4321, reads:

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

Section 101 of NEPA, 42 U.S.C. § 4331, further particularizes national policy:

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, [3 ELR 50029] wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

And § 102, 42 U.S.C. § 4332, imposes, in traditionally mandatory language, nine specific procedural requirements on "all agencies of the Federal Government":

§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall —

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) 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 —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;

(D) study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of markind's would environment;

(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(H) assist the Council on Environmental Quality established by subchapter II of this chapter.

To pose the issue to which this article is addressed in more specific terms, do courts have power, once an agency has carried out all the specific procedural requirements of § 102, to enforce the substantive declarations of §§ 2 and 101 by reviewing agency action and setting it aside if it violates the latter two provisions or some other relevant declaration of environmental policy? If courts do have such power, what is its source, and what is its worth in a democracy?

Presumably Congress intended to accomplish something by writing § 101 into positive law. It is always possible, of course, that the statute (or any statute) is a political compromise, designed to sound reassuring but actually to produce nothing concrete.⁴ Such a conclusion — that an enactment passed by Congress and signed by the President is brutum fulmen — should be reached only as a last resort, however. A close inspection of the words of § 101 reveals that the conclusion not only need not, but may not, be reached. Section 101(a), for example, declares [3 ELR 50030] that "it is the continuing policy of the Federal Government … to use all practicable means and measures … to create and maintain conditions under which man and nature can exist in productive harmony …" The same paragraph also notes "the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man…." These words, especially the word "critical," indicate that the statute is more than precatory. The also indicate dissatisfaction with the status quo, and, as a necessary corollary, a desire that it be changed. One would not speak of "restoring … environmental quality," or creat[ing] and maintain[ing] conditions under which man and nature can exist in productive harmony," if one thought that that quality, or those conditions, were already in existence. "[E]nvironmental quality," rather, is viewed by Congress as a condition that once existed, that does not now exist — no doubt as a result of "population growth, high-density urbaization," and the other baneful influences catalogued in the same paragraph of the statute —, and that must be "restor[ed]." The language implies a national desire to return to an earlier and better day when "environmental quality" existed, and then to "maintain" that quality. No particular agency is told in § 101(a) to take any specific action. But the absence of specificity serves rather to emphasize, than to weaken, the congressional command. No agency is named because Congress did not wish its concern limited to any particular agency or program. It was, instead, pronouncing "the continuing policy of the [whole] Federal Government…."

Section 101(b) is more specific. It sets forth six enumerated national environmental goals, including the preservation of "important historic, cultural, and natural aspects of our national heritage" and the maintenance, "wherever possible," of "an environment which supports diversity and variety of individual choice…." This paragraph states that "all practicable means, consistent with other essential considerations of national policy," must be used "to improve and coordinate Federal … programs" in order to reach the six listed ends. Again, the choice of words cannot be treated as casual or accidental. The word "essential," for example, is used with two separate effects. First, because it is preceded by the word "other," it tells us that "the policy set out in this chapter," that is, in NEPA which is codified as Chapter 55 of Title 42 of the United States Code, is an "essential" policy, that is, a policy that is not merely desirable or important, but occupies the highest rank in the hierarchy of governmental priorities. The same word also intimates that some other, nonenvironmental policies of the United States are also "essential," that is, of equal dignity to the policy of NEPA, and that the latter policy should be achieved in a manner "consistent" with these "other essential considerations…." The clear implication is that there are other national policies that are desirable or important, but not "essential"; that the policy of NEPA may not override other "essential" policies; but that the policy of NEPA shall prevail, in the event of inconsistency, as against other national policies not important enough to be characterized as "essential." The word "improve," also, carries a rich burden of meaning. It carries forward the thought begun by the words "restoring" and "create" in § 101(a). One speaks of improving that with which one is not pleased or satisfied. What is already in accord with the will of Congress has no need of improvement. It follows, therefore, that "Federal plans, functions, programs, and resources" were not, as of January 1, 1970, being administered and interpreted in accordance with the environmental policies that Congress believed "essential" and therefore proclaimed in NEPA. It was time for a change, Congress said, and NEPA was passed to effect that change.

Section 101(c) adds: "each person has a responsibility to contribute to the preservation and enhancement of the environment." The category "each person" presumably includes officers and employees of the United States, and the use of the word "responsibility" indicates, again, that something more than a request is involved. Exactly what "each person has a responsibility to do" is admittedly not so clear as it might be: "preservation … of the environment" is plain enough, but the term "enhancement … of the environment" may mean (not uniquely, of course, in the case of statutory language) quite different things to different persons and in different contexts. It is safe to opine, however, that "enhancement" as used in § 101(c) probably refers not to development by works of man, but to restoration to a semblance of that pristine state towards which § 101(a) appears to look. In any case, it is clear from § 101(c), as from §§ 101(a) and (b), that things as they are are not good enough. Some change in federal policy and individual action is required.

Section 102(1) completes this textual analysis. Although it is part of the procedural portion of the statute, it is much more sweeping than the specifics of §§ 102(e) (A)(H). The language is mandatory: "The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies" of NEPA. Congress knew that NEPA was not being written on a clean slate, and that substantial and difficult problems of harmonizing it with pre-existing law on environmental and other subjects would arise. Section 102(1) appears to say that NEPA shall be the guide to all agencies in interpreting their existing policies and governing statutes — a sort of rule of construction that any doubt in the application of those policies and statutes must be resolved in favor of NEPA. Section 102(1) incorporates by reference not only the specifics of § 102(2), but also the more general substantive declarations of § 101. The sole qualification in § 102(1) is the phrase "to the fullest extent possible," and these words [3 ELR 50031] have been almost uniformly held to emphasize, rather than reduce, the obligations of § 102.⁵ As the Guidelines on Environmental Quality put it,

The phrase "to the fullest extent possible" … is meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible.⁶

To be sure, the formulations of § 101, even as reinforced by the mandatory tone of § 102(1), are hardly absolute. By contrast to the procedural duties listed in § 102, which are to be followed "to the fullest extent possible," the § 101 substantive policies are to be pursued only by "all practicable means and measures."⁷ Congress obviously intended to leave considerable latitude to the various agencies in reconciling § 101 "with other essential considerations of national policy," while the procedural duties of § 102 "are not inherently flexible."⁸ To say, however, that the application of § 101 to every concrete situation is not at once clear from the words themselves, and that its terms leave a substantial area of choice to those to whom its commands are addressed, is to say only what may be said of every statute. It is true that § 101 does not do everything for the environment. It is a far cry from that truism to the conclusion that it does nothing, or at least nothing for which a judicial remedy exists.

The conclusion that § 101 creates real legal obligations is reinforced by other portions of the statute. Section 105⁹ tells us that [t]he policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of Federal agencies." This provision is evidence that the "policies and goals" of § 101 — for that is, preeminently, the portion of the statute that deals with "policies and goals" — were intended to be something more than pious declarations, to cause agencies to do something "supplementary," that is, over and above and in addition to what they had already been doing under their "existing authorizations." NEPA, in other words, was to be an addition to every federal agency's existing responsibilities. Each agency was henceforth to consider not only what had hitherto been its specific area of concern — building dams or highways, for example — but also the full range of environmental concerns expressed in NEPA, including the crucial comparison of economic, technical and environmental costs and benefits that had previously been absent from many federal undertakings. The statute was to have a real effect. Agencies were to act differently post-NEPA from their pre-NEPA habits.

Having in maind, then, what Congress and the President said when they enacted NEPA, I turn to the specific inquiries to be pursued here: (1) How have the courts received the words of Congress? (2) Has the courts' treatment of the statute accorded with the generally accepted corpus of administrative law? (3) If the courts should eventually settle upon the view that NEPA does create judicially enforceable substantive rights, would they be trespassing on the proper domain of the political branches of government?

I. NEPA's Reception in the Courts

Different judges have understandably reacted to NEPA with different degrees of hospitality. Tot judices, quot sententiae. The high-water mark of judicial enthusiasm for the statute was probably reached, strange as it seems, in the first opinion construing it. On February 5, 1970, when NEPA was still in its early infancy, Judge Roberts of the Western District of Texas said in Texas Comm. on Natural Resources v. United States:¹⁰

The basis of the plaintiffs' motion is the National Environmental Policy Act of 1969, Public Law 91-190, 83 Stat. 852, … a federal statute which became effective on January 1, 1970. This statute is both comprehensive and specific, and it definitely reflects the rapidly growing awareness and considerable concern of the Federal Government with regards [sic] to the environment.

The Congress has expressed in strong and clear language their concern over what we are doing to our environment. In the language of the statute Congress has recognized the "critical importance of restoring and maintaining environmental quality" … it is hard to imagine a clearer or stronger mandate to the Courts.

Although this declaration accords with the thesis of this article that NEPA creates judicially enforceable substantive rights, one cannot resist observing that it is not at all hard to imagine a clearer or stronger mandate to the courts than NEPA § 101.

At the other extreme, a number of judges have recoiled in horror at the task of applying NEPA's broad terms to [3 ELR 50032] unfamiliar factual issues of biology, economics, engineering, and the like. A good example is Howard v. Environmental Protection Agency,¹¹ in which plaintiffs claimed that EPA's design to erect a sewage treatment plant was illegal because no environmental impact statement had been filed pursuant to § 102(2)(C) of NEPA. This claim was rejected for reasons not relevant here. In the course of the opinion the court complained that plaintiffs' dissatisfaction was not really with the failure to file an impact statement, but rather with the location of the treatment plant and the treatment technology chosen by EPA. The court expatiated on its own inadequacy to deal with such issues:

This court has no authority or power to require a three-stage facility to be constructed. This is a matter which must be left for expert judgment and determination in fields where this court has no experience or expertise.

The remedy of the court in this area is limited solely to requiring an environmental study to be made …. This court has no authority or power to pass upon the design of a public facility….

… these are not issues which are proper for judicial review. They do not present legal problems, but rather mechanical, logistic, and engineering problems. This court will, therefore, not consider them.¹²

Many judges are fond of expounding on the limits of the judicial process, but this passage must be a locus classicus of self-abnegation. Certain issues, it is said, are per se unsuited to judicial resolution. Courts are for "legal problems," not those of mechanics or engineering. Never mind that staggeringly complex factual issues of manufacturing, patentiability, construction, and the like are the everyday fare of courts and lawyers in tort and contract cases. One wonders what the court's reaction had been if the claim before it had arisen in the more traditional context of an action for breach of contract. Suppose, for example, that EPA had contracted with the plaintiff Howard to build a sewage-treatment plant "in accordance with the best technology practicable at the time of construction." Suppose further that EPA was about to build a plant using only secondary treatment methods, while Howard claimed, supported by expert testimony, that tertiary treatment was both practicable and superior to secondary treatment. Would the court have abstained from adjudication altogether, leaving the parties to the contract action where it found them? Surely not. Courts, after all, are not created to resolve "legal problems." Litigants are not interested in "legal problems." It is the courts' business to resolve real disputes, including difficult factual issues, even if judge and counsel must in the process become instant experts in some technical or scientific field.

Notwithstanding its vulnerability, however, this judicial attitude has appeared in a number of other NEPA opinions. An analysis of the decided cases shows a fairly clear line of division between trial and appellate courts. The latter have been more willing than their nisi prius brothers to claim a substantive reviewing function for the courts, perhaps because the calmer atmosphere of the appellate process is conducive to a more philosophical view, perhaps because most of the hard work of reviewing difficult issues of fact will fall upon the district courts. In any case, most trial courts have fled from the proposition that they have any duty under NEPA beyond enforcement of the procedural commands of Section 102.A good example of this attitude, as well as of the contrast between trial and appellate approaches, is the Cossatot River case. There, plaintiffs challenged construction by the Corps of Engineers of Gillham Dam on the Cossatot River in Southwest Arkansas. The complaint alleged violations of both § 101 and § 102. The District Court wrote a series of opinions that have been influential in the development of judicial interpretation of NEPA.¹³

Judge Eisele swept aside the defenses of lack of standing and sovereign immunity; gave an expansive interpretation to venue statutes; held NEPA applicable to a dam project specifically authorized by Congress in 1958, on which construction had begun in 1963, and for which about three-fifths of the total cost had been expended; viewed post-NEPA congressional appropriations for construction as no bar to judicial intervention; reviewed and held insufficient defendants' environmental impact statement; and held that construction and other activities in furtherance of the project must stop until NEPA had been complied with. But when it came to judicial enforcement of § 101, the court stopped short. It said:

Plaintiffs contend that NEPA creates some "substantive" rights in addition to its procedural requirements…. The Court disagrees.

The Act appears to reflect a compromise which, in the opinion of the Court, falls short of creating the type of "substantive rights" claimed by the plaintiffs. Apparently the sponsors could obtain agreement only upon an Act which declared the national environmental policy. This represents a giant step, but just a step. It is true that the Act required the government "to improve and coordinate Federal plans, functions, programs, and resources," but it does not purport to vest in the plaintiffs, or anyone else, a "right" to the type of environment envisioned therein.

In the instant case it is clear that the damming of the Cossatot will reduce "diversity and variety of individual choice." It is apparently plaintiffs' view that upon the basis of such a finding the Court would have the power, and duty, ultimately and finally to prohibit the construction of the dam across the Cossatot. No reasonable interpretation of the Act would permit this conclusion. If the Congress had intended to leave it to the courts to determine [3 ELR 50033] such matters; if, indeed, it had intended to give up its own prerogatives and those of the executive agencies in this respect, it certainly would have used explicit language to accomplish such a far-reaching objective. In view of this interpretation of NEPA by the Court, the plaintiffs are relegated to the "procedural' requirements of the Act.¹⁴

In other words, "[t]his Court does not intend to substitute its judgment"¹⁵ for that of Congress and the Corps of Engineers.

As will become clear, Judge Eisele was articulating an approach that has been popular with many judges faced that has been popular with many judges faced with the new statute. The presumption, as it were, is against the creation of new substantive rights, against judicial review of administrative decisions. In the absence of an express statement by Congress, no such rights exist, and no such review is available. The courts will not "substitute their judgment" for that of the agency. Review de novo (for that is what substitution of judgment must mean) is not available; therefore (somehow) no review at all will be afforded. The attitude seems particularly liable to crop out when it is a new statute that is before the court, and when the statute is not drafted with what the judges would regard as sufficient precision.¹⁶ The old hostility of courts to new statutes "in derogation of the common [that is, judge-made] law" dies hard. Under every judicial robe, after all, there is a lawyer, and lawyers do not like new laws.

Another striking example of judicial restraint is Bucklein v. Volpe.¹⁷ There, the court found a good deal less in NEPA than Judge Eisele had in the Cossatot River case:

Moreover, it is highly doubtful that the Environmental Policy Act can serve as the basis for a cause of action. Aside from establishing the Council [on Environmental Quality], the Act is simply a declaration of congressional policy; as such, it would seem not to create any rights or impose any duties of which a court can take cognizance. There is only the general command to federal officials to use all practicable means to enhance the environment. 42 U.S.C. Sec. 4331. It is unlikely that such a generality could serve or was intended to serve as a source of court-enforcible (sic) duties.¹⁸

Again, there is a curious turn of phrase that recurs in a number of opinions. NEPA is "only" or "simply" a declaration of congressional policy; therefore it cannot form the basis for action in court. This reasoning is worse than a non sequitur. It betrays a fundamental misconception of what a statute is. Every statute is a declaration of congressional policy. Congressional policy, after all, is law. Courts should receive such declarations with the same reverence with which judicial precedents are treated. That Congress has not in NEPA itself erected a procedural mechanism for enforcement is immaterial. That is the business of the courts. They have fashioned appropriate remedies and interstitial procedures for years and do not need Congress to show them how.¹⁹ It is for Congress to declare policy, and for the courts, unless the legislators have already done so expressly, to apply their traditional apparatus of remedies to enforce that policy,²⁰ assuming, of course that there is no express legislative preclusion of judicial action. Statutes are sources of law just as much as, probably more than, decided cases, and they should be graciously received by the courts and enforced through that process of reasoned elaboration that is the glory of the common law.²¹

Despite these principles, however, trial courts have on the whole persisted in denying any but procedural enforcement to NEPA.²² Chief Judge Friendly, sitting on a three-judge district court reviewing an ICC determination to permit the abandonment of certain tracks, has stopped just short of embracing this view.²³ Only a few [3 ELR 50034] trial-court judges have ventured to disagree,²⁴ and only three or four have done so with much assurance.²⁵

The appellate picture is quite different.²⁶ Aside from the Tenth Circuit, which has given fairly solid indication that it believes no substantive review under NEPA is available,²⁷ those courts of appeals that have addressed directly the question favor the view that substantive review exists. The first group of cases on the point came from the Court of Appeals for the District of Columbia Circuit. In Calvert Cliffs' Coordinating Comm. v. AEC,²⁸ one of the leading cases thus far decided under NEPA, that court took advantage of a proceeding to review rules adopted by the Atomic Energy Commission to discuss and analyze NEPA at length. The opinion is commendably grounded in the words of the statute. A sharp distinction is drawn between § 101, which sets forth a "general substantive policy,"²⁹ and § 102, which is "not highly flexible"³⁰ and establishes "a strict standard of compliance."³¹ Of § 101, the court says that it:

leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances.³²

The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.³³

These passages are dicta in the strict and proper sense. It was not necessary for the Calvert Cliffs' opinion to talk about the reviewability of agency action under § 101. A close application of § 102 to the procedures adopted by AEC rules would have sufficed to decide the case. All the same, the opinion is carefully written and fully researched, and its words were manifestly not chosen lightly or inadvisedly. Some attention should therefore be paid to the phrasing used in respect of § 101. The section does not leave room for an exercise of discretion simpliciter, but only for a "responsible" exercise of discretion. In "particular problematic instances" the Act's substantive provisions "may not require particular substantive results"; in other instances, it must follow, particular results "may" be required, and the courts will enforce such a requirement if necessary. Courts can (and, presumably, must) "reverse a substantive decision on its merits, under § 101," if "the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values." It will not be enough for an agency to show that it balanced economic benefits against environmental costs. The agency will be reversed if the balance, though made in good faith, was in fact "arbitrary." Nor is it enough that an agency has actually weighed all relevant factors, including environmental [3 ELR 50035] values. The agency will be reversed on the merits if its substantive decision "clearly gave insufficient weight to environmental values." And, while the power and duty to reverse are "probably" limited to the two named situations — (1) an arbitrary balance of costs and benefits and (2) clearly giving insufficient weight to environmental values — they are not necessarily or always so limited. The insertion of the word "probably" in this crucial sentence may have been occasioned by the court's desire to leave open the possibility that in some cases a standard of review stricter than the traditional one of "arbitrary and capricious" action might be applied.³⁴

Other authorities in the same circuit are in accord. In the Cannikin nuclear test case, for example,³⁵ the court opined that "[o]n the ultimate issue whether a project should be undertaken or not, a matter involving the assessment and weighing of various factors, the court's function is limited."³⁶ The proposition that on such substantive matters the courts have no function, that substantive decisions are simply not reviewable under NEPA, was pointedly avoided. And in Natural Resources Defense Council, Inc. v. Morton,³⁷ the court said, in a passage that has much to teach about the relationship of courts and agencies:

In this as in other areas, the functions of courts and agencies, rightly understood, are not in opposition but in collaboration, toward achievement of the end prescribed by Congress. So long as the officials and agencies have taken the "hard look" at environmental consequences mandated by Congress, the court does not seek to impose unreasonable extremes or to inject itself within the area of discretion of the executive as to the choice of the action to be taken.³⁸

These passages, like those quoted above from Calvert Cliffs', would doubtless be flagged as dicta by a technician, but there can be little doubt that the Court of Appeals for the District of Columbia Circuit is rather firmly on the side of substantive reviewability under NEPA.

The Second Circuit seems to agree. Scenic Hudson Preservation Conf. v. FPC³⁹ was a proceeding to review the action of the Federal Power Commission in granting a license to Consolidated Edison Company for a pumped-storage hydroelectric project on the Hudson River. Section 313(b) of the Federal Power Act,⁴⁰ under which the petition for review was brought in the court of appeals, provides that "findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." One of the claims of the parties protesting the grant of the license was that the Federal Power Commission had not given proper weight to environmental factors as required by § 101 of the NEPA. The opinion of the court of appeals, although not completely clear on the point, appears to proceed on the assumption that this claim is justiciable. All of the procedures required by § 102 of NEPA had been followed, the court held, and "exhaustive environmental findings" had been made.⁴¹ The court said, summarizing its method of approach:

Where the Commission has considered all relevant factors, and where the challenged findings, based on such full consideration, are supported by substantial evidence, we will not allow our personal views as to the desirability of the result reached by the Commission to influence us in our decision.⁴²

The initial decision by the three-judge panel in Scenic Hudson was a divided one. Judge Oakes dissented. In his view, the FPC acted arbitrarily and abused its discretion. He noted that "[w]hile judicial deference to administrative expertise is required, not every agency is expert in every aspect of science, technology, aesthetics or human behavior."⁴³ The parties objecting to the license then petitioned for rehearing en banc, and Judge Hays, who had written the original panel opinion, voted to grant the petition. Only four judges out of the eight in active service did so, however, so the petition was denied by an equally divided court. Judge Timbers, dissenting from the denial of rehearing en banc, repeated the theme of the original dissent from the opinion of the panel: "A substantial question of unusual importance is presented by the panel's application of the substantial evidence test in reviewing the FPC's determination that the benefits of the project outweigh the environmental damages."⁴⁴ Certiorari was denied.⁴⁵ Mr. Justice Douglas wrote a dissenting opinion from this action of the Supreme Court and specifically noted his doubt that the court of appeals had applied the proper scope of judicial review to the FPC's ultimate balancing of the need for energy against environmental values. The Justice said:

I share Judge Timbers' doubts that under Section 101 the [3 ELR 50036] balance struck by an agency unskilled in environmental matters should be reviewed only through the lens of the "substantial evidence" test.⁴⁶

The Act requires that bureaucrats not only listen to protests, but … avoid projects that have imprudent environmental impacts. There is no burden of proof for the objector to overcome.⁴⁷

The Fifth Circuit has not yet expressed itself unequivocally, but one of the earliest cases decided under NEPA, Zabel v. Tabb,⁴⁸ appears to incline that court towards the view that NEPA does create substantive rights enforcible in the courts. Zabel was an action to compel the Corps of Engineers to issue a dredge-and-fill permit under § 10 of the Rivers and Harbors Act of March 3, 1899.⁴⁹ The Corps had denied such a permit in 1967, before the effective date of NEPA. The district court ordered the Corps to issue the permit, but the court of appeals reversed. NEPA was one of the grounds given for the reversal. Particular reference was made to § 101.⁵⁰ Even though the decision of the Corps of Engineers being reviewed had been made in 1967, the court said the present law, including NEPA, would be applied to test its validity. The case had nothing to do with the procedural requirements of § 102. No one was claiming that the decision of the Corps of Engineers was invalid because a 102 statement had not been prepared three years before the effective date of the statute. The Corps simply argued that under § 101 it had a legal duty to consider environmental questions, and that its judgment of these questions was one reason to uphold its denial of the dredge-and-fill permit. Section 101, in other words, was successfully usedas a shield to defend actions by the Corps. The court, at least inferentially, upheld the Corps' application of § 101, because it approved the agency's denial of the permit. If § 101 can be used as a shield, it should also be available as a sword in proper cases. Whether the Fifth Circuit will take Zabel v. Tabb to this logical conclusion remains to be seen.⁵¹

Perhaps surprisingly, the most explicit judicial declaration on the question being considered here has come from the Court of Appeals for the Eighth Circuit, a court not often marked in the past by a penchant for legal innovation.⁵² Two recent opinions of the Eighth Circuit discussed the issue in some detail. The first of these, decided on November 28, 1972, is Environmental Defense Fund, Inc. v. Corps of Engineers,⁵³ the appeal from Judge Eisele's second decision in the Cossatot River case. The court first held that the district court had been correct in upholding the second environmental impact statement submitted by the Corps of Engineers. It disagreed, however, with the district court's statement that NEPA "falls short of creating the type of 'substantive rights' claimed by the plaintiffs," and that therefore "plaintiffs are relegated to the procedural requirements of the Act."⁵⁴ The court analyzed the legislative history of NEPA and the language of § 101. It reviwed the opinions of other circuits on the question of substantive reviewability and noted the general canon that reviewability is presumed in the absence of a strong showing to the contrary.⁵⁵ The fact that NEPA is silent as to judicial review, in the view of the Eighth Circuit, cut in favor of reviewability, rather than the other way. The court also noted that scholarly comment was generally on the side of reviewability.⁵⁶ One interesting additional argument used by the Eighth Circuit in support of its conclusion was a reference to the third annual report of the Council on Environmental Quality.⁵⁷ In this report, the Council rather too assuredly [3 ELR 50037] stated that

The courts have uniformly said that after an agency has considered environmental effects, its decision to act is subject to the limited judicial review afforded by the traditional arbitrary-or-capricious and substantial evidence tests.

Thus, the district court decision in the Cossatot case, which has been so widely used as authority against substantive reviewability, has itself been reversed. Unfortunately for the plaintiffs, they won the battle of reviewability but lost to the war of the substantive merits of the dam-building decision of which review was sought.For the court of appeals, instead of remanding for the customary substantive review by the district court, simply reviewed the entire record on its own motion and determined that the decision to proceed was not, as a substantive matter, arbitrary and capricious.⁵⁸

A little over two weeks after its decision in the Cassotot case, the Eighth Circuit came forth with an even more striking pronouncement in favor of judicial power, this time on another appeal from the United States District Court for the Eastern District of Arkansas. This case, known as the Cache River-Bayou deView case, involved a Corps of Engineers channelization project in Eastern Arkansas that, if completed, would, according to the plaintiffs, convert approximately 252 miles of streams into drainage ditches. The plaintiffs advanced a variety of arguments against the project, including the now traditional argument that the environmental impact statement was inadequate. They also claimed that the substantive decision to build a ditch was reviewable under the Administrative Prcedure Act and that, upon review, it should be set aside as violative of § 101 of NEPA. In addition, plaintiffs argued that the costs exceeded the benefits of the project, in violation of 33 U.S.C. § 701a, and that the court should enjoin the project on this additional and independent ground. Plaintiffs lost on all points in the district court. On appeal, the court of appeals reversed.⁵⁹ The court first held that the environmental impact statement was inadequate and that the case would have to be remanded for the composition of a new statement and a review by the court of its sufficiency. It went on to say, additionally, relying upon its 16-day-old opinion in the Cossatot River case, that the courts have the authority and duty to review the substantive decision under the traditional arbitrary-or-capricious standard of the Administrative Procedure Act. The court said:

We held in Environmental Defense Fund, Inc. v. Corps. of Engineers of the United States Army … that District Courts have an obligation to review substantive agency decisions on the merits to determine if they are in accord with NEPA.

The review is a limited one for the purpose of determining whether the agency reached its decision after a full, good faith consideration of environmental factors made under the standards set forth in Sections 101 and 102 of NEPA; and whether the actual balance of costs and benefits struck by the agency according to these standards was arbitrary or clearly gave insufficient weight to environmental factors.

As to the claim that the costs of the project exceeded its benefits, plaintiffs' effort to obtain judicial review was rebuffed. Section 801a of Title 33, the court said, was only a "statement of policy" and could not be used "as a vehicle for continuing evaluation of the project by the courts." The following highly significant paragraph, however, then followed:

We point out, however, that the relief requested by the plaintiffs under Section 801a is partially available under NEPA. To fully comply with NEPA, the Corps must reappraise the costs and benefits of the project in light of the policies of environmental protection found in NEPA. As we have stated, a decision to proceed with channelization is reviewable in a district court to determine whether the actual balance of costs and benefits struck by the agency according to the standards of Section 101 and 102 of NEPA was arbitrary or clearly gave insufficient weight to environmental factors.⁶⁰

Thus, the dicta in Calvert Cliffs' have now become holdings, at least in the Eighth Circuit. It will not be enough for an agency to say that it has weighed the costs and benefits of a project in good faith, or that Congress itself, in authorizing the project before NEPA was passed, authoritatively and finally determined that the benefits exceeded the costs. Costs and benefits must now be re-evaluated in light of the new policies of NEPA, and the validity of this re-evaluation is open to question by the courts. If the balance of costs and benefits struck is arbitrary, or if insufficient weight has clearly been given to environmental values, it will be the duty of the courts, not simply to delay a project until procedural compliance with § 102 has occurred, but to set aside the agency decision to complete or continue with the project, at least until a new record is compiled or until new facts are adduced to bring that decision within the legitimate area of administrative choice.

II. NEPA And Traditional Principles of Administrative Law

Up to this point, I have contented myself largely with cataloguing the decided cases, comparing them with one [3 ELR 50038] another, and describing the present state of the authorities. Such an inquiry, while not without interest, at least for practitioners, is not centrally important. The real question to be examined should be, "What should the law be?" rather than "What have courts decided?" Even if, as Justice Holmes once remarked, law is what judges will do, the instant question is still open to inquiry, because the Supreme Court has not yet expressed itself on the point.

Two opinions of the Supreme Court, however, point the way rather clearly. The first is Udall v. FPC.⁶¹ There, the Federal Power Commission had awarded a license to construct a hydroelectric power project at High Mountain Sheep, a site on the Snake River in Idaho. Under § 10a of the Federal Power Act,⁶² any "project adopted" by the FPC must be such "as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway … and for other beneficial public uses, including recreational purposes." Further, under § 7(b) of the Federal Water Power Act of 1920,⁶³ the FPC was obliged to consider whether "the development … [assuming that there should be any development] should be undertaken by the United States itself," as opposed to other private or public entities. A number of other statutes were considered relevant to the court's review of the FPC: the Anadromous Fish Act of 1965,⁶⁴ and the Fish and Wildlife Coordination Act of 1934.⁶⁵ This latter statute provided, in pertinent part, that in the development of federal water-resource programs, "wildlife conservation shall receive equal consideration and be coordinated with other features of water-resource development programs…." All of these factors were to be weighted, under § 4(e) of the Federal Power Act,⁶⁶ in order to determine if a finding could be made that "the contemplated improvement is, in the judgment of the Commission, desirable and justified in the public interest for the purpose of improving or developing a waterway … for the use or benefit of interstate or foreign commerce…."

On review of the Federal Power Commission, the Supreme Court reversed the Commission's determination and remanded the case for further proceedings. The important point for present purposes is not whether the Court was correct on the merits of its decision, but rather that no member of the Court, including those who dissented on the merits, doubted that the Federal Power Commission's decision was reviewable. The quoted language of the statutes cited obviously leaves a good deal to be desired in the way of precision, assuming that precision is one object that the draftsmen of legislation ought to have in view. It could easily have been said of this language, as many courts have said of NEPA, that Congress must have intended to leave the matter entirely to the Commission, or it would not have expressed itself in such indefinite terms. It is true, of course, that a specific statute makes decisions of the Federal Power Commission reviewable in the courts. Still, if the courts are not inherently disabled from considering questions in a statutory framework as imprecise as that of the Federal Power Act and the Fish and Wildlife Coordination Act, there is no reason why they should be so disabled in the context of NEPA.

A somewhat later decision expands and elaborates these premises and presents a situation where no specific statute conferred reviewing jurisdiction upon the courts. This case, Citizens to Preserve Overton Park, Inc. v. Volpe,⁶⁷ is probably the leading recent Supreme Court case on reviewability under the Administrative Procedure Act. The case arose out of a dispute whether in interstate highway should be run through a public park in Memphis, Tennessee. Under § 4(f) of the Department of Transportation Act of 1966,⁶⁸ and § 18(a) of the Federal-Aid Highway Act of 1968,⁶⁹ no federal-aid highway may be run through "any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, state, or local significance" … unless the Secretary of Transportation finds:

(1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, [or] wildlife and waterfowl refuge … resulting from such use.

Plaintiffs, opposed to the construction of the highway through Overton Park in Memphis, brought an action in the United States District Court for the Western District of Tennessee seeking to review the determination of the Secretary of Transportation to build the highway. Summary judgment was granted for the defendant Secretary, and the Court of Appeals for the Sixth Circuit affirmed.⁷⁰

In an opinion firmly grounded in the words of the applicable statutes, the Supreme Court reversed. The Court characterized the question whether petitioners were entitled to any judicial review at all as "easily answered."⁷¹ The general rule, the Court said, is that decisions are reviewable unless a clearly contrary intention [3 ELR 50039] has been manifested by Congress.⁷² The Court also noted the express language of § 701 of the Administrative Procedure Act,⁷³ which provides that the action of "each authority of the Government of the United States" is subject to judicial review except if review is expressly prohibited by statute, or "agency action is committed to agency discretion by law." In the case of the parklands statute involved in Overton Park, there was, of course, no express congressional prohibition of review. The same is true, incidentially, of NEPA. None of the opponents of reviewability under § 101 of NEPA has ever claimed that the statute expressly precludes review.

The other exception, that for action "committed to agency discretion by law," was characterized by the Supreme Court in Overton Park as "a very narrow exception."⁷⁴ The Court said:

The legislative history of the Administrative Procedure Act indicates that [this exception] … is applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' S. Rep. No. 752, 79th Cong. 1st Sess. 26 (1945).

The Court had no difficulty in finding "law to apply" in the language of the Department of Transportation Act and the Federal-Aid Highway Act. These statutes were called "clear and specific directives,"⁷⁵ in spite of the fact that the words "feasible," "purdent," and "all possible planning to minimize harm," were obviously subject to different interpretations and different meanings in different particular fact situations. The Court noted that some of the legislative history supported defendant's view that a wide range of discretion was being conferred upon the Secretary of Transportation. Other portions of the legislative history, however, were to the contrary, and the Court concluded that because of this ambiguity "it is clear that we must look primarily to the statutes themselves to find the legislative intent."⁷⁶ The power of the courts to review the Secretary of Transportation was firmly upheld, and no member of the Court sitting in Overton Park disagreed with this conclusion. The case did not involve NEPA as such, but it may be significant that NEPA was cited at the very beginning of the Court's opinion as an example of "legislation designed to curb the accelerating destruction of our country's natural beauty.⁷⁷

The important thing about Overton Park is that it firmly establishes the presumption of reviewability and the narrowness of the exceptions to the Administrative Procedure Act. The question to be considered, that is, is not whether NEPA creates a right enforcible by the court in so many words, now whether it expressly creates a statutory framework governing review by the courts, as, for example, the Federal Power Act and the Federal Communications Act do. Assuming that some specific statutory authority in favor of reviewability is necessary to confer jurisdiction upon the courts, an assumption that perhaps need not be made, the Administrative Procedure Act supplies this need. It is a general and sweeping declaration of the power of the courts to review Administrative agencies. Only if NEPA can be characterized as "no law to apply" is the conclusion that substantive decisions are not reviewable to determine whether they comply with its terms supportable.

The inquiry whether NEPA can be said to be "no law" must begin with the Supreme Court's admonition in Overton Park that the incidence of this exception to reviewability under the Administrative Procedure Act is "rare."⁷⁸ We have already analyzed the words of NEPA and seen that they cannot be brushed aside as "mere policy declarations" too vague to be applied or enforced. It is true that they give a great deal of latitude to the decisionmakers, probably more latitude, we might say with the benefit of hindsight on the Supreme Court's construction, than the federal-aid highway statutes construed in Overton Park. It is also true that a wide area of discretion remains within which federal agencies are free to apply NEPA and interpret it in particular cases. It certainly does not follow that these agencies are beyond the power of correction when they exceed the bounds of this discretion. Such a holding should be reached with the utmost reluctance, for it amounts to an affirmation that administrative irrationality is not subject to correction in the courts, the branch of our government preeminently suited to rational and systematic inquiry of particular issues of fact and law.

Other cases in which reviewability has been upheld under statutes no more precise than NEPA should be mentioned for purposes of comparison. A good example is Parker v. United States,⁷⁹ which arose under the Wilderness Act of 1964. Section (2) of this Act⁸⁰ defined a wilderness, in part, as an area which:

(1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive or unconfined type of recreation; (3) has at least 5,000 acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. [3 ELR 50040] Under § 3(b) of the same Act⁸¹ it is the responsibility of the Secretary of Agriculture, on or before September 3, 1974, to report his findings to the President as to the suitability or nonsuitability of preservation as wilderness of certain areas in the national forest system. The President is thereupon to advise the Congress of his own recommendations with respect to the designation ofthese areas as "wilderness."

In Parker an agency of the Department of Agriculture had made a contract with private interests for the lumbering and harvest of designated timber located on certain public lands in Colorado. These lands were not within a presently designated wilderness area, nor were they within an area that had been designated by the Agriculture Department as "primitive," an administrative classification existing at the time that the Wilderness Act was passed. The court of appeals nevertheless ordered that the lumbering contract not be carried out, reasoning that its execution would moot the opportunity of the Secretary of Agriculture and of the President to recommend to Congress that the particular area involved be classified as wilderness.The court readily admitted that the Wilderness Act conferred wide discretion both upon the Secretary of Agriculture and the President. Such wide discretion, however, the court said, "is never judicially unapproachable when there is 'law to apply.'"⁸² The general purpose of the Wilderness Act, to preserve one factor of the natural environment from the destructive and hasty inroads of man, was clear, the court said. The court held that the Wilderness Act was "law to apply," despite the vagueness of some of its language, including the use of the word "practicable" in § 2(c).⁸³ The court did not order the Secretary of Agriculture, or the President, or the Congress, to classify the area in question as wilderness, of course. It simply directed that no harvesting of timber take place in such a way as to remove the possibility of such a classification's being made at the conclusion of the statutory period of ten years' study. Thus, the court was acting in aid of congressional policy and administrative practice, not in opposition thereto, although in the particular case it did disagree with an administrative action of the executive department being reviewed.

Rockbridge v. Lincoln⁸⁴ is probably an even stronger example. Under 25 U.S.C. § 261:

The Commissioner of Indian Affairs shall have full power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and prices at which such goods shall be sold to the Indians.

and under 25 U.S.C. § 262:

Any person desiring to trade with the Indians shall … be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe….

Rockbridge was an action under the Administrative Procedure Act to compel the Commissioner of Indian Affairs to enforce regulations already in effect and, beyond that, to adopt certain trading rules deemed necessary by the plaintiffs for the protection of Indians. Requiring the Commissioner to enforce his own existing regulations was certainly not a startling request. To compel him to adopt certain specific rules, however, would appear to go to the outer limits of judicial power, particularly in view of the statutory language above quoted. Notethat this language sets forth absolutely no standards, except the implied standard of equity and fairness to Indians, by which the Commissioner shall make rules and regulations. It simply says that he shall have "sole power and authority … to make such rules and regulations as he may deem just and proper." Yet, the court held that the Administrative Procedure Act conferred jurisdiction and that the decision whether to adopt particular rules and regulations had not been "committed to agency discretion by law" within the meaning of that statute. "A permissive statutory term, like 'as he may deem just and proper,' 25 U.S.C. § 261, is not by itself to be read as a congressional command precluding judicial review."⁸⁵

So far as the language of NEPA itself is concerned, then, the conclusion that claims of violation of § 101 are cognizable by the courts is not at all surprising. It is simply a traditional application of the general rule that administrative action is reviewable absent a clearn showing to the contrary. It remains to consider whether anything in the legislative history of NEPA is strong enough to overcome this presumption in favor of reviewability. The only portion of the legislative history that any court has pointed to in support of a doubt as to reviewability is discussed in an opinion by Chief Judge Friendly.⁸⁶ In an opinion joined by one of the other judges on a three-judge district court, Judge Friendly said:

Normally, of course, judicial review of the merits of an I.C.C. abandonment order is governed by the standards expressed in Section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706, … and thus is generally limited to determining, in essence, whether the Commission's findings and conclusions are supported by substantial evidence and are not an abuse of discretion. We seriously doubt, however, that the merits of the Commission's determinations under NEPA are subject to even that degree of review … Once it is determined in any particular [3 ELR 50041] instance that there has been good faith compliance with [the] procedures [of § 102], we seriously question whether much remains for a reviewing court.

In support of this doubt as to reviewability,⁸⁷ Judge Friendly referred to the fact that the original version of § 102(2)(C) of NEPA would have required "a finding by the responsible official" that certain environmental conditions had been met.⁸⁸ This language became, as the statute was enacted, " a detailed statement by the responsible official." Judge Friendly suggests, apparently, that the substitution of the phrase "a detailed statement" for the word "finding" cuts against judicial reviewability.The argument is a week reed, not nearly so strong an indication, for example, as those portions of the legislative history that the Supreme Court in Overton Park had found insufficient to overcome the presumption of reviewability. In particular, as Judge Friendly himself noted,⁸⁹ none of the committee reports, including the conference report, comments on the significance of this change in language. The sponsor of thestatute, Senator Jackson, did discuss this and other changes on the floor of the Senate, however, and said:

The agreed-upon changes … would change the language of some of [102's] requirements, but their substance would remain relatively unchanged.⁹⁰

In light of this statement by the principal Senate sponsor of the bill, it is hard to see how such a sweeping consequence as preclusion of judicial review could be attributed to the substitution of the words "a detailed statement" for the word "finding." It is true, of course, that a "finding" is ordinarily thought of by judges and lawyers as something that can be reviewed by courts. Some clearer indication than this particular item of legislative history, however, should be available if we are to conclude that Congress, without expressly saying so in the statute, intended to preclude judicial review.

There is language in the conference report on S. 1075, the bill that became NEPA, that could also be referred to as supporting a holding that judicial review has been precluded. The bill as it passed the Senate contained language, not in the House amendment, which stated that the Congress recognized that "each person has a fundamental and inalienable right to healthful environment." This language appeared in § 101(b) of S. 1075. As reported out of conference committee, and as enacted into law, the language was changed to a statement that "each person should enjoy a healthful environment…." According to the conference report, "the compromise language was adopted because of doubt on the part of House conferees with respect to the legal consequences of Senate provision."⁹¹

It is clear that the House conferees, whose position was adopted by the Congress in enacting the bill into law, were concerned that the Senate language in § 101(b) might be too broad. The statement that a person "should enjoy a healthful environment" is arguably weaker than the statement that a person "has a fundamental and inalienable right to a healthful environment." The change seems directed rather to the definition of the right being created, than to the question of whether any judicially enforcible right at all exists. The Senate language could have been read to confer upon all individuals, regardless of their particular standing, on enforcible legal right to a "healthful environment," to the exclusion of all other relevant interests. Such a conclusion is clearly not in accord with the policy of NEPA as presently enacted, which is basically a policy of healthy balance between environmental preservation and economic growth. The substitution of the phrase "should enjoy" for the phrase "fundamental and inalienable right" means simply that a "healthy environment" is only one of many factors that federal decisionmakers must consider. It is not the exclusive factor, and it therefore cannot be characterized as a "fundamental and inalienable right." The change, that is, is a change in the strength of the substantive policy being enacted into law. It is by no means a total elimination of that policy, converting the statute into a merely precatory expression. At most, the fact that the change took place is ambiguous on the issue of judicial reviewability, and therefore, under well-recognized principles and precedents, summarized in Overton Park, the language is not sufficient to rebut the strong presumption in favor of reviewability.

This conclusion — that § 101 of NEPA is "law to apply" in the courts, and that agencies that violate it may be corrected by the courts — is of course only the beginning of a larger inquiry. A number of particular questions remain that deserve examination on their own. For example, what should be the scope of judicial review? Is the traditional "arbitrary and capricious" or "abuse of discretion" language strong enough to ensure that environmental, decisions will be properly supervised by the courts?⁹² Assuming that an agency has considered all relevant factors in good faith, what additional requirements should be imposed in order to ensure that they have not [3 ELR 50042] made "a clear error of judgment?"⁹³ What is the effect of an express congressional authorization of a particular project challenged on NEPA grounds, and does it matter whether this authorization was enacted before or after NEPA?⁹⁴ What is the effect of congressional appropriations of substantial moneys for the execution of a project after the effective date of NEPA?⁹⁵

The answers to these questions, which presumably will become clear through the gradual process of litigation, will determine in large measure how meaningful judicial review in this area will be. For the moment, it is fairly clear that the existence of this power, in and of itself, is not going to result in wholesale overturning of decisions made by the political branches of government. The very court, for example, which held first and most clearly that decisions are reviewable under § 101 of NEPA also declined to hold that the particular decision in issue was arbitrary or capricious.⁹⁶ The mere existence of the power, on the other land, is a healthy thing, because "the prospect of substantive review should improve the quality of agency decisions and should make it more likely that the broad purposes of NEPA will be realized."⁹⁷

It may still be objected that for the courts to enforce a statute so broad will inevitably intrude them into policy areas where they have no business. Courts have made policy, of course, ever since the common law was conceived, but in a society increasingly governed by specific statutory pronouncements enacted by an elected legislature (to say nothing of a written Constitution), it must be conceded that the courts' law-making power is largely interstitial. As statutes become more numerous and more detailed each year, the function of the courts becomes rather to enforce the policies of the legislature, than to create and enforce policies of their own. To hold that language such as § 101 of NEPA is enforcible by the courts, and that agency decisions in conflict with it should be overturned by non-elected judges, however, is to aid the legislative process, not to hinder it, for legislation can never be specific enough to ensure that in every instance the specific will of the legislators is carried out (even assuming, an assumption which must be contrary to fact, that the legislators have a specific will in resspect of every particular fact situation to which their statutes will be applied). A statute, once enacted, escapes the control of its writers, as it were, and becomes a living thing, with a life and growth of its own. Those chosen by the Congress to execute the statute may or may not do so faithfully. Political processes are not always sufficient to compel them to follow the spirit of the law. When they transgress it, a power of correction should reside somewhere and, under our system, that place is the courts.

Administrative agencies, after all, are not more law-making bodies than are judges. They are the creatures of Congress, possessing only those powers given them by legislation. It is not enough, for example, for an administrative official to argue that no law prohibits his action, and that therefore the courts should not intervene.

This argument misses the point. The Secretary [of Transportation] is not so omnipotent that he must be presumed to possess the power to act as he chooses unless there is some law prohibiting him from so acting. He possesses only the power which Congress has given him, and the scope of that power is defined by Congress. His action is specifically reviewable under the federal Administrative Procedure Act, 5 U.S.C.A. § 706(2)(C), for being 'in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.'⁹⁸

Nor is it any answer to say that an administrative official who does not carry out the will of Congress may be corrected by Congress itself. The answer is, of course, true in theory: Congress could, conceivably, superintend each application of its laws and individually correct those applications with which it disagreed. In practice, however, such a function goes beyond lawmaking and transgresses upon the field of law-interpreting that is a traditionally judicial preserve. Congress has neither the time nor the inclination to correct individual errors of law application. That function is traditionally for the courts, and one doubts that Congress would wish to assume it. It is better left to those at least partially insulated from political pressures. Furthermore, if the courts are too zealous in enforcing one statute of Congress to the exclusion of other declared policies of the Nation, Congress may always correct them, either by curtailing their jurisdiction⁹⁹ or by enacting further substantive legislation amending the statute that it believes has been misapplied, in this case, NEPA. That this prospect is not an empty one is [3 ELR 50043] shown by the fact that Congress has actually changed the NEPA process in respect to issuance by the Atomic Energy Commission of temporary operating licenses for nuclear power reactors. Public Law 92-307, enacted on June 2, 1972,¹⁰⁰ adds a new § 192 to the Atomic Energy Act, permitting the issuance of temporary operating licenses for nuclear power reactors, in certain circumstances, before the completion of a final detailed statement under § 102(2)(C) of NEPA.¹⁰¹ Thus, if the courts enforce NEPA too strictly, as Congress apparently believed they had done in respect of nuclear power plants, the courts' statutory construction (as distinguished, say, from their interpretation of the Constitution) may be corrected by further legislative enactment.⁹⁹

To be sure, the courts will never wholly succeed in enforcing the will of Congress precisely as Congress would have wished, in overruling those exercises of administrative power that truly go beyond the legislative mandate, while upholding those applications of statute that, while not perhaps to the judges' personal liking, are nevertheless within the range of choice left by Congress to the agency. The courts, that is, cannot do everything. It by no means follows that they should attempt nothing. Judicial review, however imperfect, is at least a constant reminder to the administrative agencies that they are not all-powerful. Congress, after all, paints with a broad brush. That is the nature of the legislative process. It is for the courts to see that the broad policies commanded by Congress are not distorted in individual situations by the agents of Congress. The courts cannot write the tune, but at least they can see that it remains in the same key chosen by its composer. Theirs is "the labor of order,"¹⁰² to reduce the confusion, sometimes the chaos, of the legislative and administrative process to order, so that that process will make sense for the individual citizen. That this effort will sometimes fail, and that not every human ill can be corrected by judicial effort, is no reason not to try. In at least trying to make the administrative process rational and internally consistent, the courts are aiding, not frustrating, the will of the people as expressed by their elected representatives.

1. For a thorough and provocative general discussion, written before many cases had elaborated the National Environmental Policy Act, 42 U.S.C. §§ 4321-47 (1970), see J. Sax, Defending The Environment (1971).

2. 42 U.S.C. §§ 4321-47 (1970). The statute is often called NEPA for short.

3. Subchapter II. of NEPA, 42 U.S.C. §§ 4341-47, creates a new agency within the Executive Office of the President, the Council on Environmental Quality. The reference in text is to the statute's introductory section, 42 U.S.C. § 4321, and to Subchapter I., 42 U.S.C. §§ 4331-35.

4. One court has characterized § 101 of NEPA in just that way. Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 749, 755 (E.D. Ark. 1971), injunction dissolved, 342 F. Supp. 1211, (E.D. Ark. 1972), aff'd on other grounds, (8th Cir. 1972), app. for injunction pending cert. denied, 41 U.S.L.W. 3346 (U.S. Dec. 18, 1972) (No. A-633, 1972 Term) (the Gillham Dam case). The writer is one of counsel for plaintiffs in this case. Cases in this article are cited to the federal reporter system, unless such a citation is not available, in which case the citation is to the Environmental Law Reporter, published by the Environmental Law Institute, Washington, D.C. All cases cited in this article only to the federal reporter system are also in ELR and may be located in the tables of contents of the Litigation Section for 1971, 1972 and 1973.

5. E.g., Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 114-15 & n.12 (D.C. Cir. 1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 927 (N.D. Miss. 1972), appeal pending, 5th Cir., No. 72-2874 (the Tennessee-Tombigbee Waterway case, in which the writer is one of counsel for plaintiffs); Major Changes in S. 1075 as Passed by the Senate, 115 Cong. Rec. (Pt. 30) 40417-18 (1969). But see Ely v. Velde, 321 F. Supp. 1088, 1093 (E.D. Va.), rev'd, 451 F.2d 1130, 1138 (4th Cir. 1971).

6. 36 Fed. Reg. 7724 (1971).

7. These words are not to be construed so expansively, however, as to subvert the § 101 policies themselves. A recent decision implies that practicability is not a large loophole. "The congressional mandate is clear …. Subject only to the limitation of practicability, [federal officials] … are to strive constantly to improve federal programs and practices to preserve and enhance the environment." Environment Defense Fund, Inc. v. TVA, 2 ELR 20726 (6th Cir. 1972), affirming 339 F. Supp. 806 (E.D. Tenn. 1972).

8. Calvert Cliffs' Coordinating Comm. v. AEC, supra, 449 F.2d at 115.

9. 42 U.S.C. § 4335 (1970).

10. 2 ELR 20574 (W.D. Tex. 1970), appeal dismissed as moot, 430 F.2d 1315 (5th Cir. 1970) (per curiam).

11. 2 ELR 20745 (W.D. Va. 1972).

12. 2 ELR at 20746-47.

13. Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728 (E.D. Ark. 1970-71), injunction entered, 325 F. Supp. 749 (E.D. Ark. 1971), injunction dissolved, 342 F. Supp. 1211 (E.D. Ark. 1972), aff'd, 2 ELR 20740 (8th Cir. 1972), injunction denied pending pet'n for cert., 41 U.S.L.W. 3346 (U.S. Dec. 18, 1972) (No. A-633).

14. 325 F. Supp. at 755.

15. Id. at 751, quoting id. at 738. But cf. id. at 748, hinting that at one time the court believed it could upset the Corps's determinations "if they were arbitrary and capricious under constitutional standards." The meaning of the phrase "under constitutional standards" escapes me.

16. NEPA is "a relatively new statute so broad, yet opaque, that it will take even longer than usual fully to comprehend its import." City of New York v. United States, 337 F. Supp. 150, 159 (E.D.N.Y. 1972) (Friendly, C.J.) (three-judge court), opinion after remand to ICC, 344 F. Supp. 929 (E.D.N.Y. 1972).

17. 1 ELR 20043 (N.D. Cal. 1971).

18. 1 ELR at 20044. This passage has been at least twice cited with approval by other district judges. Sherry v. Algonquin Gas Co., 3 ELR 20228 n. 1 (D. Mass. 1972); San Francisco Tomorrow v. Romney, 342 F. Supp. 77, 81 (N.D. Cal. 1972) ("NEPA contains no provision for its enforcement").

19. Passing, for the time being, the point that Congress has shown how by the Administrative Procedure Act, 5 U.S.C. §§ 701-06. (1970).

20. Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv. L. Rev. 1532 (1972).

21. See Landis, Statutes as Sources of Law, in Harvard Legal Studies, 213 (1934).

22. Nielson v. Seaborg, 348 F. Supp. 1369 (D. Utah 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 923-25 (N.D. Miss. 1972), appeal pending, 5th Cir., No. 72-2874; Morris v. Tennessee Valley Authority, 345 F. Supp. 21 (N.D. Ala. 1972); Environmental Defense Fund, Inc. v. Froehlke, No. LR-71-C-199 (E.D. Ark. May 5, 1972), rev'd, 3 ELR 20001 (8th Cir. 1972) (the Cache River-Bayou deView channelization case, in which the writer is one of counsel for plaintiffs); Conservation Council of N.C. v. Froehlke, 340 F. Supp. 222, 225 (M.D. N.C. 1972) (reiterating the refrain that "the Court cannot substitute its opinion as to whether the projects should be undertaken or not"), aff'd per curiam, 2 ELR 20259 (4th Cir. 1972); United States v. 247.37 Acres, 1 ELR 20513, 20517 (S.D. Ohio 1971), reinstatement of writ of possession denied, 2 ELR 20154 (S.D. Ohio 1972); Environmental Defense Fund, Inc. v. Hardin, 325 F. Supp. 1401, 1404 (D.D.C. 1971) ("the Court will not substitute its judgment," etc.).

23. City of New York v. United States, 344 F. Supp. 929, 939-40 (E.D.N.Y. 1972) (2-1 decision), after remand to ICC in 337 F. Supp. 150 (E.D.N.Y. 1972). See also Hanly v. Kleindienst, 2 ELR 20717, 20724 (2d Cir. 1972) (Friendly, C.J., dissenting), after remand to General Services Administration in Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972), cert. denied, 41 U.S.L.W. 3247 (U.S. Nov. 7, 1972) (No. 72-242).

24. Cape Henry Bird Club v. Laird, 3 ELR 00000, (W.D. Va. Apr. 2, 1973); Environmental Defense Fund, Inc. v. Tennessee Valley Authority, 3 ELR 00000 (6th Cir. Apr., 1973); Akers v. Resor, 3 ELR 20157 (W.D. Tenn. Dec. 28, 1972); Virginians for Dulles v. Volpe, 344 F. Supp. 573, 577 (E.D. Va. 1972); cf. Allison v. Froehlke, 2 ELR 20357 (W.D. Tex. 1972) (Roberts, J.), affirmed, 3 ELR 20011 (5th Cir. Dec. 27, 1972).

25. Sierra Club v. Froehlke, 3 ELR 20248 (S.D. Tex. Feb. 16, 1973); Lathan v. Volpe, 2 ELR 20545, 20547 (W.D. Wash. 1972), on remand from 455 F.2d 1111, 2 ELR 20704, 2 ELR 20010 (9th Cir. 1972); Brooks v. Volpe, (W.D. Wash. 1972), on remand from 2 ELR 20139 (9th Cir. 1972). Morningside-Lenox Park Ass'n v. Volpe, 334 F. Supp. 132, 145 (N.D. Ga. 1971).

26. TheSupreme Court has not yet favored us with an opinion on NEPA. There are a few straws in the wind, but about all they indicate is that Mr. Chief Justice Burger thinks that some lower courts may have exercised "equitable powers loosely or casually whenever a claim of 'environmental damage' is asserted," Aberdeen & R.R.R. v. Students Challenging Regulatory Agency Procedures, 2 ELR 20491, 20494 (Burger, Circuit Justice, July 19, 1972), denying stay of injunction entered in 2 ELR 20486 (D.D.C. 1972) (Wright, J.) (three-judge court); cf. D.C. Fed'n of Civic Ass'ns v. Volpe, 405 U.S. 1030, 1031 (1972) (Burger, C.J., concurring), denying cert. in 459 F.2d 1231 (D.C. Cir. 1971), while Mr. Justice Douglas fears that NEPA has been construed too grudgingly by lower courts, Scenic Hudson Preservation Conf. v. FPC, 407 U.S. 926 (1972) (dissenting opinion), denying cert. in 453 F.2d 463 (2d Cir. 1971), rehearing en banc denied by an equally divided court, 453 F.2d i494 (2d Cir. 1971). See also Committe for Nuclear Responsibility v. Seaborg, 404 U.S. 917 (1971) (per curiam) (denial of certiorari before judgment) (Black, J., joined by Douglas and Brennan, JJ., dissenting). On December 18, 1972, probable jurisdiction was noted of an appeal from Aberdeen & R.R.R. v. Students Challenging Regulatory Agency Procedures, supra, so perhaps some explication of NEPA by the Supreme Court will be forthcoming soon. 41 U.S.L.W. 3346 (U.S. Dec. 18, 1972) (Nos. 72-535 & 72-562).

27. National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971); Upper Pecos Ass'n v. Peterson, 452 F.2d 1233 (10th Cir. 1971) (citing, among other authorities, Judge Eisele's Cossazot River opinion), cert. granted, 406 U.S. 944 (1972), remanded for determination of mootness, 41 U.S.L.W. 3287 (U.S. Nov. 20, 1972) (No. 71-1133); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971) (probably limited to matters of national security). The Seventh Circuit may be tending in the same direction, but the expression in Bradford Township v. Illinois State Toll Hwy. Auth., 2 ELR 20322 (7th Cir. 1972), is dictum at most, and is based partly on Judge Eisele's Cossatot River opinion, which, as indicated below, has been disapproved by the Eighth Circuit. See also Jicarilla Apache Tribe v. Morton, 471 F.2d 1275, 1279-80, 3 ELR 20045, 20046 (9th Cir. Jan 2, 1973).

28. 449 F.2d 1109 (D.C. Cir. 1971).

29. Id. at 1112.

30. Ibid.

31. Ibid.

32. Ibid.

33. Id. at 1115.

34. Cf. Scenic Hudson Preservation Conf. v. FPC, 407 U.S. 926 (1972) (Douglas, J., dissenting from the denial of certiorari); Sive, Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 Colum. L. Rev. 612 (1970).

35. Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783 (D.C. Cir. 1971) (per curiam), summary reversal of denial of preliminary injunction after remand denied per curiam, 404 U.S. 917 (1971) (4-3 decision; Douglas, Brennan, and Marshall, JJ., dissenting).

36. Id. at 786.

37. 458 F.2d 827 (D.C. Cir. 1972).

38. Id. at 838.

39. 453 F.2d 463 (2d Cir.), rehearing en banc denied by an equally divided court, 453 F.2d 494 (2d Cir. 1971), cert. denied, 407 U.S. 926 (1972). For prior opinions in the case see 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).

40. 16 U.S.C. § 825l(b).

41. 453 F.2d at 481.

42. Id. at 468.

43. Id. at 484.

44. Id. at 494.

45. 407 U.S. 926 (1972).

46. 407 U.S. at 933.

47. Id. at 933. One district court has expressed similar doubts that nonenvironmental agencies are entitled to the traditional deference paid to "expertise." "[T]here is nothing in the Environmental Act which concedes any environmental expertise in the area to any other governmental agency except the Environmental Agency. [This reference is apparently to the Council on Environmental Quality.] The whole purpose of it [NEPA] is to see to it that the various agencies, before acting, at least obtain the counsel of the expert in the field." United States v. 247.37 Acres, 1 ELR 20513, 20513, 20514 (S.D. Ohio 1971), motion to reinstate writ of possession denied, 2 ELR 20154 (S.D. Ohio 1972). This case specifically involved the Corps of Engineers. The court characterized the position of the Government in these words: "The Government claims in effect, that the Corps of Engineers is a czaristic agency — completely exempt from every statute of the United States." 1 ELR at 20516. This claim was rejected: "To hold otherwise would be to conclude that Congress has exempted one Government agency from any environmental control simply because it thought of something 33 years ago. [The project challenged in the particular case had been authorized long before NEPA.] That is not rational, especially when that agency has no reason for expertise in the environmental field. Engineers are doers and not aesthetics [sic]." 1 ELR at 20517. Despite these trenchant observations, the court limited itself to requiring compliance with the procedures of § 102. 1 ELR at 20517.

48. 430 F.2d 199 (5th Cir.), cert. denied, 401 U.S. 910 (1970).

49. 33 U.S.C. § 403.

50. 430 F.2d at 213-14.

51. A case now pending before this Court of Appeals, Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916 (N.D. Miss. 1972), appeal pending, 5th Cir. No. 72-2874, raises this question squarely. Compare Hiram Clarke Civic Club, Inc. v. Lynn, 3 ELR 20287 (dictum); Save Our Ten Acres v. Kreger, 3 ELR 20041 (5th Cir. Jan. 16, 1973) (dictum); Allison v. Froehlke, 3 ELR (5th Cir. Dec. 27, 1972) (dictum).

52. The Fourth Circuit has followed the Eighth. Conservation Council of North Carolina v. Froehlke, 3 ELR 20132 (4th Cir. Feb. 8, 1973).

53. 2 ELR 20740 (8th Cir. 1972).

54. 2 ELR at 20743, quoting 325 F. Supp. at 755.

55. E.g., K. Davis, 4 Administrative Law Treatise 1825 (1958).

56. 2 ELR at 20745 & n. 17.

57. Environmental Quality 253-54 (1972).

58. Plaintiffs applied to Mr. Justice Blackmum for an injunction pending petition for certiorari, but the Supreme Court, to which the Justice referred the application, denied the injunction, Douglas, J. dissenting, on December 18, 1972. 41 U.S.L.W. 3346 (No. A-633).Certiorari was denied, Douglas, J., dissenting, on June 4, 1973 (No. 72-1169).

59. Environmental Defense Fund, Inc. v. Froehlke, 3 ELR 20001 (8th Cir. 1972).

60. 3 ELR at 20005.

61. 387 U.S. 428 (1967).

62. 16 U.S.C. § 803(a) (1970).

63. 16 U.S.C. § 800(b).

64. 16 U.S.C. §§ 757a-f.

65. 16 U.S.C. §§ 661 et seq.

66. 16 U.S.C. § 797(e).

67. 401 U.S. 402 (1971).

68. 49 U.S.C. § 1653(f).

69. 23 U.S.C. § 138.

70. 432 F.2d 1307 (6th Cir. 1970).

71. 401 U.S. at 410.

72. Accord, e.g., Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 141 (1967); Rusk v. Cort, 369 U.S. 367-80 (1962).

73. 5 U.S.C. § 701.

74. 401 U.S. at 410.

75. Id. at 411.

76. 401 U.S. at 412 n. 29.

77. 401 U.S. at 404.

78. 401 U.S. at 410.

79. 448 F.2d 793 (10th Cir. 1971).

80. 16 U.S.C. § 1131(c).

81. 16 U.S.C. § 1132(b).

82. 448 F.2d at 795, quoting Overton Park, 401 U.S. at 410.

83. 16 U.S.C. § 1131(c).

84. 449 F.2d 567 (9th Cir. 1971).

n85 F.2d at 570. See also 4K. Davis, Administrative Law Treatise, § 28.16; L. Jaffe, Judicial Control of Administrative Action 374-75 (1965).

86. City of New York v. United States, 344 F. Supp. 929, 940 E.D.N.Y. 1972).

87. A doubt not shared by Judge Weinstein, who wrote a concurring opinion for the sole purpose of pointing out that the issue of reviewability had been neither briefed nor argued and that there was no need to reach it, since on the present record there was clearly substantial evidence to support the I.C.C.'s findings and conclusions.

88. See 115 Cong. Rec. 29085 (Oct. 8, 1969).

89. 344 F. Supp. at 940 n. 16.

90. 115 Cong. Rec. 29055 (Oct. 8, 1969).

91. H.R. Rep. No. 91-765, 91st Cong., 2d Sess. 8 (1969).

92. See, e.g., Scenic Hudson Preservation Conf. v. FPC, 407 U.S. 926 (1972) (Douglas, J., dissenting from the denial of certiorari).

93. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S 402, 416 (1971); cf. Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972); Sierra Club v. Hardin, 325 F. Supp. 99, 112-14 (D. Alaska 1971).

94. See Environmental Defense Fund, Inc. v. Froehlke, 3 ELR 20001, 20005 (8th Cir. 1972).

95. See id. at 1833-35; Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, (D.C. Cir. 1971); District of Columbia Federation of Civic Associations, Inc. v. Airis, 391 F.2d 478 (D.C. Cir. 1968) (per curiam).

96. Environmental Defense Fund, Inc. v. Corps of Engineers, 2 ELR 20740 (8th Cir. 1972).

97. Id. at 20744.

98. Named Individual Members of the San Antonio Conservation Soc'y. v. Texas Hwy. Dep't., 446 F.2d 1013, 1023 n. 18 (5th Cir. 1971).

99. See, e.g., District of Columbia Federation of Civic Associations, Inc. v. Volpe, 405 U.S. 1030, 1031 (1972) (Burger, C.J. concurring in the denial of certiorari)…. Congress may, of course, take any further legislative action it deems necessary to make unmistakably clear its intentions with respect to the [Three Sisters Bridge] project, even to the point of limiting or prohibiting judicial review of its directives."

100. 86 Stat. 191.

101. The manner in which Congress has set forth the conditions of such temporary licenses is intriguing. Public Law 92-307, 86 Stat. 191, requires, for example, that the temporary operating license must assure "adequate protection of the environment…." The statute expressly provides for judicial review, thus indicating that Congress did not consider the words "adequate protection of the environment," words considerably vaguer than those of § 101 of NEPA, inherently incapable of judicial interpretation and enforcement.

102. MacLeish, Apologia, 85 Harv. L. Rev. 1505, 1508 (1972).

3 ELR 50028 | Environmental Law Reporter | copyright © 1973 | All rights reserved