On January 1, 1970, the Council on Environmental Quality came into existence with the passage of the National Environmental Policy Act.¹ The CEQ was to serve as the guardian of environmental concerns within the Executive Branch. It was given the functions of advising the President, monitoring other agencies' compliance with NEPA, and providing information to the public on environmental matters.²

Today, CEQ stands at a critical juncture in its three and one half year history. The next few months will tell whether it will emerge from massive staff turn-overs and hostile review by the Office of Management and Budget as a strengthened and seasoned entity, or whether it will suffer funding cutbacks and a diminution of influence over the Administrion's environmental policies. With CEQ at this crossroads, an assessment of its effectiveness during its first phase is definitely appropriate.

The CEQ has compiled for itself a record impressive in many respects. The quality of its staff and of its publications, notably its annual reports, is widely acknowledged. The Council has prepared a comprehensive legislative program, much of which the President has adopted and forwarded to Congress in three annual environmental messages. Moreover, CEQ was instrumental in elevating its role from that of passive observation of the NEPA process to one of more active involvement in both defining adequate agency procedural compliance and reviewing impact statements. While the Council has not asserted the power to veto the actions of other agencies, its guidelines interpreting NEPA have frequently been employed by courts in halting projects authorized by other governmental units.

In some areas, on the other hand, CEQ's success has been less marked. In part, this may be traced to the difficulty of performing simultaneously the several roles assigned to the Council by NEPA. Although nominally the primary authority within the Executive Branch on environmental affairs, CEQ must constantly compete with other agencies and advisors who place a far lower priority on environmental concerns. To have mobilized public support on individual issues might well have won battles, but at the cost of possibly losing the war; at stake has been the Council's confidential relationship with the White House, under a President known for his dislike of public discord within his Administration. CEQ's behind-the-scenes approach has, however, caused the Council sometimes to appear less than altogether zealous and effective in defense of the environment. It is probably not yet possible to determine whether CEQ was correct in deciding that it could be more effective in a low-profile advisory role than as a highly visible environmental ombudsman, with a constituency among the public at large. (In the summer of 1973, with CEQ Chairman Russell Train's nomination as EPA Administrator and with the government preoccupied by Watergate and its aftermath, CEQ's influence at the White House seems uncertain — but the Council is no worse off in this regard than many other officials in the Administration.) Even before the current turmoil within the government, however, the Environmental Protection Agency and the courts had become more and more prominent as defenders of the environment, while the CEQ had to some extent been eclipsed in the attention of the public.

The purpose of this article is to examine CEQ's functioning in the three and a half years since its establishment, [3 ELR 50052] with particular emphasis on the Council's role as overseer of NEPA: its guidelines and memoranda governing the impact statement preparation process; its review of impact statements; and its response to instances of noncompliance with NEPA by other agencies. In addition, the article considers the advantages and limitations of the CEQ's choice of an advisory relationship with the Executive and compares the CEQ in this regard with the Council of Economic Advisors, on which CEQ was originally modeled.

Next, four cases in which courts ordered agencies to meet the requirements of NEPA, after CEQ had been unable to secure voluntary compliance, are discussed in detail.³ The article concludes by suggesting that CEQ's solution to the problems posed by its limited statutory authority has been to rely tacitly on environmental litigators and on the courts to compel recalcitrant agencies to comply with NEPA.

The CEQ As Overseer of the NEPA Process

While NEPA assigned a multitude of duties to CEQ, it did not clearly delegate to the Council responsibility for developing guidelines for agency implementation of the statute's procedures. Support for a strong CEQ oversight role could nevertheless be found in NEPA, for such responsibility could arguably fall within the Council review activities sanctioned by Title II. However, legislative history could also be cited which implied a major role in impact statement oversight and coordination for OMB.⁴ The lack of clear delegation of oversight responsibility provided the Council with an opportunity to carve out for itself an imaginative oversight role.

Executive Order 11514, issued March 5, 1970,⁵ elaborated upon CEQ's responsibilities under NEPA. Drafted at OMB with input from CEQ, the order provided the first public indication that primary responsibility for guiding the environmental impact statement process was to be vested in CEQ and not in OMB.⁶ CEQ, which sought the authority and met no resistence from OMB,⁷ has been fulfilling its oversight obligation by issuing procedural guidelines for preparation of environmental impact statements, issuing supplementary memoranda describing the NEPA process's requirements, and reviewing environmental impact statements.

A. CEQ Guidelines

Although NEPA had not been subject to lengthy floor debate or to intense lobbying by interest groups and the White House, it nevertheless had behind it a legislative history through which one major theme was interwoven — that all federal agencies had an affirmative responsibility to incorporate environmental considerations in their decision making.⁸ However, the statute and its legislative history did not develop in great detail the procedural requirements through which the consideration of environmental impacts would be encouraged.⁹ One judge has observed that NEPA's meaning is "more uncertain" than that of most statutes because of the generality of its phrasing,¹⁰ while a second judge has commented that the law is "so broad, yet opaque, that it will take even longer than usual to fully comprehend its import."¹¹

Because Congress did not elaborate on the requirements of the impact statement process in NEPA's legislative history, considerable latitude was given the CEQ in developing procedural guidelines. The Council has had to interpret such terms as "adverse environmental effects," "major action," "significant effect" and "long term productivity and short term use." These terms have had to be defined in such a manner that guidelines could readily be applied to the many federal programs having environmental impact.

CEQ Interim Guidelines. The Council's initial "interim" guidelines were released on April 30, 1970.¹² Prepared in consultation with the staffs of Senator Henry Jackson and Representative John Dingell, the principal architects of NEPA, the guidelines added significant details to the statutorily mandated environmental impact statement. For example, they required federal agencies to establish their own separate procedures for implementing the requirements of NEPA and Executive Order 11514. They also established a requirement for "draft" and "final" statements, clearly in order to assure that action-initiating agencies would give other agencies and the public a detailed basis for comment prior to making the final decision on a proposed action. Furthermore, the guidelines stressed the early, detailed evaluation of alternatives to proposed actions so as to avoid the premature foreclosing of other policy options that might have less detrimental environmental impacts.

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In three ways, however, the guidelines were as vague as NEPA itself. They provided little detailed guidance as to the kinds of actions requiring statements, gave scant direction with respect to what a statement should contain, and left somewhat ambiguous the matter of NEPA's applicability to ongoing projects. Any criticism of the guidelines' vagueness must be tempered with the recognition that the Council was in many instances feeling its way, attempting to write directions applicable to a diverse, government-wide range of agency activities. As NEPA itself had added an environmental mandate to all federal agencies through the use of a single phrase ("all major federal actions")¹³ rather than by agency-by-agency statutory recodification, the CEQ guidelines similarly specified impact statement preparation procedures for all major federal actions significantly affecting the environment without detailing statement requirements on an action-by-action or agency-by-agency basis. They assigned to line agencies the obligation to define for themselves the specific manner in which NEPA should be implemented in accordance with them.

CEQ Revised Guidelines. Following a series of meetings with agencies to ascertain their experiences with implementing NEPA, and after solicitation of public comment and wide-ranging overwight hearings held by Representative John Dingell's subcommittee,¹⁴ the Council moved to revise its guidelines. Proposed revisions of the interim guidelines were released in January 1971,¹⁵ and the proposed revisions were published in final form, with additional alterations, in April 1971.¹⁶ The April issuance was accompanied by a memorandum in which CEQ Chairman Russell Train called the agencies' attention to those sections of the revised guidelines which discussed public access to environmental statements. Train also quoted at length from one judicial decision and referred to two others, all of which indicated that adequate compliance with § 102(2)(C) would be required by the courts.¹⁷ CEQ has now promulgated a second major revision of its guidelines.¹⁸

The CEQ guidelines have reflected three themes that were present in congressional consideration of NEPA. First, evaluation of environmental impactsis the responsibility of all agencies.¹⁹ Second, environmental impact evaluation should be a conscious element of choice processes at all levels of agency review.²⁰ Third, outside commentators should play an important role in environmental review, and provision must be made for their timely intervention in administrative decision-making processes.²¹ The guidelines also expanded on a theme that was implicit in the actions of NEPA's architects — that the public should be provided information with respects to the reasoning that underlies agency choices of action.²²

The CEQ Memos. In the period between the issuance of revised guidelines in April 1971, and the publication of proposed revisions in May 1973, CEQ continued to meet informally with agencies to elicit their views regarding problems of NEPA implementation. It also relied on a series of memoranda to elaborate agency responsibilities under NEPA.

The first memo, dated May 14, 1971, identified those agencies which CEQ believed should prepare their own detailed procedures for preparing environmental impact statements. The list included 16 nondepartmental federal bodies and 44 components of 11 cabinet departments. At the end of 1971, the list was revised, and with deletions and additions comprised 22 nondepartmental federal entities and 39 components of 10 departments.²³

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Another memo, circulated in June 1971, was devoted to a description of the Calvert Cliffs' decision of the D.C. Circuit Court of Appeals.²⁴ In its opinion the court stated that the AEC's procedural interpretation of NEPA made a mockery of the Act. The CEQ's lengthy discussion of the case is a further indication of the prime role the courts have played in interpreting NEPA's requirements and in assuring agency compliance with the law.²⁵

Three succeeding memoranda described theCEQ's attempts to induce agencies to revise their procedures in accordance with the Council's revised guidelines. The first of these extended the deadline that had been established for agency revision of procedures so that agencies could take into consideration the requirements of Calvert Cliffs'. The second, circulated to the heads of agencies on September 23, 1971, listed those agency components which had not met the CEQ's September 15 deadline for submission of revised procedures. The third, issued two months later, demonstrated the CEQ's impatience with delays in agency compliance, as Chairman Train noted that "continued failure of any agency to establish … procedures can only attract unfavorable Congressional and public comment and possible legal difficulties."²⁶

In late 1971 CEQ issued two general memoranda to agencies as background information for joint agency-CEQ procedural review sessions. One memorandum provided a lengthy summation of key court decisions, abstrating eight topics for special emphasis.²⁷ The second addressed itself to matters which CEQ felt must be discussed in agency guidelines.²⁸ This latter memorandum was a major supplement to the revised guidelines of April 1971, dealing with such issues as identification of agency actions likely to require a NEPA statement; timing of impact statement preparation; the role of the NEPA statement in the decision-making process; development of agency commenting procedures; and provision for public information. This memorandum, like the guidelines preceding it, elaborated upon the congressional intent expressed in NEPA's legislative history.

Five months later, the CEQ circulated another major addendum to its published guidelines.²⁹ In a memorandum to agency NEPA coordinators and General Counsels, CEQ General Counsel Timothy Atkeson forwarded a series of 10 recommendations for improvements in agency NEPA procedures. The substantive matters addressed included the agencies' duty in preparing statements to disclose the full range of environmental impacts, to balance advantages and disadvantages of a proposed action, and to consider both opposing views and reasonable alternatives to a proposed action. The memorandum also discussed a wide range of procedural matters. It emphasized the informed involvement of outside commentators as early as possible in the formulation of decisions affecting the environment.

The format of the May 1972 memorandum differed from that of the memoranda that had preceded it in that it made specific recommendations to the agencies regarding the implementation of NEPA. Some have suggested that the change of format was an immediate response to criticism by the General Accounting Office of the CEQ's coordinating efforts, for the memorandum was prepared just before public issuance of the GAO report.³⁰ But the memorandum appeared at a time of year when one might expect CEQ to revise its guidelines, and although its content may have been influenced by the GAO report, it was in fact a direct product both of the CEQ's desire to revise its guidelines and the Council's concern by the OMB "quality of life" review process through which any formal guideline revision would have to pass.

In the OMB quality of life review, proposed agency rules and regulations pertaining to the "quality of life" are subjected to the same review process to which agency legislative proposals are subjected: that is, they are submitted to OMB, which provides copies to other executive agencies for comment. The process assures a unified administrative stance on legislation once proposals are made public.

Traditionally, agencies with rule-making powers must publish any proposed rule changes in the Federal Register. After a suitable time period for outside comments, the agencies respond to the submitted comments and publish final regulations. In instances where environmentally protective regulations have been weakened between [3 ELR 50055] the publication of a strong initial proposal and a milder final one, the Administration has been subjected to criticism that it has buckled under to the interests of polluters and their defenders within the government. The OMB quality of life review process saves the administration some of this embarrassment by giving agencies likely to oppose strict environmental safeguards, such as the Commerce Department, ample opportunity to express their reservations prior to the publication of draft agency proposals.

During early 1972, when CEQ was considering revising its guidelines, the beginnings of a congressional backlash against NEPA were in evidence. This backlash was coupled with increasing expressions of concern about possible energy shortages during the peak summer demand period. CEQ feared that if it attempted to revise its guidelines, incorporating into them the many court interpretations of NEPA that had been issued in the preceding year, the guidelines that would ultimately emerge from the review process might be even weaker than those the Council had promulgated in 1971. To avoid this possibility, while at the same time prodding the agencies to implement NEPA more fully, the CEQ resorted to the use of a memorandum containing specific recommendations. The memorandum was not subject to the quality of life review.

Cumulatively, the CEQ memoranda provide an interesting insight into the NEPA implementation process. Their lengthy discussion of court decisions underscores the considerable role that the courts have played in defining NEPA's requirements. They also indicate that the CEQ has apparently encountered some difficulty in obtaining administrative procedural compliance with the law, and that its only ultimate sanction has been to suggest that agencies will be subject to bad press and legal action should noncompliance continue.

B. Review of Impact Statements by CEQ

Structure of Statement Review. NEPA does not require the CEQ to review impact statements, stating merely that the Council is to receive them when they are forwarded to the President and to the public.³¹ Moreover, Congress did not intend for the Council to become involved in the daily decision making of federal agencies.³² Nevertheless, review of impact statements for particular decisions is a necessary part of identifying general areas of weakness in agency impact statement procedures. Furthermore, the legislative history of the statute notwithstanding, impact statement review also provides a means for CEQ to become involved in an environmentally partisan manner in debates within the federal government as to the wisdom of individual project proposals.

Although it reviews impact statements, the Council does not regard this function as its principal means of shaping federal environmental policy. Mindful of its limited manpower and political resources, the Council makes such analysis a subordinate means of policy oversight, placing its primary emphasis on reforming agency decision making to ensure both the early consideration of environmental factors and the maximum involvement of the public.

Until the end of 1971, according to one CEQ staffer, impact statement review within CEQ was largely a "haphazard" affair.³³ Another staff member suggested, however, that there was some order to the review process, and that review consisted of a "spot check" of "problem agencies and problem projects."³⁴ An initial decision was made to concentrate the review of procedural aspects of statements in the office of CEQ General Counsel Timothy Atkeson. Impact statements were then to be distributed for substantive review to other elements of the CEQ staff because demands for legislative and procedural oversight on Atkeson's office were so great. The hiring of a "federal impact evaluation staff" was a highly selective process, and it was not until the end of 1971 that such a staff, functionally divided into six reviewing areas and operating under Staff Director Alvin Alm and senior staff member Steven Jellinek, was firmly established.³⁵ Alm, who had moved to CEQ from OMB, developed the impact evaluation staff concept, modeling it after OMB's desk officer structure in which one reviewing official has principal responsibility for dealing with specified agencies.³⁶

Process of Statement Review. Impact statements on over 4,000 major federal actions have been forwarded to CEQ in the past three and one-half years.³⁷ When an impact statement arrives at CEQ, it is entered into the Council's computer. The individual entering the statements [3 ELR 50056] "tags" the most interesting or controversial projects and the computer printout is scanned for such projects by the impact evaluation staff.

Because the CEQ staff is small, detailed review of each statement is not possible. Some environmentalists have nevertheless found direct contact with CEQ staff examiners a functional means of influencing individual agency actions. The examiners search in particular for full disclosure of environmental impacts and for adequate discussion of alternative actions and their environmental consequences. Should a project or statement prove deficient in some way, the CEQ may attempt to obtain modifications. The decision to seek such remedial action of course requires a calculation of political costs and benefits by CEQ. Should the Council wish to complain about a project or statement deficiency, contact by phone or letter is initiated by the concerned impact evaluation staff examiner with the "NEPA liaison" official of the agency in question. Should satisfaction not be obtained at this level, a letter may then be sent by the CEQ Staff Director to a departmental assistant secretary. If no affirmative agency action results from this second contact, then a letter to the departmental secretary is prepared for the CEQ Chairman's signature. Should any of these initiatives fail, CEQ has the option of seeking relief through the presidential Domestic Council staff.

C. CEQ's Public Comments on Agency Compliance with NEPA

The CEQ's reliance on memoranda and other forms of informal coordination is consistent with its reluctance to condemn agencies publicly for not complying with NEPA. This reticence is best exemplified by the following colloquy between Chairman Train and Representative Paul McCloskey at the first NEPA oversight session held by Congressman Dingell's subcommittee:

Mr. McCloskey: Could you give us a list in declining order of cooperative attitudes of the Federal agencies that have been reluctant to comply with the act as you would interpret it?

Mr. Train: I would hope you wouldn't press that question, Mr. McCloskey. Our effort is to elicit their cooperation and it seems to me that kind of characterization would perhaps be tailormade to result in no cooperation.

Mr. McCloskey: It seems to me that your duties as defined in the act would be most difficult of any individual in Government because of precisely that point. Under this law, you are in effect the ombudsman for every other federal agency, and to the extent that you as an adviser to the President cannot apprise the Congress of who is failing to cooperate, the public loses the benefit of more stringent congressional oversight on this agency. It seems to me that under this particular law the Congress itself almost depends on that kind of candid statement by a special adviser to the President as to which of the agencies of Government are less willing than others to cooperate so that we can exercise our oversight….

Mr. Train: I was not trying to avoid that question, Mr. McCloskey, I did want to avoid a list, 1, 2, 3 these are the good buys and these are bad guys. I would rather not characterize whether they are cooperating or not. By and large … there is a good spirit of cooperation. Performance has not been as good in all cases as we would like. I would rather focus on the actual performance, rather than on such subjective factors as cooperative attitude.³⁸

The CEQ's policy of refraining from public criticism of federal agencies is reflected in Council publications as well. In its second annual report, CEQ observed that environmental statements were often written to justify decisions previously made rather than to provide a mechanism of critical review of such decisions; that consideration of alternatives was often inadequate; and that agencies frequently defined their mission so narrowly as to neglect their responsibility to protect the environment. In rendering these judgments, however, the CEQ did not single out any agencies for individual criticism, although it mentioned by name several agencies which had taken positive action to implement NEPA's environmental goals.³⁹

The CEQ's reluctance in its second annual report to criticize agencies for noncompliance with NEPA was noted in a staff analysis of the report prepared for Congressman Dingell's subcommittee. One staff member commented in the memo:

Here [referring to the pages in the CEQ report discussed above] an example of glossing over of difficulties — a case in point is Interior's proposed regs., which hide interagency review on Interior projects and withhold public scrutiny from "preliminary draft statements under 102".CEQ is known to be unhappy about this — why didn't they say so? …

Similarly as to State Dept … Committee has criticized AID roundly and CEQ also has had considerable discussion with them as to impact of NEPA. Not a whisper of this here. (emphasis added)⁴⁰

D. Official Critiques of CEQ Oversight Activities

The GAO Report. The General Accounting Office, the investigatory arm of Congress, released a report in May 1972 which questioned the adequacy of CEQ's oversight efforts.⁴¹ In discussing CEQ's processes for reviewing agency procedures and impact statements, GAO stated that CEQ's practice of assisting federal agencies generally and informally, and relying on the agencies themselves to resolve specific issues, would not result "in the most [3 ELR 50057] uniform and systematic implementation of … [NEPA]."⁴² GAO contended that it had been advised by CEQ that while the Council was placing greater emphasis on review of impact statements than on procedural review, it expected eventually to place greater emphasis on review of procedures when the overall quality of impact statements improved.⁴³ GAO evidently misunderstood CEQ's priorities, for in fact CEQ had been placing primary emphasis on procedural review. Nevertheless, GAO concluded that the Council's coordinating efforts needed improvement:

… [T]he Council should do more toward reviewing agency procedures and providing the agencies with specific advice and formal guidance so that problems in agency procedures are adequately and timely resolved.⁴⁴

Oversight Hearings. In December 1970, Congressman Dingell's subcommittee held the first of a series of oversight hearings on the administration of NEPA. Dingell sought to learn the agencies' attitudes toward NEPA while prodding them towards fulfillment of NEPA's goal of full disclosure.⁴⁵ CEQ Chairman Train was the first witness at the hearings, and Representative Dingell made it clear to him that he was dissatisfied with at least one CEQ interpretation of NEPA.

The CEQ had incurred Dingell's displeasure by contending that the release of a draft environmental statement to the public was not required by NEPA. In a letter to the Congressman, Train had argued that NEPA requires only a "detailed" environmental statement to be made public. The CEQ interpreted the final statement, not the draft statement, as being this statutorily required "detailed" statement. Since according to this logic a draft statement was merely an administratively devised requirement, agencies were not obligated under law to release it.⁴⁶

In response, Congressman Dingell commented that NEPA "literally drips language which makes clear that it is the intent of Congress that… information should reach the public at the earliest possible moment."⁴⁷ He stated that under the CEQ's existing interim guidelines, an agency could release a draft statement, agency review comments upon it, and a final statement all on the same day it planned to undertake a particular action.⁴⁸ Such a procedure would negate the possibility of mobilizing public opinion against a proposed project.

In reality, NEPA cannot fairly be said to "literally drip language" emphasizing the importance of having information reach the public at the earliest possible moment. An emphasis on public participation was not well developed in NEPA's legislative history, although it was quite evident in Executive Order 11514.⁴⁹ Increased public involvement may have been in the minds of Jackson and Dingell when they promoted NEPA, but it was not a theme developed in explicit fashion in legislative documents pertaining to the Act.⁵⁰

Dingell's overstatement notwithstanding, Train conceded that the Congressman's hypothetical case of an agency railroading a proposal through was a possibility under the Council's interpretation of NEPA. But, he argued, if the subcommittee wanted to ensure that it would not occur, then it should ask Congress to write into law a requirement for public release of draft statements.⁵¹ In reply, Dingell suggested that CEQ had sufficient authority under Executive Order 11514 to initiate a draft environmental statement release requirement. He added, "I would suggest to you, Mr. Train, that it would be well for you to give this committee full information as to how you propose to change your guidelines so that this Executive Order is carried out."⁵²

CEQ's initial stance in this controversy was a temporary exception to its general attitude of encouraging citizen participation in decision making. Its revised guidelines, issued four months later, met the objections of Congressman Dingell with respect to the public release of draft statements and ordered a moratorium period between release of the final statement and the promulgation of agency action.

Presidential Advisor or Public Ombudsman?

When first established, the CEQ was designed primarily to be an advisor to the President. It was not to become involved in the day-to-day decision making of federal agencies but was to provide a general evaluation of federal programs and to recommend, when appropriate, changes in program direction. While emphasizing the advisory role, NEPA's architects anticipated a second role for the Council, that of environmental ombudsman. CEQ was intended to be the body within the government to which citizens could turn for objective information on the state of the environment.⁵³ This role was elaborated upon in Executive Order 11514, which granted the Council the [3 ELR 50058] power to convene public hearings on matters of environmental significance.⁵⁴

The job of environmental ombudsman was not to be envied. Professor Lynton Caldwell pointed out at the Senate hearings on NEPA that the Council would be required to make a number of tough, potentially unpopular environmental assessments. In his view, "service on… a Council would probably preclude a future political career."⁵⁵

In setting up the two roles for the Council, Congress was interested in establishing both an advisory and a public voice independent of parochial agency and departmental positions. One Representative who recognized the potential conflict between the CEQ's dependent advisory role and independent public role was Congressman Henry Reuss. Apprehensive over the loss of public independence that might result from CEQ's advisory relationship to the President, Reuss suggested that CEQ members be given staggered six-year terms.⁵⁶ This idea was rejected by Jackson and his staff, who felt that the staggered term might give Council members some additional independence, but at the risk of affecting adversely their ability to influence the President; a member serving a six-year term spanning two administrations might become an outcast within the Executive Office during the latter part of his term.

NEPA and Executive Order 11514 thus established a role conflict for the CEQ. On the one hand the Council was directed to advise the President confidentially concerning ongoing federal programs, although it was not to interfere in agencies' daily decision making. On the other hand, it was supposed to be a fact-finder and a source of public information on environmental problems. The Council had to choose. It could be restrained in its public information activities and in its public involvement in environmental controversies, so as to assure its continued welcome at the White House, or it could publicly reveal its views on a broad range of issues and face the possibility of being shut off from effective participation in White House policy making.

By the outset of the December 1970 Dingell subcommittee oversight hearings, the CEQ's dilemma had become apparent. Chairman Train, in indicating to Dingell that the CEQ should not make public its comments on environmental impact statements, observed:

I think, gentlemen, to be very honest about it, there is a major dilemma here. It depends upon what kind of a Council you want and what kind of a role you want it to fill. It can't fill all roles. I think that is a fact. We cannot be, in a sense, the public ombudsman on environment and at the same time be confidential advisors to the President on the development of policy. It is just an impossibility to fill both these roles.⁵⁷

Representative John Dellenback, a member of the Dingell subcommittee, emphatically disagreed with the Council's view. Choosing to ignore the language of the Senate report on S. 1075 that supported Train's view, he argued:

I don't read Public Law 91-190… as creating an adviser to the President with special confidential relationships to the President…. And unless I misinterpret this act, I feel very strongly that this did not create an office of confidential adviser to the President, where the man or the men occupying those positions are to withhold anything from the Congress that they may learn.⁵⁸

Dellenback's remarks notwithstanding, by June 1971 the subcommittee appears to have resigned itself to acceptance of CEQ's interpretation of its role. In a report critical of CEQ in several respects, the committee did not attack CEQ for keeping its views confidential, but merely noted for the record the Train point of view:

The Committee also considered the desirability of making public the comments prepared by CEQ. CEQ has interpreted its relationship to the President as being similar to that of OMB in its preparation of comments on agency budget requests, which are not generally made available to the public.⁵⁹

Recognition of the administrative pragmatism of the CEQ position was also embodied in a staff memo prepared for the Dingell subcommittee minority:

It [the Council] cannot be expected to wash the administration's environmental dirty linen in public as some people would have it do. Otherwise, it probably would lose the confidence and support of the White House…. While we were developing [NEPA] in committee, the Council [3 ELR 50059] was compared to the President's Council of Economic Advisors. It, too, suffers from this same dual role — expected to be in close touch with the President, while at the same time reporting expertly and unbiasedly on the health of the economy.⁶⁰

In declining to make public its comments on environmental impact statements and refraining from public criticism of other agencies, the CEQ was clearly choosing to make its advisory role permanent. As noted below, however, the Council's position on these matters has been somewhat modified in the last eight months.

The consequences of CEQ's initial choice become apparent on examination of the controversy over the Trans-Alaskan pipeline. Construction of the pipeline from the North Slope oil fields has been held up since early 1970, when federal district court Judge George Hart enjoined the granting of right-of-way permits until such time as draft and final environmental impact statements were prepared by the Interior Department.⁶¹ The draft statement produced by the Interior Department in early 1971 was roundly criticized by federal and citizen commentators,⁶² and the final environmental statement issued in March 1972 met with similar criticism.⁶³ Following release of the final statement, pipeline critics sought public hearings, contending that the alternative of building the pipeline across Canada had been inadequately evaluated.⁶⁴ The critics were joined in their plea by 82 members of the House of Representatives,⁶⁵ but no department-sponsored hearings were held.⁶⁶

The highly controversial approval of a trans-Alaskan pipeline is precisely the type of decision for which objective evaluation of environmental impacts by a department may not occur and for which external review is important. While the Interior Department had spent nine million dollars on its environmental study, the mere magnitude of its investment was not assurance that the evaluation would not be biased towards approval of the oil companies' proposed North Slope-Valdez pipeline route. Given the unwillingness of the Interior Department to subject itself to potentially embarrassing criticism at departmentally sponsored public hearings, the CEQ could have assumed responsibility for airing the pros and cons of the departmental evaluation by convening hearings of its own. But it did not do so, perhaps because it recognized the strength of the Nixon Administration's commitment to the trans-Alaskan route.

Although the CEQ's advisory role places evident limitations on its ability to speak out publicly on issues of environmental significance, the constraints on the Council do not originate solely with in the Executive Branch. While the Dingell subcommittee exhorts the CEQ to compel strict adherence to NEPA's requirements, the Council must also be responsive to another subcommittee with quite a different viewpoint. CEQ's budget, along with that of the Environmental Protection Agency, is reviewed by the House Appropriations Committee Subcommittee on Agriculture, Environmental and Consumer Protection, chaired by Representative Jamie Whitten. Congressman Whitten, a conservative Mississippi Democrat, and author of a pro-pesticides book entitled That We May Live,⁶⁷ voted in the House against establishing CEQ. His attitude towards the CEQ and EPA can best be judged from his remarks before the 26th National Convention of the National Association of Conservation Districts:

I must preside over the annual funding requests of the Council on Environmental Quality and the Environmental Protection Agency. It is a disturbing assignment. I didn't seek it, but it's there. I have frequently pointed out that they are no longer satisfied to protect and improve our environment but are opposed to change.

They represent, under the guise of the public interest, a narrowest of constituencies — a tiny fringe of viewpoint which is against development and not really sure about people.⁶⁸

The CEQ's two appearance before the Whitten subcommittee have been devoid of rancor. The fiscal year 1972 Appropriations hearing, which marked the first appearance of CEQ before the subcommittee, served to demonstrate the subcommittee's ignorance of the Council's activities. At the end of the hearing, Chairman Whitten observed that the Council had received "kid-glove treatment," but that the questions might be more pointed in the future, after specific actions were taken by CEQ.⁶⁹ The subcommittee allocated the full sum requested by the Council.⁷⁰ For fiscal year 1973, the committee again allotted [3 ELR 50060] CEQ's full request, although funds for eight professional staff positions were ultimately to be impounded by OMB.⁷¹

The subcommittee has manifested no over antagonism towards CEQ in either of the two appropriations hearings, but it is a group CEQ knows it cannot afford to antagonize. Former CEQ member Robert Cahn observed in a post-resignation interview that it is "absolutely ridiculous" to have the budgets of CEQ and EPA reviewed by the Whitten subcommittee.⁷²

Further indication of CEQ's concern over Chairman Whitten's attitudes may be found in the Council's reports on its efforts to obtain an objective evaluation of stream channelization programs. These programs, conducted by water resource development agencies in general and by the Soil Conservation Service (SCS) in particular, have been known to have many deleterious ecological effects.⁷³ The channelization projects of the SCS are conducted as part of the agency's Small Watershed Program, a program initiated in 1954 at the urging of Chairman Whitten.⁷⁴ Not surprisingly, Whitten's home state, Mississippi, contains more miles of SCS-approved watershed works than any other state.⁷⁵

The channelization study conducted was seriously inadequate, as the recipient of the research contract glossed over the harmful environmental effects of channelization projects. CEQ sought to restore some balance to the research product, but proceeded with great caution, according to a CEQ source quoted by Science magazine, because Whitten's partiality made it essential that any criticisms of channelization be extensively documented.⁷⁶ The fact that CEQ was willing to undertake any evaluation of the sensitive issue of stream channelization, however, and the subcommittee's approval ofthe Council's appropriation would seem to suggest that Whitten has not been the enemy to CEQ that some of his remarks might have implied.

A. The CEQ as Presidential Advisor

The essence of giving advice to a President is in competing successfully with the many others who seek his attention and confidence. A recent study of the Council of Economic Advisors underscores the uncertainty and rivalries which characterize the relationships of the President and his advisors. In Economic Advice and Presidential Leadership: The Council of Economic Advisors, Edward Flash concludes that the relationship between CEA and the President can best be characterized as variable and interdependent.⁷⁷ It is moved more by the President's acceptance of CEA than by his dependence upon it, and it is more personal than institutional.⁷⁸ The President relies on CEA for advice and CEA derives strength from its presidential affiliation. But this interdependence is asymmetric. For while the President is CEA's only source of strength, the President need not depend solely upon CEA for economic advice.

Because it has not constituency of its own, CEA has always sold its views rather than prescribed them; it lacks the power to impose its will on others. Its advice and methods of operation have always been circumscribed; its involvement in policy problems taking the form of "opportunistic accommodation rather than forceful impingement."⁷⁹ Its operations have been determined less by what the President wants it to do than by what he does not object to its doing.⁸⁰

The CEA relates not only to the President, but to the Congress as well. While it does not reveal to Congress the advice it has provided the President, it does furnish discussion and analysis of the President's economic program as ultimately formulated. But this role places the CEA in an awkward position, for the line between explanation and defense of policy is quite narrow.⁸¹

The characteristics which Flash attributed to the CEA's relationship with the President would seem to apply in some measure to CEQ's relationship. This is not surprising, for CEQ was explicitly modeled after CEA. Nevertheless, CEQ can be distinguished from CEA in a variety of ways.

First, CEQ has a stronger legal basis for consulting with agencies, because Executive Order 11514 assigned CEQ oversight responsibilities for the environmental impact statement process. This process has no procedural counterpart in the legislation that established CEA.

Second, CEQ has a larger natural constituency, comprised of numerous active environmental groups, often intensely concerned with specific issues of federal environmental policy. Although CEQ's constituency is [3 ELR 50061] large, the Council's choice of an advisory relationship with the President has both limited its ability to take public actions that might mobilize its supporters and has bred distrust among environmentalists suspicious of the Administration's commitment to environmental values. Joseph Sax commented in 1970 that the Council's role

will in essence be that of a spokesman for the administration, rather than as he had been widely hoped, a spokesman for the public, openly expressing views which might at times be at odds with the administration's position and whereby using its prestige and public constituency asleverage to induce the administration to adopt sounder environmental policies⁸²

In 1972, environmentalist Anthony Roisman accused the Council of "dereliction of duty." CEQ, he said, "was created by NEPA to act as a technical consultant to federal agencies to assist them in complying with NEPA [but] has instead become a chief spokesman for amending NEPA, and has been notably devoid of any constructive suggestions for administrative solutions to the problems of federal agencies."⁸³

The Council's problems were aggravated in 1972 by congressional and administrative efforts to modify NEPA. CEQ, having taken the position that some modifications of NEPA were necessary in order to preserve the statute from large-scale assault, found itself under attack from environmentalists who opposed any amendment of the statute. At the end of 1972, environmental lobbyist Joseph Browder wrote in Nixon and the Environment that Council members had become

salesmen for White House programs to erode water pollution legislation, delay regulation of strip mining, speed up construction of environmentally unsound power plants, whitewash destructive Agriculture Department stream channelization policies, and even weaken the National Environmental Policy Act.⁸⁴

Browder may have overstated his case, but his views are symptomatic of the constituency problems confronting CEQ. Such problems derive from the Council's position as advisor to the President. To preserve its entry to executive-level councils, the Council must be a "team player." It has adopted the view that it cannot trumpet its policy triumphs, nor adopt tough public adversary stances concerning particular agency projects. In the words of one staff member, it has adopted the view that more could be achieved through the use of "molasses" than through the use of "vinegar," for it views private encouragement as more functional than public castigation in promoting environmental consciousness on the part of federal agencies.⁸⁵

By drafting proposed legislation and shepherding it through the executive clearance process, the Council has had a degree of success in influencing executive environmental policy. But because most of its impact is a function of behind-the-scenes advising, the Council has not always been credited for its achievements. Furthermore, since the legislative proposals it supports publicly are the end product of negotiations with executive agencies having a lesser commitment to environmental protection, the CEQ is often compared unfavorably to legislators who introduce legislation that is perceived as being stricter than the Administration proposals which the CEQ must defend.

In promoting environmental policy concerns within the Executive Branch, the CEQ must overcome considerable obstacles. First, because many current environmental problems are the by-products of the actions of mission-oriented agencies, many of the CEQ's recommendations for reducing adverse environmental impacts must necessarily challenge the manner in which existing agencies perform their missions. Compared to the mission agencies whose actions it wishes to challenge, the CEQ can muster few resources, in the form of clientele and congressional supporters, to support its point of view.

Second, many of the programs which the CEQ is likely to advocate, especially those dealing with water pollution, require massive expenditures on the part of the federal government. Such proposals must compete for the federal dollar with other programs which confer much greater political benefits on their backers. Further, this point is not lost at OMB.

Third, societal awareness of envirdonmental problems is a relatively new phenomenon. It is reasonable to suppose that the environmental concern and value orientation of the CEQ is not shared by all individuals within the Executive Office. For executive decision makers, increases in rates of unemployment or inflation are far more immediately disturbing than rising levels of air or water pollution. Furthermore, to the extent that knowledge is a basis of power, for those policy areas in which the state of the art in environmental evaluation is not well developed, the basis for CEQ's policy expertise is reduced and its influence thereby lessened.

B. CEQ in the White House Policy Environment: A Structural View

Although the Council on Environmental Quality is designed to advise the President on environmental matters, the occasions for personal contact between the three-man Council and the President have been few. (Of course, as the Watergate hearings have illustrated, a lack of direct [3 ELR 50062] contact between the President and his titular advisors has been the rule rather than the exception in this period.) In the three years of its existence, the Council has met only twice with the President, both times on the occasion of the presentation of the annual CEQ report.⁸⁶ Russel Train's contacts with the President, however, have been somewhat none frequent, particularly in connection with his work on international conventions and bilateral agreements.

The Council, in its routine work, was three steps removed from the President during his first term. Its primary conduit to him was John Whitaker, the presidential assistant principally responsible for environmental matters. Whitaker, in turn, reported to John Enrlichman, then Director of the Domestic Council staff, and Ehrlichman reported directly to the President. One source within the Council states that Whitaker had the final word on 95 percent of the matters that the Council was concerned with, but another said that when the CEQ's views on a prospective policy choice were submitted to Whitaker, the Council would not know at what level — Whitaker, Ehrlichman, or the President — the policy choice would be made.

Whitaker was generally considered by the Council staff to be an equitable administrator. One staff member described him as "very fair …. He generally would give a ruling which the parties would regard as a fair application of the President's priorities to the situation."⁸⁷ In those instances where the Council was unhappy with a Whitaker decision, it had the option of contacting Ehrlichman directly, and it ultimately could write a memo specifically directed to the President's attention. But writing directly to the President was a last resort, for the Council had little political leverage within the White House.

Whitaker assumed a sub-Cabinet position in the Interior Department in early 1973, at about the same time that the President reorganized his office to create three "super-counselor" positions. These changes had the effect of placing between CEQ and the President Secretary of Agriculture Earl Butz, a man whose views on environmental matters are probably close to those of the Commerce Department.⁸⁸ In the wake of the Watergate scandal, however, the super-counselor system has been abolished, and at present the lines of communication within the White House are unclear.

C. CEQ in the White House Policy Environment: A Process View

At CEQ's inception in early 1970, considerable executive-level concern existed for environmental matters. Indeed, there was a sense of urgency in the President's first annual message on the environment. "The time has come when we can wait no longer to repair the damage already done, and to establish new criteria to guide us in the future."⁸⁹ The sense of urgency was present as well in the President's message six months later accompanying the CEQ's first annual report:

The recent upsurge of public concern over environmental questions reflects a belated recognition that man has been too cavalier in his relations with nature. Unless we arrest the depredations that have been inflicted so carelessly on our national system — which exist in an intricate set of balances — we face the prospect of ecological disaster.⁹⁰

In his introduction to the first CEQ report, the President summarized his environmentally protective actions of the first six months of 1970. These included executive orders and legislative proposals dealing with marine pollution and a reorganization plan for improving environmental management. During the latter half of 1970, the administration undertook additional environmentally protective actions, many of which involved CEQ. However, as a new entity operating under severe budget and staff constraints,⁹¹ CEQ, in the words of one newspaper correspondent, was "overruled, unheeded or unconsulted (in one degree or another)" on a number of major federal environmental actions.⁹²

CEQ's influence in the White House became most evident to the general public in early 1971, when at its behest, the President terminated construction of the controversial Cross-Florida Barge Canal.⁹³ This decision, based in part on information developed by private environmental groups, suggests the important added access to executive decision making provided to such groups by the CEQ. Whatever satisfaction environmental activists derived from the President's action on the Canal, however, was quickly dissipated. Within six months, [3 ELR 50063] President Nixon was to preside at opening ceremonies for the equally controversial Tennessee-Tombigbee Waterway.⁹⁴

Early 1971 was marked by many executive initiatives designed to protect the environment. CEQ considers the period the high-watermark of its legislative success. But by summer 1971, the Administration's attitude concerning environmental problems had changed markedly.⁹⁵ Troubled by national economic problems, and perhaps by industry complaints that the country was moving too far and too fast on environmental matters, the Administration consciously began to moderate its environmental rhetoric. By the time of the second annual CEQ report, the new tone was evident. In his introduction to the report, the President wrote:

We must recognize that the goal of a cleaner environment will not be achieved by rhetoric or moral dedication alone. It will not be cheap or easy and the costs will have to be borne by each citizen, consumer and taxpayer. How clean is clean enough can only be answered in terms of how much we are willing to pay and how soon we seek success. The effects of such decisions on our domestic economic concerns — jobs, prices, foreign competition — require explicit and rigorous analyses to permit us to maintain a healthy economy while we seek a healthy environment. It is essential that we have both. It is simplistic to seek ecological perfection at the cost of bankrupting the very tax-paying enterprises which must pay for the social advances the nation seeks.

We must develop a realistic sense of which it will cost to achieve our national environmental goals and choose a specific level of goal with an understanding of its costs and benefits.⁹⁶

Because 1972 was an election year, consideration of CEQ's initiatives within the White House was undoubtedly colored by electoral factors; the Council had much less success than in 1971 in clearing its legislative proposals for the President's environmental message. The Council made numerous suggestions for legislation, but these were pared down by OMB, on grounds that many proposals were unnecessary since a large number of the Administration's 1970 and 1971 proposals were still bogged down in Congress. One Council staffer interviewed downplayed the importance of electoral factors, however, contending that though many CEQ proposals did not survive the clearance process, the CEQ proposals that fell prey to it tended to be lower-priority items which had not received as much staff attention as more successful, high-priority projects.

The year 1972 was also marked by controversy over "censorship" of CEQ's Third Annual Report. When the report was issued, three chapters which the Council had proposed for inclusion had been deleted. The ensuing controversy over the missing chapters produced an unusual arrangement in which newsmen were permitted to examine drafts of the excised chapters at CEQ's offices.⁹⁷ The deleted chapters apparently required considerable revision. When word came from John Whitaker and OMB that revisions were necessary, CEQ assented, and asked that publication be delayed accordingly. Although the Council argued that excision of the chapters would be misinterpreted by the public, its view did not prevail, and the chapters were excluded.

In general, while most of the chapters in the annual reports have been well received and have been viewed as objective environmental studies, the chapters on federal activities have tended to be laudatory reports on a wide range of Administration environmental actions. Nevertheless, the controversy over the deletion of the three chapters from the Third Annual Report represents another episode in the life of CEQ that sheds light on the lack of realism in the Dingell subcommittee's view of the CEQ it proposed. By establishing CEQ in the Executive Office of the President, the subcommittee must have known that the annual report would be subjected to executive review procedures. It appears, therefore, that the subcommittee was being unduly optimistic when, in its discussion of the annual report in its report on the House version of NEPA, it emphasized the importance of a frank appraisal in the annual report of environmental conditions, even if there should be disagreement over the appraisals within the government:

It is not the purpose of your committee to require that this report be the type which so often is submitted by advisory groups, however august and competent they may be. Such reports are often reduced to vague and reassuring generalities, since it is only upon generalities that all members can agree. The stakes are too apparent, for the report of the Council to be anything less than the best that each member of the Council can produce; if honest disagreement occurs within the Council, your committee would hope that this would not be smothered in an attempt to show consensus where no consensus actually exists.⁹⁸

The CEQ as a "Team Player". The Cross-Florida Barge Canal termination decision of 1971 suggests the considerable impact a "team-playing" CEQ can have within the White House. The delaying of the Tocks Island Dam project, the DOT Secretary's decision against the controversial Minarets Road in California, and the promulgation of an executive order governing predator control all [3 ELR 50064] reflect favorably upon the Council's influence. Two other incidents, however, suggest how the CEQ can be overruled when its goals conflict with those of other, more influential White House advisors. In the President's third annual environmental message, the Council had included a proposal for a presidential directive forbidding issuance of permits for dredging and filling of coastal wetlands unless developers could show cause why they could not build elsewhere. The proposal was apparently dropped by OMB at the insistence of the Commerce Department. Environmentalists within the Administration believed that the Department's opposition derived from its concern that the burden imposed by the directive would be too hard for developers to bear, and that the order would be unfair to businesses that might need wetlands for development.⁹⁹

A second example of the CEQ's limited influence within the White House can be traced to a controversy over clearcutting in the national forests.¹⁰⁰ In January 1972, the Council drafted a proposed executive order governing clearcutting in the national forests. The executive order was routinely circulated through the executive branch for comments of executive agencies. The Commerce Department, in turn, contacted representatives of the timber industry to obtain their views. The industry became concerned when it learned that clearcutting would be banned in areas of "scenic beauty." It feared the judicial impact of this proviso, seeing it as an invitation for groups and individuals opposed to clearcutting to obstruct proposed federal timber sales while a determination of scenic beauty was made.

Alarmed, the industry requested a meeting with Administration officials. Following two meetings of high Administration officials, CEQ decided not to ask President Nixon to sign the executive order. The decision was undoubtedly influenced by the opposition of many western governors and most western Senators and Representatives to the proposal. Newspaper reports indicated that executive branch officials were concerned about the order's impact on timber company profits, timber supplies, and support for Republican candidates in an election year.¹⁰¹

Although the Cross-Florida Barge Canal decision suggests that environmentalists may have gained somewhat greater access to executive decision making, the controversy over the proposed clearcutting order also demonstrates the ready access to the White House advisory process which a major industry can command. The clearcutting controversy reveals, moreover, the mix of political and ecological considerations that enter into natural resource decision making.

While it might be suggested that the CEQ's influence within the executive branch has diminished since its inception because of decreased Administration interest in environmental matters and increased concern with inflationary pressures and the so-called energy crisis, such a conclusion can only be reached with considerable uncertainty.For while new Administration environmental initiatives do not seem to flow as quickly as once they did, some concern for environmental impacts has taken root in the federal bureaucracy, although the pace may not satisfy many environmentalists and many administrative decisions may still give insufficient weight to environmental values. This rising environmental consciousness has been accompanied by a growing recognition that the CEQ is a useful source within the executive branch of guidance and information concerning environmental decision making. In fact, in its advisory capacity, the CEQ is perhaps in a better position to promote environmental considerations than if it itself were a line environmental protection agency. It is viewed within the Administration as an executive branch staff organization working to improve ongoing agency procedures. In the "mission-oriented" agencies, environmentalist elements waging inhouse fights to improve decision making often find the Council a welcome source of aid and comfort outside the agency, yet within the executive branch.

The CEQ and the Public

A. Promotion of Citizen Access to Government

In its role as coordinator of federal environmental policy, the CEQ has used guidelines, memoranda, and informal meetings to promote compliance with NEPA.While the Council feels that these techniques have been useful, it has had few resources to muster to persuade a reluctant agency to comply with the Act. Its presidential advisory relationship has been fragile, its budget has been reviewed by a potentially hostile committee, it has had few rewards to offer potential constituents, and it has had no sanctions to impose. For these reasons, citizen activists have been key allies of the Council in promoting NEPA compliance.

The Council has repeatedly spoken in glowing terms of the important role citizen environmentalists can play in assuring environmentally sound administrative decision making. All the Council's annual reports have endorsed citizen participation in government decision making. In its first report, in a chapter devoted solely to citizen participation, the CEQ noted NEPA's mention of a role for the citizenry in §§ 101(c), 102(2) (C) and 102(2) (F).¹⁰²

[3 ELR 50065]

In its second report, the Council stated:

Citizen litigation has not only challenged specific government and private actions which were environmentally undesirable. It has speeded court definition of what is required to Federal agencies under environmental protection statutes. The suits have forced greater sensitivity in both government and industry to environmental considerations. And they have educated lawmakers and the public to the need for new environmental legislation.¹⁰³

The Council's third annual report echoed the second, noting that "… citizen lawsuits continue to provide a check on agency compliance with NEPA and to resolve important questions about its interpretation."¹⁰⁴ It added, moreover, that the willingness of citizens to sue to vindicate NEPA and the vigilance of the courts in enforcing the Act help to ensure that the agencies take their new tasks seriously."¹⁰⁵

While the CEQ has had reservations concerning some court interpretations of NEPA, and has opposed general federal legislation permitting class action environmental lawsuits "for any unreasonable impairment of the environment,"¹⁰⁶ it nevertheless has much to owe citizen legal initiatives and has supported broad citizen standing to litigate under NEPA and citizen suit clauses to enforce federal environmental legislation. In particular, it has pushed for the inclusion of citizen suit provisions in Administration-sponsored water pollution, noise control and toxic substances bills. The Council has recognized the importance of public-interest environmental law firms in advocating retention of their tax-exempt privileges under the Internal Revenue Code. On October 9, 1970, the Internal Revenue Service announced that it was reconsidering its policy concerning the deductibility of contributions to public interest law firms. When he learned about the IRS reevaluation of its tax-exemption policies, the CEQ Chairman spoke out strongly on behalf of the public interest law firms:

Private litigation before courts and administrative agencies has been and will continue to be an important environmental protection technique supplementing and reinforcing Government environmental protection programs.

… [I]f it were not for the plaintiffs' concern for the protection of our collective environment, and the availability of contributions which receive charitable contribution status under our tax laws to support the costs of litigation, this important private supplement to our governmental efforts would be seriously curtailed.¹⁰⁷

CEQ's strong show of support for the firms, a public action unusual for a Council opting for a quiet advisory role, appears to have played an important part in IRS' reversal of its initial decision to revoke the firms' tax exempt status.¹⁰⁸

The Council has also more recently endorsed legislation permitting tax-exempt environmental groups to spend up to 20 percent of their funds in lobbying activities. Under existing IRS regulations, such groups can lose their tax-exempt status if a "substantial part" of their activities consists of "carrying on propaganda or attempting to influence legislation."¹⁰⁹ Because of the vagueness of the term "substantial," organizations are often unsure of the precise limits placed on their activities. In his testimony before the House Ways and Means Committee that the existing IRS regulations "have the practical effect of discriminating against [tax-exempt organizations]," the CEQ Chairman observed that unlike the financially strapped public interest groups, business and administrative agencies have "open access" to the Congress.¹¹⁰

B. CEQ, the Public and the Courts

CEQ, through its review of procedures and impact statements, has sought to promote administrative implementation of NEPA. While its efforts have sometimes been successful, its inability to bring about executive agency action consonant with what it has deemed to be the requirements of the Act has produced a flurry of lawsuits initiated by citizen activists. Although the CEQ staff has more often than not cheered judicial decisions construing NEPA, not all court decisions favoring environmentalist plaintiffs have coincided with CEQ's view of the statute. Though some decisions construing NEPA have drawn heavily on CEQ's guidelines, a few decisions have directly contradicted the Council's interpretation of agency obligations under NEPA.¹¹¹

Of particular interest at this juncture are those four suits in which the absence of administrative regulations for implementing NEPA, or the promulgation of regulations insufficiently implementing NEPA, led to court decisions faulting agencies for their lack of procedural [3 ELR 50066] compliance with the Act. These decisions favorable to environmentalists were the end product of recalcitrant agencies' noncompliance with an Act whose general procedural message was clear: environmental considerations would have to be weighed at all agency decision-making stages, and agencies would have the responsibility affirmatively to evaluate the environmental consequences of their activities. In all four instances, environmentalist lawsuits were a vital supplement to CEQ efforts to promote implementation of NEPA.

Calvert Cliffs' Coordinating Committee v. Atomic Energy Comm'n. The Calvert Cliffs' case¹¹² was brought by a coalition of major environmental organizations who prior to the suit had unsuccessfully petitioned the AEC to revise its proposed guidelines for implementing NEPA.¹¹³ In their lawsuit the environmentalists included four major allegations concerning the AEC's implementing regulations. First, they contended that the AEC refused to review independently the nonradiological environmental impact of nuclear power plant operations upon which state or federal pollution control agencies had already passed judgment. Second, they opposed the AEC's refusal to require its review boards to examine nonradiological environmentalfactors, unless such factors were raised by outside intervenors or AEC staff members. Third, they contested the AEC's refusal to consider nonradiological factors in the licensing for construction of those power plants for which public hearing notices had been published in the Federal Register before March 4, 1971. Fourth, they attacked the AEC's absolute refusal to consider backfitting, construction halts, or alteration of plans for nuclear facilities which had been granted construction permits, but not operating permits, prior to NEPA's enactment.

Taken together, the AEC regulations ran counter to the letter and spirit of NEPA — they delayed implementation of the Act, unduly limited the number of ongoing projects to which the Act applied, and ignored the requirement that environmental factors must be considered throughout the entire decision-making process. The Court of Appeals for the D.C. Circuit, in overturning the regulations in July 1971, stated that the Commission's "crabbed interpretation" of NEPA "made a mockery of the Act."¹¹⁴

The D.C. Circuit's condemnation of the AEC stands in sharp contrast to the CEQ's uncritical public position regarding the Commission's rules and regulations. The Council's public acquiescence to the Commission's actions was undoubtedly influenced by AEC's concession, in its § 103 statement, that nothing in the Atomic Energy Act of 1954 precluded Commission compliance with NEPA. If the Commission had taken the position that the 1954 act did preclude compliance, and would therefore require modification, this contention might have precipitated a serious conflict between supporters of NEPA and the Joint Committee on Atomic Energy.

At the Dingell subcommittee oversight hearings, prior to the Calvert Cliffs' decision, Chairman Train called the AEC's actions under NEPA a "responsive development."¹¹⁵ He stated in addition:

I have identified those [agencies] that we think have been doing an exceedingly good job of support as far as meeting procedural requirements are concerned … one is the Atomic Energy Commission.¹¹⁶

One month earlier, Dr. Gordon J. MacDonald, another member of the Council, stated before the Atomic Industrial Forum that

AEC has by far the best record of any federal agency in submitting environmental reports under NEPA. The AEC reports are the most complete, the best thoughtout, and the most sophisticated of any agency.¹¹⁷

Although the Council publicly acquiesced to the Commission's rules, it was not completely pleased with three of the four rules called into question in Calvert Cliffs".¹¹⁸ While the Council agreed with the AEC's contention that the Commission could accept at face value the water quality certifications issued by water pollution control agencies, it felt that the Commission should not absolutely refuse to consider backfitting, construction halts, and alteration of plans for plants granted construction permits, but not operating permits, prior to NEPA's enactment. The Council would also have liked to see the rules take effect earlier than March 1971.

The question of the consideration of environmental matters by the licensing boards was also raised by the Council.Although making mention of it, CEQ did not press the AEC as vigorously on this matter as it did on the backfitting of nuclear plants. Definition of the role of the licensing boards was part of the larger issue of merging regulatory agencies' obligations under NEPA with their obligations under the Administrative Procedure Act,¹¹⁹ a matter with which the CEQ was still wrestling at the time the AEC's pre-Calvert Cliffs' regulations were published in final form in December 1970. By December 1970, the CEQ had largely concluded that, given the [3 ELR 50067] general air of uncertainty as to the specific procedural requirements of NEPA, the AEC rules were probably the best that they could expect from the Commission, and they did not have any "serious objections" to them.¹²⁰

The AEC now concedes that until the time of the Calvert Cliffs' decision, it had not done much to implement NEPA, its protestations to the contrary notwithstanding.¹²¹ The citizen-initiated suit left a major mark on the Commission and positively influenced its relations with the CEQ. As one CEQ staffer noted:

After the decision, the change in attitude was remarkable. They came in within days with hat in hand and said, "Help us draft some regulations that will let us get on with our work." … Internally, one of the things the Calvert Cliffs' decisions did was to make the AEC pay attention to the Council whereas to a large extent it didn't beforehand.¹²²

After the Calvert Cliffs' case was decided, the CEQ declined to reveal whether it had commented negatively to the AEC at the time the Commission was promulgating its regulations. At a hearing on the Calvert Cliffs' decision before the Senate Interior Committee, Chairman Train continued to speak positively of the AEC.

Senator Gravel: … Mr. Train, can you explain to me and the committee how we got into a situation where it took a court to find out an error of this magnitude, particularly when we have an agency such as yours which is funded to monitor the National Environmental Policy Act … ? Mr. Train: … Throughout that period [early 1970] it was our belief that we were making constant progress in our discussions with the Commission on this overall problem…. I think that the Commission has been moving, particularly recently, very effectively to give full implementation to the requirements of the act. It is true that in the case before us the court decided … that AEC had not met its full responsibilities under the act.I personally would not want to prejudge that AEC would not have reached this same general view itself.¹²³

At the conclusion of the hearing, Senator Jackson submitted written questions to the CEQ concerning its views of the AEC's pre-Calvert Cliffs' procedures:

Would you supply for the record the Council on Environmental Quality's views on the adequacy of the AEC initial actions to implement the NEPA subsequent to January 1, 1970, and a comparison of those actions to the actions taken by other agencies. Did the Council on Environmental Quality or its staff review the subject proposed AEC regulations? Did they provide any guidance to the AEC with regard to deficiencies in the AEC regulations?¹²⁴

The CEQ responded to these blunt questions with generalities:

Generally the Council on Environmental Quality took a quite positive view of AEC's response to NEPA. At hearings before the House Merchant Marine and Fisheries Committee on implementation of NEPA, Chairman Train described AEC's policy statement of December 4, 1970 [the pre-Calvert Cliffs' regulations] as "a very responsive development." On another occasion Dr. Gordon MacDonald described AEC's environmental reports as "the most complete, the best thought out, and the most sophisticated of any agency." ….

The CEQ staff held a number of meetings with AEC staff on AEC's early policy statements and procedures and indicated a desire that AEC take the broad view of its NEPA reponsibilities ultimately adopted by the Commission. The CEQ staff reviewed the proposed AEC regulations … and, as stated, found them to be "a very responsive development."¹²⁵

Congressman Dingell, like the D.C. Circuit, was not so sanguine about the AEC regulations. When the AEC's contemplated delay in implementing NEPA was pointed out by environmental lawyer Edward Berlin at the December oversight hearings, Dingell stated that he would want the matter brought to his attention at his office so that he could attend to it personally.¹²⁶ The Dingell subcommittee was to rebuke the AEC in a report on the oversight hearings published just prior to the Calvert Cliffs' decision.¹²⁷

Greene County Planning Board v. Federal Power Commission. A second proceeding in which agency regulations implementing NEPA were put to a test was Greene County Planning Board v. Federal Power Commission. In GreeneCounty,¹²⁸ the Second Circuit ordered the FPC to prepare its own draft environmental impact statements for circulation to agencies and the public. Prior to the decision, the routine FPC practice was to circulate for comment the draft environmental statements prepared by applicants for Commission licenses. In ordering the Commission to assume responsibility for draft impact [3 ELR 50068] statement preparation, the Greene County court observed that statements prepared by applicants are likely to be comprised of "self-serving" assumptions.¹²⁹ The court observed that the impact statement which was the subject of the litigation had described a 35-mile-long transmission line, being built in a 150-foot-wide corridor, as having "no significant adverse impact on the environment."¹³⁰

The FPC's pre-Greene County reliance on applicants' draft statements stood in marked contrast with the draft environmental statement procedures of the AEC. The AEC, too, had always required license applicants to submit draft environmental statements. But rather than being circulated, these statements were analyzed by AEC staff prior to preparation and circulation of a staff-authoried draft statement.¹³¹ By refusing to prepare its own statements, and by relying on those of applicants, the FPC was shirking the responsibility imposed on it by NEPA of conducting environmental evaluations.

Prior to the Greene County case, the CEQ had privately expressed to the FPC its dissatisfaction with the Commission's regulations implementing NEPA. In a November 9, 1970 memorandum to Gordon Gooch, General Counsel of the Federal Power Commission, CEQ General Counsel Timothy Atkeson observed:

We would like to see the FPC staff prepare a detailed draft statement as to the application's environmental impact in contested as well as noncontested applications…. We need the independent objectivity of a draft statement prepared by your staff ….

Furthermore, as a matter of law, Section 102(2)(C) NEPA appears to require that the detailed statements circulated for the comments and views of appropriate state and local agencies which are authorized to be the statement of the responsible Federal agency, rather than the applicant.¹³²

Atkeson added that if the Commission itself did not prepare a statement, there was no way of knowing whether the discussion of alternatives in the impact statement was adequate.¹³³ He added in this context that the Second Circuit decision in the Storm King I case, decided five years previously, had reversed an FPC licensing decision in large measure because the Commission had failed to fulfill its obligations under the Federal Power Act to evaluate alternative site locations in a licensing proceeding.¹³⁴

In discussions with CEQ in December 1970, FPC forcefully argued against assuming responsibility for preparation of a draft environmental impact statement.¹³⁵ CEQ, in response, felt that the FPC argument was "entitled to a hearing," although it disagreed with the agency's contention.¹³⁶ In its revised guidelines of April 1971, CEQ inserted language that permitted the FPC to continue its practice of relying upon the applicants' environmental impact statements.¹³⁷ By December 1971, when CEQ met again with the FPC, the Greene County litigation had begun, and CEQ advised FPC that it felt the Commission would lose the case. When the FPC lost at the circuit level, it requested the Solicitor General to appeal the case to the Supreme Court. CEQ advised the Solicitor General that the appeal, if taken, would be unsuccessful. Ultimately, the Supreme Court denied certiorari.

Ely v. Velde. In Ely v. Velde,¹³⁸ environmentalists challenged failure of the Justice Department's Law Enforcement Assistance Administration to comply with NEPA. The suit was brought becase LEAA had contended that it did not have to prepare an environmental impact statement for its law enforcement assistance grants to states. The agency argued that it was obligated by the Safe Streets Act of 1968 to give grants to states once certain requirements, none of which was environmental, were met. Since its adherence to the Safe Streets Act mandate was required, and since adherence to NEPA was discretionary, LEAA argued, it was not required to prepare impact statements.

The District Court for the Eastern District of Virginia, believing that LEAA had acted in good faith, accepted this position. But the Fourth Circuit Court of Appeals reversed the lower court decision, citing Calvert Cliffs' as a precedent for interpreting NEPA broadly and for requiring strict agency compliance with it. It rejected LEAA's narrow interpretation of its obligations, and ordered the agency to comply with NEPA's procedural requirements.

LEAA had had the opporunity to argue before Congress that it was not bound by NEPA.Under § 103 of NEPA, LEAA, along with all other executive agencies, was charged with the responsibility to report any statutory authority which might preclude it from complying with NEPA. Yet in the Dingell subcommittee's compilation [3 ELR 50069] of the § 103 statements submitted by executive agencies, no statement by the LEAA or by the Justice Department can be found.¹³⁹

CEQ, prior to the lower court decision, had believed that LEAA was subject to NEPA.¹⁴⁰ It had written a letter to the agency, indicating that it had received neither a § 103 statement nor a set of NEPA-implementing procedures. The LEAA responded by mailing to the Council a copy of the district court decision in Ely, with a note attached indicating that the note and court opinion together constituted LEAA's § 103 report.

CEQ did not immediately press LEAA further on the matter. However, the day the citizen-plaintiffs successfully appealed the unfavorable district court decision, CEQ said to LEAA, in effect, "We assume that we'll hear from you shortly concerning your implemention of NEPA's procedural requirements."¹⁴¹

Davis v. Morton. In Davis v. Morton,¹⁴² the Secretary of the Interior's approval of an Indian pueblo's leasing of its land for development was called into question. The approval had been given without preparation of an environmental impact statement. A district court decision in November 1971 supported the Interior Department's contention that it was not subject to the NEPA requirements for lease approvals of this kind. The Tenth Circuit in December 1972 reversed the district court decision, holding that Interior did have to abide by the NEPA requirements with respect to its leasing actions.

The question of whether the leasing actions fell within the domain of NEPA had been aired in the CEQ's review session with Interior.¹⁴³ At the review session, the Department argued the view that was to be upheld by the district court — namely, that NEPA did not apply to the Secretary's approval of Indian land leases. However, the CEQ did not press Interior very strongly on this issue, because, in the words of a CEQ staff member, "with a big agency like Interior, there are plenty of fish to fry and the Bureau of Indian Affairs [which had principal responsibility for overseeing the leases] wasn't even one of the biggest fish."¹⁴⁴ When the Tenth Circuit ruled against Interior, CEQ advised both the Department and the Solicitor General not to seek certiorari. Interior felt that for political reasons it had to ask the Solicitor General to seek Supreme Court review of the Tenth Circuit decision, but the Solicitor General denied the request and the Tenth Circuit decision went unchallenged by the government.

Summary and Conclusions

The foregoing analysis has described the CEQ's impact during its first three and one-half years. Certainly, CEQ has major accomplishments to its credit. But at the same time, one is struck by the "effectiveness dilemma" which CEQ constantly must face. One has trouble distinguishing CEQ activity that might represent compromise in pursuit of effectiveness from activity that might represent co-option of the CEQ by the Administration.¹⁴⁵

The CEQ often has been effective behind the scenes in obtaining modification of proposed agency actions. The CEQ staff itself feels that it has been an effective force for promoting attainment of environmental goals within this Administration. One measure is staff turnover, which until recently has been quite low. Where important Council and staff members have left, departure has been due more to alternative career goals than to dissastisfaction with the Council.

While the principal concern in this analysis has been the Council's role in overseeing the 102 process, its accomplishments in other areas should be mentioned. The Council has played an important role in promoting international environmental cooperation. It has worked to establish close, regular environmental ties with Japan, Mexico, Canada and the U.S.S.R. It has represented United States views at the Organization for Economic Cooperation and Development, at NATO's Committee on the Challenges of a Modern Society, and at the International Whaling Commission. The Council has also been active in international efforts to control ocean dumping and to protect endangered species.

Two-thirds of the Council's time is devoted to preparation of the President's environmental program and development of an annual environmental report. The Council has drafted and shepherded through the executive clearance process a wide range of legislative proposals, particularly in areas where little or no federal legislation existed. These include toxic substances, ocean dumping, national land use policy, power plant siting, noise pollution and strip mine controls. The Council's widely cited annual reports have discussed such matters as law and the environment, the economy and the environment, and environmental indices and forecasting. The evolution of the Council's annual reports over the past three years reflects the considerable rise in the sophistication of our understanding of environmental problems. In conjunction with preparation both of the annual reports and of the environmental program, the CEQ has commissioned research on such matters as land use control, integrated past management, toxic substances, strip mining, and the economic impact of pollution control. CEQ currently devotes one-quarter of its staff time [3 ELR 50070] to special studies. Twenty-five are in progress, at an estimated cost to CEQ of $600,000. These CEQ funds are supplemented with matching grants from other agencies.

The Council certainly has measurable achievements to which it may lay claim. But its failures should not be ignored — failures to have legislative proposals approved, to have proposed agency actions modified, and to have agencies develop sound NEPA-implementing procedures.

CEQ's emphasis on its advisory role and on broad policy questions has undoubtedly caused some outside observers of the federal government to question the Council's effectiveness when comparing it to federal entities whose views on particular projects must be made public. The creation of the Environmental Protection Agency in December 1970 marked the establishment of the second major exclusively "environmental" body within the federal bureaucracy. With a large decentralized staff over whose public comments on impact statements its Washington office has little control, the EPA soon gained acclaim for its public, environmentally based criticisms of federal projects. CEQ, with its policy of low-keyed in-house comments on impact statements, inevitably looked ineffectual when viewed in the light of EPA's public "activism."

CEQ has viewed the courts as allies in promoting implementation of NEPA, but in the public mind, CEQ may have been eclipsed when the courts captured the spotlight as apparently the most effective instrumentality for assuring the implementation of NEPA. Federal judges, through their public pronouncements and their ability single-handedly to enjoin projects, became clothed in a cloak of "activism" which could not be worn by CEQ.

The public activism of EPA and of the courts has adversely affected CEQ's relationship with many members of its natural constituency, the environmental community. It has, therefore, become freer in its criticism of federal agencies. Upon request, it now releases its impact statement comments to the public.¹⁴⁶ Since the Council is presently more inclined to "go public" than formerly, a political calculation now may enter the CEQ comment-writing process to a greater extent than it may have previously. The possibility of having a letter to an agency regarding a project made public may be taken into account when a decision is made whether to commit CEQ's view to print.

The first three years of the Council existence saw it carve out a substantial role for itself within the executive branch, with primary emphasis on its advisory relationship to the President. However, CEQ's recent policy of releasing its review comments would appear to represent a moderation of CEQ's initial stance concerning non-criticism of federal agencies in public. CEQ has begun to realize, it seems, that to a limited extent it can publicly criticize agencies without impairing its effectiveness as a White House advisor. Hopefully it will be allowed to continue this healthy development, despite staff departures and the predations of a hostile OMB. At this late date, weakening rather than strengthening CEQ's role would destroy the functional balance of executive environmental policy-making that now exists.

1. 42 U.S.C. § 4321 et seq., Pub. L. No. 91-190, 83 Stat. 852, ELR 41009 (January 1, 1970.

2. ELR 41009, 41011. Most of the Council's mandate is found in Title II of NEPA. The responsibility to conduct ecological systems studies mandated by § 204(5) was shifted to the Environmental Protection Agency in December 1970 See 5 U.S.C. Reorg. Plan of 1970 No. 3. CEQ's research responsibility was scarcely diminished, however, because it still retained responsibility for conducting environmental quality studies.

CEQ and agency action in fulfillment of the responsibility to develop methods to assure appropriate consideration of unquantified environmental amenities (§ 102(2)(B)) is not a major concern of this article. Overall, there appears to have been little response tothis congressional mandate. Section 102(2)(B) duties may assume new importance, however, in light of Judge Bue's decision in Sierra Club v. Froehlke, __ F. Supp. __, 3 ELR 20248 (S.D. Tex. 1973). See discussion in F. Anderson, NEPA in the Courts 264 (1973) [hereinafter cited as Anderson]

The Council also is given statutory authority in the Environmental Quality Improvement Act of 1970 (42 U.S.C. §§ 4371-4374 et seq., Title II of Pub. L. No. 91-224, 84 Stat. 91), which establishes an Office of Environmental Quality in the Executive Office of the President. The Office has never had an institutional identity of its own, and its responsibilities and authorizations have been assumed by CEQ.

3. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972); Greene County Planning Bd. v. Federal Power Comm'n, 455 F.2d 412, 2 ELR 20017 (2d Cir.), cert. denied, 41 U.S.L.W. 3184 (Oct. 10, 1972); Ely v. Velde, 321 F. Supp. 1088, 1 ELR 20082 (E.D. Va.), rev'd, 451 F.2d 1130, 1 ELR 20612 (4th Cir. 1971); Davis v. Morton, 335 F. Supp. 1258, 2 ELR 20003 (D.N.M. 1971), rev'd, 469 F.2d 593, 2 ELR 20758 (10th Cir. 1972).

4. See Anderson, supra note 2, at 11.

5. 35 Fed. Reg. 4247, ELR 45003 (March 5, 1970).

6. See § 3(h) ELR 45003, 45004.

7. Source of information is interview with CEQ staff.

8. See Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 ELR 50035 passim.

9. See discussion in Anderson, supra note 2 at 9-10.

10. Hanly v. Mitchell, 460 F.2d 640, 6 ELR 20216, 20217 (2d Cir. 1972) (Feinberg, J.).

11. City of New York v. United States, 337 F. Supp. 150, 2 ELR 20275, 20276 (E.D.N.Y. 1972) (Friendly, J.).

12. 35 Fed. Reg. 7390 (May 12, 1970), ELR 46001.

13. Section 105, ELR 41009, 41010.

14. Hearings on Federal Agency Compliances with Section 102(2)(C) and Section 103 of the National Environmental Policy Act of 1969 before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 91st Cong., 2d Sess. (December 1970) [hereinafter cited as Dingell 1970 Oversight Hearings].

15. 36 Fed. Reg. 1398 (January 28, 1971).See discussion in Comment, New Guidelines Proposed by Council on Environmental Quality for Procedures to be Used by Agencies in the Preparation of Environmental Impact Statements under the National Environmental Policy Act, 1 ELR 10025 (February 1971).

16. 36 Fed. Reg. 7724 (April 23, 1971), ELR 46049.

17. The memo is reprinted in Hearings on the Operation of the National Environmental Policy Act of 1969 before the Senate Comm. on Public Works and the Senate Comm. on Interior and Insular Affairs, 92d Cong., 2d Sess. 40, 41 (1972) [hereinafter cited as Joint 1972 NEPA Hearings]. The three cases referred to are Environmental Defense Fund v. Corps of Engineers (Gillham Dam), 325 F. Supp. 728, 1 ELR 20130 (E.D. Ark. 1971); Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 1 ELR 20207 (D.D.C. 1971); and Citizens to Preserve Overton Park v. Volpe, 309 F. Supp. 1189 (W.D. Tenn.), aff'd, 432 F.2d 1307, 1 ELR 20053 (6th Cir. 1970), rev'd, 401 U.S. 402, 1 ELR 20110 (U.S. 1971).

18. 38 Fed. Reg. 20549 (August 1, 1973).

19. Senate Comm. on Interior and Insular Affairs, National Environmental Policy Act of 1969, S. Rep. No. 91-296, 91st Cong., 1st Sess. 5 (July 9, 1969) [hereinafter cited as S. 1075 Report],

20. Id. at 8-9.

21. This was one element of the "Muskie-Jackson Compromise" concerning the form of NEPA. See Anderson, supra note 2, at 7 and the dissertation sources cited therein at 4, note 6.

22. The theme of public involvement was not well developed in the legislative history. However, the S. 1075 Report, supra note 19, at 8, did comment that in past environmental decision making, "Public desires and aspirations were seldom consulted." And Senator Jackson, in comments on the Senate floor [115 Cong. Rec. S17450 (daily ed. December 20, 1969)] stated that environmentally impacting decisions must be made "in the light of public scrutiny." The theme of public involvement was made quite explicit, however, in § 2 of Executive Order 11514, supra note 5.

23. See Comment, Agencies' Revised NEPA Procedural Compliance Guidelines near Completion, Months after Deadline for Submission to CEQ, 1 ELR 10167 (October 1971).

24. Supra note 3.

25. The CEQ memo is reprinted in Joint 1972 NEPA Hearings, supra note 17, at 43.

26. Id. at 44, 45.

27. Id. at 45.

28. Id. at 47. The eight points were:

1. NEPA is an environmental full disclosure law.

2. NEPA mandates a systematic balancing analysis of environmental and non-environmental costs and benefits.

3. Agencies cannot sit back and resolve environmental issues others may raise, but must take the initiative in probing environmental considerations.

4. Agencies must conduct research into the environmental impact of their actions.

5. Agencies must include economic data in their NEPA-mandated analyses.

6. In choosing a particular course of action, agencies must consider less environmentally damaging alternatives.

7."The full range of responsible opinion" on environmental effects must be treated in an impact statement.

8. Courts will not act to overturn substantive administrative judgments on their merits. But if the agency's decision-making is procedurally deficient, then the courts have the responsibility to enjoin administrative actions until compliance has been achieved.

29. Id. at 45.

30. ELR 46162.

31. Comptroller General of the United States, Report to the Subcomm. on Fisheries and Wildlife Conservation, House Comm. on Merchant Marine and Fisheries, Improvements Needed in Federal Efforts to Implement the National Environmental Policy Act of 1969 (May 18, 1972) [hereinafter cited as GAO Report].

Section 102(2) (C). ELR 41009, 41010. Authority can be found however, in § 204(3).

32. S. 1075 Report, supra note 19, at 25.

33. Interview with the author.

34. Id.

35. Alm moved to the Environmental Protection Agency in July 1973.

36. William Matuszeski, with a background in urban planning and law, reviews land use matters. Diane Donley (regional planning) reviews transportation matters. William Direcks (formerly with AEC) reviews nuclear energy, space and defense matters, while Grace Reppert and Stephen Sloan (forestry, resources management) reviews water resource development projects. Robert Lunt (agricultural economics) reviews public lands and agriculture questions. Stephen Gage reviews energy matters, and senior staff member Steven Jellinek has overall coordinating responsibility. Some changes in responsibility may have occurred, since this article went to press.

37. 102 Monitor 3:4 (May 1973) at 103.

38. Dingell 1970 Oversight Hearings, supra note 14, Part I, at 58-59.

39. CEQ, Environmental Quality — The Second Annual Report of the Council on Environmental Quality 26 (1971) [heeinafter cited as CEQ Second Annual Report].

40. Staff memo at 3. (In author's files.)

41. Supra note 30.

42. Id. at 47.

43. Id. at 46. CEQ maintains that the GAO was incorrect in stating that this was the CEQ approach.

44. Id. at 3.

45. See Dingell's opening statement in Dingell 1970 Oversight Hearings, supra note 14, Part I at 1-2.

46. Id. Part II, at 7-9.

47. Id. Part I, at 62-63.

48. Id. at 65.

49. Section 2(b), ELR 45003 at 45004. CEQ Chairman Russell Train is generally given the credit for having this language include in the executive order.

50. See note 22 supra.

51. Id. at 66.

52. Id. at 67.

53. S. 1075 Report, supra note 19.

54. Section 3(d), ELR 45003, 45004.

55. Hearing on S. 1075, S. 237 and S. 1752 before the Senate Comm. on Interior and Insular Affairs, 92d Cong., 1st Sess. 120 (April 1969) [hereinafter cited as S. 1075 Hearing].

56. Id. at 66-67.

57. Dingell 1970 Oversight Hearings, supra note 14, Part I, at 56.

58. Id. at 50.

59. House Comm. on Merchant Marine and Fisheries, Administration of The National Environmental Policy Act, H. Rep. No. 92-316, 92d Cong., 2d Sess. 18 (1972) [hereinafter cited as DingellOversight Report].

Recognition of the consequences of the CEQ's opting for the advisory position can be found in the legislative history of section 309 of the Clean Air Act of 1970 (42 U.S.C. 1857; P.L. 91-604). The Senate version of the provision (§ 310 of S. 4358) had the Council make public its recommendation to the President concerning environmentally unsatisfactory actions that had been referred to it by the Secretary of the Interior. This provision was reported by the Senate Public Works Committee in September 1970 (S. Rep. 91-1196, September 17, 1970). By December 1970, when the conference committee reported out the Clean Air Act, (H. Rpt. 91-1783) section 309 required the EPA Administrator (in lieu of the Secretary of the Interior) to make a public determination of environmental inadequacy, and then to refer the matter to the CEQ. In switching the publication requirement from the CEQ to EPA, the conferees clearly recognized that as an advisor to the President, the CEQ had less freedom to make frank public comments than a large line agency.

60. Original in the files of the Dingell subcommittee.

61. Wilderness Society v. Hickel, 325 F. Supp. 422, 1 ELR 20042 (D.D.C. 1970).

62. For example, the statement failed to consider the impact of tanker traffic from Alaska to the lower 48 states. See 118 Cong. Rec. S7544 (daily ed. May 10, 1972).

63. See environmental group comments reprinted at 118 Cong. Rec. S7672 (daily ed. May 11, 1972); 118 Cong. Rec. S7538 (daily ed. May 10, 1972); 118 Cong. Rec. E4927 (daily ed. May 18, 1972).

64. See Alderson, "The Public Lands," in Nixon and the Environment 126 (J. Rathlesberger ed. 1972).

65. Wilderness Society, Pipeline Alert 4 (1972).

66. Undersecretary of Interior William Pecora declared at a news conference that hearings would be a "circus" and "would interfere with … thoughtful and rational analysis." See the Washington Post, March 21, 1972.

67. J. Whitten, That We May Live (1966).

68. Printed text at 12-13. Speech was delivered on February 15, 1972.

69. Hearings on Agriculture-Environmental and Consumer Protection Appropriations for 1972 before a Subcomm. of the House Comm. on Appropriations, 92d Cong., 1st Sess. Part V, 512 (1971).

70. House Comm. on Appropriations, Department of Agriculture — Environmental and Consumer Protection Appropriation Bill, 1972, H. Rep. No. 92-289, 92d Cong., 1st Sess. (1971).

71. House Comm. on Appropriations, Department of Agriculture — Environmental and Consumer Protection Appropriation Bill, 1973, H. Rep. No. 92-1175, 92d Cong., 2d Sess. (1972). For OMB action, see 38 Fed. Reg. 12138 (May 9, 1973).

72. New York Times, September 6, 1972.

73. See Hearings on Stream Channelization before the Subcomm. on Conservation and Natural Resources of the House Comm. on Government Operations, 92d Cong., 1st Sess. (1971).

74. See Morgan, Governing Soil Conservation (1966).

75. Gillette, "Stream Channelization: Conflict between Ditchers, Conservationists," 176 Science 890, 892 (May 26, 1972).

76. Id. at 893.

77. E. Flash, Economic Advice and Presidential Leadership: The Council of Economic Advisers (1965).

78. Id. at 312.

79. Id. at 313.

80. Id.

81. Heller, "Economic Policy Advisers," in The Presidential Advisory System 33 (T. Cronin and S. Greenberg eds. 1969).

82. Sax, Defending the Environment 91, 92 (Consumers Union ed., 1971).

83. Letter to Cong. John Dingell, reprinted at 110 Hearings on the Temporary Exemption from section 102, Statements before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess., 1972.

84. "Decision-Making in the White House," in Rathlesberger, supra note 64 at 267.

85. Interview with the author.

86. Three annual reports have been prepared to date.

87. Interview with the author.

88. See Carter, "Earl Butz, Counselor for Natural Resources: President's Choice a Surprise for Environmentalists," 179 Science 358 (January 26, 1973).

89. CEQ, Environmental Quality — The First Annual Report of the Council on Environmental Quality 254 (1972) [hereinafter cited as CEQ First Annual Report].

90. Id. at 5.

91. During the Council's first year of operation, its appropriation was contained in a bill vetoed by the President, so the CEQ did not obtain its appropriation until a revised bill was enacted in December 1970. For the first part of the year, it operated with a large number of personnel borrowed from other agencies, and the principal concern of these individuals was production of the first annual CEQ report. In addition to producing the report, the small CEQ staff was charged with the responsibility during the first year of reviewing the impact statements and NEPA-implementing procedures of numerous agencies. In brief, the small CEQ staff was simply overwhelmed with responsibilities.

92. Christian Science Monitor, January 13, 1971.

93. Blackwelder, "Water Resources Development," in Rathlesberger, supra note 64, at 58-59.

94. See discussion in 56 Sierra Club Bulletin 27 (July-August 1971).

95. For executive initiatives, see the CEQ's annual reports, supra notes 39 and 89.

96. CEQ Second Annual Report, supra note 39, at xi.

97. For additional details, see Hearings on the Annual Reports of CEQ before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess. (1972). See also New York Times, August 11, 1972 and Washington Post, August 11, 1972.

98. House Comm. on Merchant Marine and Fisheries, Council on Environmental Quality, H. Rep. No. 91-378, 91st Cong., 1st Sess. 10 (July 11, 1969).

99. The controversy is described in detail in "White House Spikes Plan on Wetlands," Washington Evening Star, February 19, 1972, from which this account is drawn.

100. The account below is drawn from newspaper reports and from interviews with CEQ staff. See the Washington Star, January 14, 1972, New York Times, January 11, 1972, and Wall Street Journal, January 14, 1972.

101. Wall Street Journal, supra note 100.

102. CEQ First Annual Report, supra note 89, at 212. CEQ's stress here on public participation now seems ironic in light of its dispute with Representative Dingell over release of draft impact statements.

103. CEQ Second Annual Report, supra note 39, at 155-56.

104. Environmental Quality — The Third Annual Report of the Council on Environmental Quality 248 (1972).

105. Id. at 256.

106. See Hearings on the Environmental Protection Act of 1971 before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92nd Cong., 1st Sess. Part I, 36-42 (1971).

107. Staff of the Senate Comm. on Interior and Insular Affairs, 91st Cong., 2d Sess., Law and the Environment 5 (Comm. Print 1970).

108. The CEQ's defense of the public interest law firms was noted in two New York Times editorials that supported retention of the tax privileges. See the New York Times, October 15, 1970 and October 18, 1970.

109. See Int. Rev. Code of 1954, § 501.

110. Statement of the Honorable Russell E. Train, Chairman, Council on Environmental Quality, before the House Committee on Ways and Means, May 3, 1972. Printed text at 2.

111. See Anderson, supra note 2, passim.

112. Supra note 39. See also Comment, Landmark Decision on the National Environmental Policy Act: Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 1 ELR 10125 (August 1971).

113. 35 Fed. Reg. 12566 (August 6, 1970).

114. Calvert Cliffs' Coordinating Committee v. AEC, supra note 3, 1 ELR 20346 at 20349.

115. Dingell 1970 Oversight Hearings, supra note 14, Part I at 5.

116. Id. at 59.

117. Id. at 69.

118. Information on CEQ's attitude derived from interviews with CEQ staff.

119. 5 U.S.C. 551 et seq.

120. CEQ staff interview with author.

121. Daniel R. Muller, an AEC representative discussing NEPA implementation at the December 1972 convention of the American Association for the Advancement of Science stated that, as of December 1972, the AEC had 200 personnel working on NEPA implementation. In commenting on the AEC's pre-Calvert Cliffs' effort to implement NEPA, he noted:

The total staff that was involved in the preparation of environmental statements prior to the Calvert Cliffs decision was a mere handful of people. They were simply rephrasing and restating the material submitted by the applicants.

122. Interview with the author.

123. Hearings on the Calvert Cliffs Court Decision before the Senate Comm. on Interior and Insular Affairs, 92d Cong., 1st Sess. Part I, 27-28 (1971).

124. Id. at 36.

125. Id., Part II, at 387.

126. Dingell 1970 Oversight Hearings, supra note 14, Part I at 1110.

127. Dingell Oversight Report, supra note 59, at 30.

128. Supra note 3. See Comment, Delegation of the Drafting of Environmental Impact Statements: Greene County Planning Board v. Federal Power Commission, 2 ELR 10153 (June 1972).

129. Greene County Planning Bd. v. Federal Power Comm'n, supra note 3.

130. Id.

131. Section 3 of AEC rules. Reprinted in Dingell 1970 Oversight Hearings, supra note 14, Part I at 1110.

132. At 2-3. Memo in file of author.

133. Id. at 2.

134. Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965), cert. denied sub nom. Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941 (1966).

135. Information from interviews with CEQ staff.

136. Id.

137. "A federal agency considering an action requiring an environmental statement, on the basis of (i) a draft environmental statement for which it takes responsibility or (ii) comparable information followed by a hearing subject to the provisions of the Administrative Procedures Act, should consult with, and obtain the comment on the environmental impact of the action of, Federal agencies" … [emphasis added].

138. Supra note 3.

139. Dingell 1970 Oversight Hearings, supra note 14, Part II is a compilation of all agency § 103 statements.

140. Information on CEQ views derives from staff interviews.

141. Id.

142. Supra note 3.

143. Information on CEQ views derives from staff interviews.

144. Interview with the author.

145. Nadel, The Politics of Consumer Protection 57 (1971).

146. In late 1972, CEQ made public a letter to the ICC which contained a scathing attack on the ICC's lack of consideration of the environmental impact of differential freight rates for virgin and recycyled materials. The CEQ letter was cited by Judge J. Skelly Wright in SCRAP v. United States, 346 F. Supp. 189, 2 ELR 20486 (D.D.C. 1972), a case in which environmentalist plaintiffs successfully challenged an ICC freight rate decision on NEPA grounds. When the Wright decision was reversed on appeal, the CEQ letter was quoted at length in Justice Douglas's dissent.

The CEQ's public comment concerning the ICC stands in stark contrast to the Council's silence concerning the Interior Department's Trans-Alaskan Pipeline proposal, and the comparison serves to illustrate the political calculation that underlies CEQ's public pronouncements.

3 ELR 50051 | Environmental Law Reporter | copyright © 1973 | All rights reserved