Section 309 of the Clean Air Act¹ makes the Environmental Protection Agency full partner of the Council on Environmental Quality in the task of overseeing implementation of the National Environmental Policy Act.² Congress gave EPA responsibilities complementary to those of CEQ so that both agencies could accomplish together what each alone would be unable to do. Section 309 lays the groundwork for a formidable administrative team fully capable of ensuring compliance with NEPA in government decision making. To the chagrin of environmentalists, however, EPA has been reluctant to perform certain of its responsibilities under section 309.³ This article discusses the duties assigned to EPA under § 309, and the steps EPA has taken to fulfill them. In conclusion, the article suggests that a lawsuit may be the appropriate means of compelling EPA to meet all its § 309 responsibilities, so that the complementary strengths of EPA and CEQ may be brought fully to bear on agency decision making under NEPA.

NEPA's proclaimed goal is to attain "harmony between man and his environment."⁴ Congress sought to achieve this end by reforming government decision making.⁵ Section 102(2)(C) of NEPA requires all federal agencies embarking upon major actions significantly affecting the quality of the human environment to (1) consult with and obtain comments from any federal agency with jurisdiction by law or special expertise with respect to the environmental impact involved, and (2) prepare a detailed environmental impact statement to be made available to the public together with comments obtained from other agencies. These procedural requirements are designed to shape federal decision making in two ways. First, interagency consultation prior to federal action should reduce agency "tunnel vision" and foster consideration and balancing of a wide range of goals, with emphasis on preserving and enhancing environmental quality. Second, placing affirmative burden on the acting agency to prepare written statements explaining a proposal's environmental effects should create a reviewable record, allowing administrative decisions to be scrutinized both at higher levels within the executive branch and by the public. NEPA places responsibility for executing theseprocedural and substantive reforms on each individual agency. Thus, there is no way to know whether NEPA's mandates are being met in a particular action except by a thorough review of the decision-making process behind that action. The Council on Environmental Quality⁶ has assumed, among its other responsibilities, the task of monitoring other federal agencies' procedural compliance with NEPA.⁷

Many observers hoped that CEQ would execute this congressional directive by comprehensively reviewing agency compliance with NEPA. CEQ, however, has assumed only limited responsibility for reviewing agency proposals. It has established itself as a small policy making and coordinating body serving principally as the President's confidential advisor on environmental matters.⁸ With a total staff of under sixty people, only a few of [3 ELR 50072] whom are engaged in reviewing agency decision making, CEQ has been able to apply its environmental expertise to no more than a handful of the most controversial federal projects.⁹ Where agency decision making has been reviewed by CEQ, the Council's actions for the most part have been ad hoc, off the record, and removed from public scrutiny.¹⁰ The unfortunate result of this pattern of review is that agency abuses of the NEPA process often go unnoticed and uncorrected.

Congress did not move to remedy this situation by assigning responsibilities to some other agency, or by forcing new procedures on the Council. Recognizing the unique position of influence and leadership that CEQ held on environmental matters, and the special contributions it had made in those cases with which it has become involved, Congress instead called on EPA, the only other exclusively "environmental" agency in the executive branch, to supplement CEQ's oversight activities by bringing hidden agency action into full view and by alerting the public and CEQ when it determines that NEPA's goals are not being met.

Section 309 of the Clean Air Act makes EPA a central administrative checkpoint at which a comprehensive on-the-record review of all agency action with environmental impact can take place, so that the most harmful actions are screened out for special scrutiny. The terms of the statute make clear that EPA and CEQ must work as a team to give effect to the legislative intent behind § 309. The text of § 309, as enacted December 28, 1970, is as follows:

Sec. 309. (a) The Administrator shall review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this Act or other provisions of the authority of the Administrator, contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal projects for construction and any major Federal agency action (other than a project for construction) to which section 102(2) (C) of Public Law 91-190 applies, and (3) proposed regulations published by any department or agency of the Federal Government. Such written comment shall be made public at the conclusion of any such review.

(b) in the event the Administrator determines that any such legislation, action, or regulation is unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the Council on Environmental Quality.¹¹

Environmentalists who doubted that government agencies would spontaneously undertake to fulfill NEPA's mandates may take comfort from § 309.¹² EPA, a relatively trustworthy agency with broad environmental expertise, has been directed by Congress to be the environmentalist's watchdog. Although EPA does not enjoy the same position of leadership in environmental matters that CEQ possesses, it can make valuable contributions to the NEPA oversight process. With an impact-statement reviewing staff of 80, roughly ten times the size of CEQ's, EPA has greater capacity to conduct substantive review of all agency action. It can give detailed advice to agencies on environmentally acceptable courses of action through both NEPA § 102 comments and § 309 comments under the Clean Air Act. If agencies do not incorporate EPA's environmental advice, CEQ may be called upon to see that they do so. Under these circumstances, the small but influential CEQ may be able to assert its leadership effectively.

Section 309 smoothed over minor NEPA shortcomings unrelated to oversight.For instance, NEPA interagency consultation depends upon an agency's first deciding to prepare an impact statement and later soliciting comments from other agencies.¹³ A problem arises if an agency either refuses to develop a § 102 statement or, having once prepared a statement, does not refer it to EPA for comment. Congress was concerned that this procedure left too much to the discretion of the line agency and therefore did not adequately assure "that Federal environmental agencies will effectively participate in the decision-making process."¹⁴ The short legislative history of § 309 suggests that Congress placed utmost importance on [3 ELR 50073] the role of expert "environmental agencies" in the preparation of impact statements: "It is essential that mission-oriented Federal agencies have access to environmental expertise in order to give adequate consideration to environmental factors."¹⁵ Under § 309, Congress takes full advantage of EPA's environmental expertise by placing squarely on EPA's shoulders an affirmative responsibility to make comments, whether or not the proposing agency requests such comments. EPA is no longer a passive consultant, but is required to take the initiative, if necessary, to make its expertise available in writing to other agencies. Section 309 is congressional insurance that all "mission-oriented" agencies will always have, at minimum, the benefit of EPA's environmental expertise.

Another § 309 refinement of the NEPA process not directly related to administrative oversight concerns the public release of comments on the environmental impact of agency proposals. During the controversy over appropriations for the supersonic transport aircraft, Congress faced some difficulty in obtaining the NEPA § 102 comments submitted to the Department of Transportation by environmental improvement agencies. When Senator Muskie pressed for disclosure of the comments, it became apparent that NEPA's requirement that § 102 comments must "accompany the proposal through existing agency review processes" was sufficiently ambiguous to allow agencies to thwart the public participation goals of NEPA by withholding such comments until after the final agency decision on a proposal. Section 309's legislative history dispels any doubt that this ambiguity was clarified with regard to EPA comments: "[T]hose [written] comments must be made public when the Environmental Protection Agency completes its review — not when the environmental impact agency decides the public should be informed."¹⁶ Subsequently, the principle of early public availability of comments was made applicable in all agencies by CEQ guidelines.¹⁷

Of greater importance than these aspects of § 309, however, are the ways in which it expands EPA's NEPA oversight responsibilities to complement those of CEQ. Section 309 requires EPA to evaluate agency proposals, determine whether they are "unsatisfactory from the standpoint of public health or welfare or environmental quality," and make such determinations publicly available. These standards for judging proposed actions were designed to assure not only that agencies would adequately consider environmental factors in their NEPA analyses, but also that an objective balancing of environmental costs against other social benefits would be undertaken.¹⁸ Congress intended for EPA to employ its environmental expertise to identify publicly those proposals which, though harmful to the environment, could be modified to lessen environmental damage, and those which, even if every environmental precaution were taken, would be so detrimental to the environment that higher-level executive clearance should be obtained before any further action is taken.¹⁹ After independently reevaluating agency proposals, EPA must refer those it labels "unsatisfactory" to CEQ for further proceedings.

Furthermore, § 309 expands considerably EPA's authority to monitor the environmental impact of agency proposals. Under NEPA, EPA had the responsibility of commenting on proposals only in six designated areas: air quality, water quality, noise abatement and control, solid waste disposal, pesticide regulation and radiation standards.²⁰ CEQ's authority to "review and appraise" agency proposals, on the other hand, was not similarly limited.²¹ In order to complement CEQ's authority, § 309(a) extends EPA's powers, giving it the responsibility of commenting on "any matter relating to" EPA's duties, responsibilities, or authority contained in legislation proposed by a federal department or agency, newly authorized federal construction and any other major agency action which warrants the preparation of an impact statement, and regulations [3 ELR 50074] proposed by a federal department or agency. The phrase "any matter relating to," while imprecise, is clarified by the legislative history, which states that even matters "indirectly" related to EPA's authority are within the scope of § 309.²² Among the areas which may be presumed now to fall within EPA's area of responsibility are land use, highway and railway impacts, mass transit, parks, wildlife refuges, forestry and mining.²³ Moreover, by virtue of EPA's commanding presence among ederal environmental agencies, one may assume that any action with environmental impact "indirectly" relates to EPA's responsibility, and is within the Administrator's § 309 authority.

Examination of the three subsections of § 309(a) makes it apparent that the statute's provisions are even more extensive than those of NEPA, in that the law requires EPA to review and comment upon three classes of agency action for which NEPA impact statements are not required: proposed regulations, proposed legislation, and newly authorized federal construction²⁴ regardless of whether they are "major Federal actions significantly affecting the quality of the human environment."²⁵ With regard to newly authorized federal construction, EPA's expanded obligations make little practical difference because impact statements are prepared for federal construction projects in nearly every case. However, the almost total absence of impact statements in two of the three categories — legislative proposals and agency regulations — may make § 309 comments the only means in many cases for initiating discussion of potential environmental impacts.²⁶ The need for EPA comments on legislative proposals has not been eliminated by the legislative clearance process of the Office of Management and Budget (OMB). OMB has not insisted that impact statements be prepared for legislative proposals before their approval except in limited circumstances.²⁷ The introduction of EPA's comments into this process can provide a valuable mechanism for evaluating critically the environmental impacts of legislation. Agency regulations are also promulgated in many cases without the benefit of environmental analysis. Under § 309, EPA has an obligation to supplement CEQ's general guidance with specific recommendations on proposed regulations having an environmental impact. Such an expansion of EPA's authority not only exposes other agencies' decision making to EPA's expertise, but also permits EPA to screen a broader range of agency proposals for CEQ's attention.

As the repository of "unsatisfactory" agency proposals screened through EPA, CEQ must resolve the conflict between the "developmental" agency and "environmental" EPA. Neither the words of § 309 nor its legislative history provide much guidance as to the manner in which CEQ should accomplish this task. The Senate version of § 309, however, was amended to delete the requirement that CEQ make a public recommendation to the President on matters reviewed pursuant to § 309(b). This indicates that Congress wished to allow flexibility in CEQ's treatment of § 309 referrals.²⁸ Moreover, both the policy of public involvement endorsed by NEPA²⁹ and § 309's requirement [3 ELR 50075] that EPA publish its "unsatisfactory" designations, strongly suggest that the public should have at least some participation or awareness of CEQ review of § 309 referrals. If CEQ was intended by Congress to be secretive in its review of § 309 referrals, there would be little purpose for requiring EPA to publish "unsatisfactory" designations before making referrals to CEQ. EPA's public condemnation of a proposal is certainly not a cue for concerned citizens to initiate lawsuits against the proposing agency because, if the overseeing process works properly, any environmental shortcomings of the proposal will be corrected by CEQ. Some environmentalists believe that CEQ should hold public hearings for all § 309 referrals so that environmental issues will be publicly resolved.³⁰ This approach, however, could jeopardize CEQ's role as confidential advisor to the President by forcing CEQ to air interagency disputes in public even when the proper environmental modifications of the proposal could be accomplished by other means. Undoubtedly, CEQ will reject such an approach.³¹ Nevertheless, CEQ must make a good faith effort to carry out Congress' intent, which will not be achieved if CEQ's § 309 review is totally removed from public scrutiny. Although CEQ has not yet approved guidelines for handling § 309 referrals, it seems likely that the review will be conducted flexibly and informally, as are its other overseeing activities.

CEQ review of § 309 referrals might include the following basic steps. First, CEQ could publish its receipt of EPA referrals so that environmentalists will know that administrative procedures are still underway to remedy the environmental harm of the proposal. Next, CEQ could recommend suspension of agency action pending the resolution of the issues before it³² and examine the evidence supporting EPA's determination that the proposal is "unsatisfactory." If CEQ does not find EPA's evidence convincing, it could publish its determination that the proposal is satisfactory and that no changes have been made in the proposal. If it accepts EPA's conclusion, then CEQ might work informally with the acting agency to modify the proposal in a manner which is acceptable to CEQ. In the event that a project modification is worked out, CEQ could give public notice of this resolution and require the agency to prepare a new final impact statement reflecting the alterations in the proposal.³³ If CEQ and the proposing agency cannot in informal discussions agree on an acceptable modification of the project, CEQ has the option either to hold a public hearing in which political forces could be brought to bear on the proposing agency,³⁴ or to make a confidential recommendation to the President concerning the proposal.³⁵ Any changes in the proposal resulting from either or both of these procedures could be publicly announced, and the proposing agency required to prepare a new final impact statement reflecting the changes. If CEQ exhausts its means of effecting changes in the agency proposal without securing satisfctory alternations, it could announce that the review process has been terminated without modification of the proposal.³⁶

By following this procedure, CEQ could effectively influence agency decision making without jeopardizing its confidential relationship with the President. Although these procedures allow CEQ review processes to remain secretive, if the Council so chooses, publication of its receipt of EPA referrals and of the final result of CEQ review would still provide notice to concerned citizens of the commencement and termination of administrative [3 ELR 50076] efforts to comply with NEPA. Upon notice of termination, concerned citizens can examine the record and decide for themselves what further steps might be appropriate. If the § 309 oversight process is implemented in good faith and with sufficient resources, from EPA's comprehensive analysis and evaluation through CEQ's review, citizen suits to enjoin environmentally harmful agency action would theoretically be unnecessary except in rare instances. Unfortunately, such systems seldom work as well in practice as in theory. One must take account of the realistic constraints placed on the ability of EPA and CEQ to execute the § 309 process. Both agencies are politically vulnerable³⁷ and responsible for numerous activities in addition to overseeing NEPA. Even the larger EPA may not have adequate resources to give NEPA overseeing activities the attention they deserve.³⁸

From Theory to Practice — A Survey of Section 309's Implementation

When § 309 became law on December 31, 1970, EPA was less than one month old. The young agency faced formidable obstacles, organizational and otherwise, to its implementation of a wide range of environmental responsibilities in addition to those given it under § 309.³⁹ It is therefore not surprising that implementation of § 309 got off to a slow start. EPA was already receiving many agency-prepared NEPA impact statements for § 102 comments and was content for the time being to limit its § 309 review to these statements. Its handling of the § 309 process was somewhat less than systematic at this stage. Records of § 309 comments during these early months can only be reconstructed by perusing voluminous EPA files. Organizational problems, as is usually the case, were worked out by trial and error.⁴⁰ Stress was placed on the importance of commenting promptly on all impact statements, rather than giving each impact statement thorough substantive review. EPA thought it necessary during these preliminary stages to sacrifice quality to attain rapid review. It wanted to demonstrate to Congress that the NEPA commenting process was practicable and would not necessitate excessive delay of administrative action.⁴¹

Some of EPA's implementation efforts during this initial [3 ELR 50077] period seem quite refreshing in retrospect, but were quickly stifled by administrative backlash. When EPA completed its review of the Trans-Alaska pipeline draft statement, for example, it interpreted its duty to "publish" its comments literally and issued a press release on March 15, 1971, setting forth in detail its reasons for disapproving the pipeline.⁴² The Department of Interior had not considered the effect of oil spills resulting from the use of oil tankers, EPA declared, or the effect of the pipeline on the permafrost. It had not designed leakmonitoring systems which EPA regarded as "critical" to environmental protection. Moreover, the Department of Interior had not considered the Trans-Canada pipeline alternative which EPA considered "preferable from the point of view of minimizing environmental impact." The EPA press release concluded that the Trans-Alaska pipeline proposal would cause "avoidable environmental degradation and pollution" and recommended that construction "not be consummated … until further study has been completed." The headlines read "Ruckelshaus Asks Delay in Alaska Pipeline and Study of Trans-Canada Route."⁴³ The next day, March 16, 46 Congressmen sent a letter to Interior Secretary Rogers Morton calling for "indefinite postponement of the pipeline, until ecological problems have been adequately considered and resolved."⁴⁴ EPA's public criticism of the Interior Department outraged agency officials, who complained of criticism by this new and inexperienced agency. Intimidated by this reaction, EPA soon tempered its policy of press releases on controversial projects and, following CEQ guidelines,⁴⁵ eventually switched to publishing comment summaries in the Federal Register. The Trans-Alaska pipeline project was EPA's sole referral to CEQ under § 309(b). CEQ claims never to have received this referral. EPA has never again made a formal § 309 referral to CEQ. This circumstance invites speculation that after EPA's initial experience with § 309 referrals, it decided that such referrals were politically undesirable. Moreover, the fact that this single § 309 referral was misplaced, whatever the cause, underlines the need for formal public announcement by CEQ when § 309 referrals are received.

The Trans-Alaska pipeline episode seems to have set the tone for later EPA implementation of § 309. Agencies were willing to tolerate EPA in its advisory capacity, but resented criticisms offered by EPA in its role as NEPA's guardian. Faced with a choice of alienating fellow agencies or working to establish rapport and pursuing cooperative ventures, EPA leaned toward the latter.⁴⁶ Without directives from CEQ⁴⁷ or pressure from the courts brought on by citizen action, EPA was not yet in a position to fulfill both roles successfully.⁴⁸

[3 ELR 50078]

On April 23, 1971, CEQ issued guidelines under authority granted to it by Executive Order 11514 setting forth four ground rules, still in effect, for § 309's implementation.⁴⁹ First, under these guidelines federal agencies were required to submit to EPA all proposals in addition to those which are already sent to EPA under § 102 of NEPA for which § 309 comments and evaluation are required. Although CEQ was not very explicit in explaining what additional proposals this applied to, this provision should have helped EPA to broaden, at least somewhat, the scope of § 309 review by making comment-worthy materials more readily available to it. Second, in the interest of administrative efficiency, the guidelines require EPA to combine its NEPA and § 309 comments into a single statement. This directive implicitly assumes that NEPA and § 309 comments serve the same purposes and apply to the same proposals.While it is true that both these comments are mechanisms whereby EPA shares its expertise with other agencies, § 309 comments are appropriate in a broader range of situations than NEPA comments. Third, a 45-day time limit was imposed on the EPA commenting process. This period was intended to allow EPA sufficient time to review agency proposals without imposing excessive delays on agency programs. Finally, EPA was required to publish summaries of its comments in the Federal Register. This method of publication allows systematic citizen review of and access to EPA comments. The CEQ guidelines, however, conspicuously omit any mention of EPA "referrals" to CEQ under § 309(b).

In response to these CEQ guidelines, EPA revised its § 309 implementation process.⁵⁰ Summaries of the hybrid NEPA — § 309 comments called for by the CEQ guidelines began appearing in the Federal Register at biweekly intervals. These comments, as applied to draft impact statements, were grouped in four categories:

Category I: General Agreement/Lack of Objections.

EPA has no objection to the action, or suggests only minor changes.

Category II: Inadequate Information.

The draft statement does not contain sufficient information for EPA to assess fully the action's environmental impact. EPA requests more information about potential hazards which have been identified in the statements, or asks that potential hazards not addressed in the draft statement be addressed in the final statement.

Category III: Major Changes Necessary.

The proposed action needs major revisions or major additional safeguards to adequately protect the environment.

Category IV: Unsatisfactory.

The proposed action, in EPA's judgment, has a potentially harmful environmental effect, and no environmental safeguards are available to prevent this effect. Therefore, EPA recommends that the acting agency consider alternative actions, or take no action at all.⁵¹

According to this new procedure, EPA was to discharge its obligations under § 309(b) by reviewing agency proposals that received a "3" or "4" rating at the draft impact statements stage for a second time when final impact statements were circulated.

Categories 3 and 4 correspond to serious EPA disagreement with the proposed action. In cases where EPA makes comments falling into category 3 or 4, additional follow-up will be required to fulfill EPA's responsibilities under § 309. In those cases, the principal reviewer should request a copy of the final impact statement. The final statement should then be analyzed to determine if appropriate changes were made in the project.⁵²

If, after review of the final statement, EPA still had serious reservations about the project, it was to notify CEQ so that further action could be taken.

From the time EPA began publishing comment summaries in the Federal Register on November 1, 1971, until the § 309 implementation process was revised on November 30, 1972, EPA's comments on draft impact statements were as follows:⁵³

Category I	Category II	Category III	Category IV
630	635	105	8
45.7%	46.1%	7.6%	0.6%

EPA's comments showed serious disagreement with roughly 8 percent of the agency draft impact statements.⁵⁴ [3 ELR 50079] Less than half of the draft statements passed muster without significant criticisms.

The character of these comments reflects the strong influence of EPA's authority to judge the acceptability of agency proposals. NEPA comments are generally designed to give acting agencies the benefit of special expertise of sister agencies on particular aspects of the proposal, but often give little guidance to the proposing agency on the procedural adequacy of the draft impact statement or on the substantive acceptability of the proposal as a whole. The hybrid § 102-309 comment, by contrast, focuses on these two issues in order to give agencies preliminary guidance no how they can pass the impending EPA evaluation of the project.

Except for its comments on eight agency regulations (two of which were found to require major changes),⁵⁵ the comments on draft statements discussed above constituted the whole of EPA's § 309 implementation during this period. EPA ignored its obligation to comment on agency-related legislation, agency regulations (other than the eight), impact statements that were not submitted to it under NEPA,⁵⁶ and other agency proposals having significant environmental impact for which no environmental impact statement was prepared. Moreover, it completely neglected to follow up on those proposals with which it found serious problems at the draft stage. Although it rated 113 proposals as "3" or "4", EPA reviewed only six final statements during this period, not of its own initiative but prodded by court action. It published no final impact statement comment summaries and made no referrals to CEQ.

On November 30, 1972, EPA promulgated new directives for § 309's implementation.⁵⁷ These directives refined the draft level comment process previously used by specifically directing comments at two distinct areas of concern: the environmental impact of the proposal, and the adequacy of the information presented in the statement. As a result, EPA comments now provide more effective guidance to proposing agencies than previously. Comments on the environmental impact of the action fall into three categories:

LO — Lack of Objection

EPA has no objections to the proposed action as described in the draft impact statement, or suggests only minor changes.

ER — Environmental Reservations

EPA has reservations concerning the environmental effects of the proposed action, and suggests further study of alternative actions, or modification of the proposal.

EU — Environmentally Unsatisfactory

EPA believes that the proposal's potential for harming the environment cannot be prevented by environmental safeguards. Therefore, EPA recommends that the acting agency consider alternative actions, or take no action at all.⁵⁸

Similarly, the comments on the adequacy of the impact statement fall into three categories:

Category I — Adequate

The draft impact statement adequately sets forth the environmental impact of the proposal and the alternatives reasonably available to the proposal.

Category II — Insufficient Information

The draft impact statement does not contain sufficient information for EPA to fully assess the environmental impact of the proposal. EPA, however, makes a preliminary determination of the proposal's environmental impact, and requests the acting agency to provide additional information.

Category III — Inadequate

The draft impact statement does not adequately assess the proposals environmental impact or the reasonably available alternative courses of action. EPA requests that the impact statement by substantially revised to provide additional information and analysis.⁵⁹

If a draft statement is placed in category 3, no rating will be made on the environmental impact of the proposed project because there is insufficient information on which to base such a rating. EPA headquarters retains responsibility for commenting on legislation and regulations. Commenting on other agency action, however, remains almost entirely with the ten EPA regional offices. Only when a proposal's subject matter involves more than one region, a high degree of national controversy, or an area of policy not previously considered by the agency, will central headquarters handle commenting procedures.⁶⁰ If a regional office classifies a proposal "EU" or "3", EPA headquarters screens the classification to make sure that EPA is not condemning agency action without strong supporting evidence.

If draft impact statements are placed in categories ER, EU, 2, or 3, the EPA directive requires that the proposal be reviewed again at the final impact statement stage to make sure that its comments at the draft stage were assimilated and to resolve whatever shortcomings the project may still have.⁶¹ Comments at the final stage are directed solely at the project's environmental acceptability, and are not concerned with the sufficiency of information [3 ELR 50080] in the statement itself.⁶² Although comments on final statements are made in paragraph form and are not categorized, they correspond to categories "EU" and "ER" of "LO" at the draft stage. If EPA finds the proposals as described in the final statement to be substantively acceptable with only minor changes, the preparation of a formal comment for transmittal to the proposing agency and publication in the Federal Register is left entirely to the discretion of the EPA reviewer. This is arguably permissible because § 309(b) expressly requires only that EPA publish comments on "unsatisfactory" proposals, and says nothing with regard to publication of comments on "satisfactory" proposals. Nevertheless, the EPA reviewer is encouraged to prepare written comments whenever the originating agency has made significant modifications or improvement in the proposed action to comply with EPA's suggestions at the draft statement level. When formal comments are not prepared, the EPA § 309 review process requires that the reviewer file a memorandum at the Office of Federal Activities in EPA recording his decision and underlying rationale for approving the proposal.⁶³ If the reviewer has environmental reservations about a proposal at the final statement stage he must prepare a comment for publication in the Federal Register summaries and transmittal to the proposing agency. The EPA Deputy Dadministrator then notifies CEQ by memorandum of its summary comments. The memorandum merely reiterates the summary comment, makes no mention of § 309(b) of the Clean Air Act, and does not constitute a formal § 309 referral to CEQ.⁶⁴ If the reviewer determines that the proposal as set forth in the final statement is environmentally unsatisfactory, the reviewer's determination will be screened by the EPA Administrator. If the Administrator agrees that the proposal is unsatisfactory, he will refer the matter to CEQ under § 309(b), and a summary comment will be published in the Federal Register.

Between December 1, 1972 and May 30, 1973, EPA comments on draft statements were as follows:⁶⁵

LO	ER	EU
364	153	6
69.9%	29.3%	1.1%
Category I	Category II	Category III
189	333	42
33.6%	59.0%	7.4%

EPA found serious abuses of the NEPA process in roughly 8 percent of the draft impact statements, and major substantive shortcomings in 30 percent. Over 65 percent had substantial informational deficiencies. EPA showed great reluctance to designate draft statement "environmentally unsatisfactory," finding only one project in one hundred to deserve such a rating. It seems safe to conclude that any project rated "EU" by EPA would involve disastrous effects on the environment. EPA central headquarters always double-checks projects rated "EU" by regional offices to make sure that the Agency's position is unassailably well documented. In this connection, EPA must be careful not to take the easy way out by relying on the fence-straddling "ER" and "Category II" designations to avoid a determination of unsatisfactoriness where merited by the facts.

Again, however, EPA efforts to execute § 309 duties beyond this point were very weak. Only six regulations were commented on during this time period, and legislation was totally ignored. No other proposals, save those for which environmental impact statements had beenvoluntarily submitted to EPA, were reviewed. EPA's efforts to follow up projects with poor ratings at the draft level were meager. In the seven months ending May 30, 1973, 113 proposals warranted review at the final stage under the old guidelines,⁶⁶ and 384 projects warranted final review under the new guidelines;⁶⁷ however, EPA made comments on only 19 finals (18 of them favorable)⁶⁸ [3 ELR 50081] and made no referrals to CEQ. The evidently low number of final impact statements reviewed⁶⁹ cannot simply be explained by the fact that there is, on average, a time lag of one year between the circulation of draft and final statements, as the § 309 process has been in operation for well over a year and final statements on the bulk of projects warranting final review have been completed. Rather, the explanation is a combination of two factors: many agencies neglect to send their final impact statements to EPA for review,⁷⁰ and those that do so find that EPA often neglects to conduct a § 309 review.

Obtaining final impact statements commented on at the draft level should not have presented serious problems to EPA, as CEQ receives all final statements as soon as they are released. In any event, this problem should disappear with the adoption of the new CEQ guidelines, which require that "copies of final statements, with comments attached, shall be sent to all Federal, state, and local agencies and private organizations that made substantive comments on the draft statement."⁷¹ The fact that EPA actually received finals warranting additional review, and neglected to review them, is more troublesome.

Recently there have been some favorable developments with regard to compliance with the Act. The new EPA directive on § 309's implementation is considerably more detailed than its predecessor.⁷² It describes more explicitly than before the obligations of regional offices and central headquarters to review final impact statements, and makes clear that environmentally unsatisfactory proposals must be referred to CEQ. Although this directive was issued on November 30, 1972, efforts to implement the new procedures did not get under way until March, following the Environmental Impact Statement Coordinators' meeting in Washington. Members of EPA's Office of Federal Activities (OFA) staff believe that it will take another two or three months before the new procedures function optimally.

In response to requests by EPA regional offices for more specific criteria for determining which projects warrant findings of unsatisfactoriness, the Office of Federal Activities Director issued a memorandum on April 9, 1973, suggesting three situations where referrals to CEQ are most justified:

(1) Where it is highly probable that a violation of [pollution] standards will occur. However, this situation is qualified by the requirement that a balancing judgment be made with respect to violations of standards, especially where the impact of the proposed project is less than the other project alternatives including the alternative of no project at all.

a. To justify an unsatisfactory determination, the violation of standards should be significant and continuing.

b. The applicable standards include Federal, State, and local standards. Federally promulgated standards include EPA developed environmentally protective regulations or guidelines, such as the guidelines being developed under section 304(e) of the Federal Water Pollution Control Act Amendments of 1972 relating to the identification and evaluation of new point sources of pollutants, and under section 404(b) regarding disposal of dredged or fill material in navigable waters (including wetlands).

c. There will be projects which as an initial step do not violate standards, but inherently create significant pollution problems in related areas. If there is a demonstrable connection between the initial project and future related developments which create the likelihood of the violation of standards, this may be a basis for the unsatisfactory determination.

(2) Where standards will not be violated but there is potential for significant environmental degradation which could be mitigated by other available alternatives.

(3) Where the Federal agency violates its own environmental requirements which relate to the duties and responsibilities of EPA, such as sections 109(h) and (i) of the Federal-Aid Highway Act Amendments of 1970 conditioning approval of highway plans and specifications upon a determination that noise and air quality guidelines developed under those sections are met. [Emphasis added.]⁷³

The development of these guidelines is an important and laudable step toward implementing § 309(b), reflecting a sound understanding of EPA's role under § 309(b), and a serious effort to come to grips with the agency's § 309 [3 ELR 50082] responsibilities. If referrals are made every time one of these three situations occurs, § 309(b) will soon come into its own as a means of screening out environmentally harmful proposals for special scrutiny. To supplement these criteria for § 309 referrals, EPA plans within the next fiscal year to prepare guidelines for reviewing nuclear power plants, water impoundment, and stream channelization, each with specific criteria for § 309 referrals in each category.⁷⁴

EPA has recently taken other initiatives to broaden implementation of § 309. For instance, the agency adopted in June 1973, the practice of examining the Federal Register for agency regulations warranting § 309 comments and evaluation. However, EPA found that limitations of time and manpower, and the frequent tendency of agencies to publish major regulatory schemes a segment at a time, rendered this process less effective than expected.⁷⁵ EPA therefore circulated letters requesting federal agencies to provide it semi-annual lists of draft or revised regulations that may affect environmental quality.⁷⁶ It is hoped that agencies will be more responsive to this EPA request than they have to previous ones.

The most recent comment summaries issued by EPA, including comments for the two-week period June 1-15, 1973, contained comments on seven final impact statements.⁷⁷ Compared to the 18 impact statement comments published in the preceeding six-month period, this reflects a marked acceleration of EPA's final review processes. More importantly, however, these final statement comments differ markedly in substantive contect from the 18 uncritical comments previously issued. On one, EPA notes that the proposal's final statement does not include sufficient details to allow evaluation of the effectiveness of specific environmental controls.⁷⁸ This criticism is directed at the informational adequacy of the statement, in spite of EPA's general policy of confining remarks on final statements to the substantive merits of the proposal. The apparent modification of EPA's practice in this regard would seem the only means of avoiding extensive independent research every time a proposal's final statement is informationally inadequate. Another EPA comment criticizes a proposal for failing to incorporate flood control measures which would "maximize [the project's] positive contribution to environmental quality."⁷⁹ Two others state that EPA has "environmental reservations" about the proposals.⁸⁰

With regard to a Corps of Engineers proposal to construct a dam and reservoir in the Susquehanna River valley, Tioga County, Pennsylvania, EPA commented summarily as follows:

EPA has reservations concerning the environmental effects of the project as proposed in the final statement. The final statement indicates that eutrophication of the proposed reservoir is likely. The project plan incorporates use of chemical control of algal growths; EPA believes alternatives to chemical controls should be used where possible. Water released from the dam may contain reduced concentration of dissolved oxygen. There is no provision in the project plan to require downstream flood plain zoning as a local cooperation measure. EPA believes that the issues raised in our comments on the final impact statement should be resolved before construction of the project is initiated. [Emphasis added.]⁸¹

This comment indicates that the proposal may lead to violation of water pollution standards, and produce significant environmental degradation that could be averted or mitigated through use of alternative methods of pollution control. Therefore, this proposal fits both the first and second situations described in memorandum guidelines of the Director of the Office of Federal Activities as appropriate for § 309(b) referrals. EPA itself noted that the project should not proceed in its present form. Because EPA labeled the project "environmental reservations," however, instead of "environmentally unsatisfactory," it feels it has no obligation to make a referral to CEQ in spite of the fact that the project has significant environmental shortcomings. EPA has confused the criteria for its self-conceived "EU — environmentally unsatisfactory" category at the draft statement level with the statutory criteria "unsatisfactory from the standpoint of public health or welfare or environmental quality." By a simple dictionary definition of "unsatisfactory", something with significant environmental shortcomings is unsatisfactory from the standpoint of environmental quality. The EPA procedures for implementing § 309 give "unsatisfactory" an unreasonably restrictive definition by making it synonymous with the rarely used "EU" draft statement rating received only by environmental abominations. EPA should not hesitate to refer proposals to CEQ whenever they should be significantly improved prior to agency action, that is, whenever they warrant an "environmentally unsatisfactory" or "environmental reservations" comment on the final statement. By following its procedure for § 309's implementation, EPA, instead [3 ELR 50083] of formally referring this project to CEQ as § 309(b) of the Clean Air Act mandates, merely requested the Corps to contact EPA's Philadelphia regional office to discuss ways to mitigate the environmental shortcomings of the project, and wrote an informal letter to CEQ calling attention to EPA's comment on the proposal.⁸² Because EPA notified CEQ about its comment informally instead of referring the matter to CEQ under § 309, CEQ does not have an obligation to conduct a § 309(b) review; no environmental issues are formally before CEQ for resolution, and no public announcement of project modification will ever be made by CEQ. As of this writing, CEQ has not taken action, and the Corps of Engineers has not responded to EPA's request that it contact the EPA regional office in Philadelphia. Meanwhile the 30-day mandatory waiting period after circulation of final statements has expired and a $1.5 million contract has been awarded for construction of the dam and reservoir.Construction is already underway. EPA's declaration that "the issues raised … should be resolved before construction of the project is initiated" has proved an empty exhortation in the absence of a formal referral to CEQ so that the Council's authority to delay projects pending resolution of environmental issues may be invoked.

Conclusion

Since EPA's birth on December 2, 1970, it has gained in experience and influence, but it has yet to assume its full responsibilities under § 309 of the Clean Air Act. EPA may believe in good faith that expanding its overseeing responsibilities would arouse such hostility in other agencies that EPA's ability to obtain their cooperation in securing better compliance with NEPA would be impaired. But the possible sensitivity of "mission-oriented" agencies to EPA criticisms cannot be allowed to retard unduly the implementation of an Act of Congress. EPA can hardly be considered an intermeddler for performing its statutory mandate.

The congressional intent concerning § 309 is clear. During hearings on the nomination of William Ruckelshaus as EPA Administrator, Senator Muskie, chairman of the Senate Public Works Committee that drafted § 309,⁸³ advised the nominee that § 309 had been designed to make EPA not merely an assistant to other agencies, but an environmental advocate with independence and initiative:

… (Section 309) makes you a self-starter, whenever you, unilaterally, see an environmental risk. You are given the responsibility to raise the red flag.

What is involved here is not an input to somebody else's decision and somebody else's statement. This is an issue to be taken by you.

The reason we are making you independent is so that you will be independent. I think the Council and you have a responsibility for seeing to it that whenever an environmental evaluation is made, whether pursuant to section 102 or this (section 309), that that evaluation enters the public domain as soon as you have made it….

… (I)t is your responsibility to be self-starter … and undertake to use whatever authority you have to restrain or even prevent such an ongoing activity if, in your judgment, the judgment of your people, there is an unfortunate environmental impact.⁸⁴

In addition, EPA cannot be unaware that failure to fulfillnon-discretionary duties under the Clean Air Act renders the agency liable to a citizen's suit under § 304 of that act.⁸⁵ However, EPA's growing willingness in recent [3 ELR 50084] months to assume its obligations under the Act suggests strongly that litigation may not be a necessity. This belief is bolstered by the appointment of Russell Train, a longtime supporter of NEPA, to be the agency's new Administrator. With CEQ's future in doubt, environmentalists will be looking increasingly to EPA — and to § 309 — for a vigorous role in NEPA's implementation.

1. 42 U.S.C. § 1857 et seq., as amended. § 309 was enacted in the Clean Air Act Amendments of 1970, Pub. L. 91-604 (Dec. 31, 1970), ELR 41201, at 41226-27. See generally, Comment, Litigation Under the Clean Air Act, 3 ELR 10007 (March, 1973).

2. 42 U.S.C. § 4321 et seq., 83 Stat. 852, Pub. L. 91-190, ELR 41009 (January 1, 1970). See generally, Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 ELR 50035 (January 1971).

3. Letter from Mr. Speth, Counsel, National Resources Defense Council, Inc., to EPA Administrator William D. Ruckelshaus, Dec. 29, 1972. The letter notes that "despite [Mr. Ruckelshaus' testimony before Congress expressing commitment to] the goals of section 309 and the obvious importance attached by Congress to that provision, the unfortunate fact is that EPA's implementation of section 309 has been tragically inadequate."

4. 42 U.S.C. § 4321, ELR 41009 (January 1, 1970).

5. "NEPA — Reform in Government Decision-making," Chapter 7 of Environmental Quality: The Third Annual Report of the Council of Environmental Quality, (August 7, 1972) 2 ELR 50025.

6. 42 U.S.C. § 4341 et seq., ELR 41010 (January 1, 1970). Title II of NEPA created CEQ and specified the duties and functions of the Council.

7. 42 U.S.C. § 4344(3), NEPA § 204(3), ELR 41011 (January 1, 1970). See Guidelines, 38 Fed. Reg., August 1, 1973).

8. CEQ Third Annual Report, supra, note 5, 2 ELR at 50034. See also Liroff, The Council on Environmental Quality, 3 ELR 50051 (August, 1973).

9. Id.

10. Anderson, NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act, 12-13, 280 (1973). Published by Johns Hopkins University Press and available from ELR, $6.95 per copy.

11. 42 U.S.C. § 1857 h-7, ELR 41226-27 (Clean Air Act Amendments), (December 31, 1970). This provision of the Clean Air Act has been properly characterized as "relatively obscure" yet "crucially important." Comment, Section 309 of the Clean Air Act: EPA's Duty to Comment on Environmental Impacts, 1 ELR 10147 (Sept. 1971). The legislative history of the provision is minimal. See S. Rep. No. 91-1196, 91st Cong., 2d Sess. at 43 and 66 (Sept. 17, 1970); 116 Cong. Rec. at 42384 and 42386 (Senate debate on the Clean Air Act upon its passage); Senate Public Works Committee Hearings on the Nomination of William Ruckelshaus as EPA Administrator, 91st Cong., 2d Sess at 45-46 (Dec. 1 & 2, 1970) (Comm. Print 1970) (library citation K 38, p.9, 91:2, W). Section 309's importance seems to have been overshadowed in the Clean Air Act's legislative history by the congressional debate surrounding the Act's auto emission control standards. There have to date been no helpful judicial interpretations of § 309. See note 87, infra.

12. "The attractiveness of § 309 to environmentalists is that it provides a mechanism — the best we have — within the Executive Branch for screening out the worst federal projects for special interagency and public scrutiny." Letter from Mr. Speth, supra note 3. "After it is implemented, § 309 will bring out into the open for further evaluation the inevitable differences of opinion between 'developmental' and 'environmental' agencies." Comment, supra note 11.

13. "[Section 309] crosses the t's and dots the i's of NEPA's premise that responsible decision-making is more likely to occur when agencies assist each other and the public is informed." Comment, supra note 11, 1 ELR at 10147.

14. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 43 (1970).

15. "Early this year, the President signed P.L. 90-190, the National Environmental Policy Act. One of the important provisions of the Act is section 102(c), requiring every agency of the Federal Government to evaluate carefully the environmental impact of proposed activities… [T]he Act does not assure that Federal environmental agencies will effectively participate in the decision-making process. It is essential that mission-oriented Federal agencies have access to environmental expertise in order to give adequate consideration to environmental factors. In order to remedy this situation [§ 309 requires EPA to review impact statements.]" Id.

16. 116 Cong. Rec. S-20602 (daily ed. Dec. 18, 1970). This remark was made by Senator Muskie as he submitted the conference report to the Senate.

17. Council on Environmental Quality Guidelines, "Statements on Proposed Federal Actions Affecting the Environment," 36 Fed. Reg. 7724, ELR 46049 (April 23, 1971), sections 10(e), (f) & (g). For background regarding public access to NEPA statements and agency comments, see Comment, Recent Activity in the Administrative Implementation of the National Environmental Policy Act, 1 ELR 10005 (Jan. 1971), and 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 10024 (Fed. 1971).

18. "NEPA implements in federal decision-making a finelytuned balancing process which requires federal agencies to weigh a vast range of environmental values against antithetical values before agency action may be taken." See Calvert Cliffs' Coordinating Committee v. AEC, 1 ELR 20346 (1971). "Section 309(b) allows the Administrator of EPA to ask [CEQ] for an administrative review of a proposed decision which has apparently failed to balance environmental factors adequately." Comment, supra note 11, 1 ELR at 10150 (Sept. 1971).

19. Senate Public Works Committee Hearings on the Nomination of William Ruckelshaus as EPA Administrator, 91st Cong., 2d Sess. at 45-46 (Dec. 1 & 2, 1970).

20. See Reorganization Plan No. 3, 3 C.F.R. 199 (Comp. 1970), 42 U.S.C. § 4321 (1970), ELR 48001 (July 9, 1970).

21. 42 U.S.C. § 4344(3), ELR 41011 (January 1, 1970).

22. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 66 (1970). EPA shall review impact statements "where they relate directly or indirectly to any matter or duties arising under this Act." (emphasis added).

23. Comment, supra note 11, 1 ELR at 10149.

24. With regard to the last of these categories, EPA contends that it is not obligated to comment on newly authorized construction unless it is a "major federal action significantly affecting the quality of the human environment." It interprets the limiting clause of 309(a) (2), "to which section 102(2)(c) of [NEPA] applies," as modifying both "newly authorized Federal projects for construction" and "major Federal agency action (other than a project for construction)." This interpretation is reflected in EPA Order 1640.1, Review of Federal Actions Impacting the Environment, chapter 4, para. 1c. (Nov. 30, 1972). In practical effect, the distinction is not particularly significant, as impact statements are prepared for federal construction projects in nearly every case.

25. 42 U.S.C. § 4332(C), NEPA § 102(2) (C), ELR 41009.

26. Anderson, NEPA in the Courts, supra note 10, at 232.

27. Id. at 11-13. See also Comptroller General of the United States, Report to the Subcommittee on Fisheries and Wildlife Conservation, House Committee on Merchant Marine and Fisheries, Improvement Needed in Federal Efforts to Implement the National Environmental Policy Act of 1969 51 (May 18, 1972). "Only a limited number of the statements had been prepared on the proposed legislation and OMB was not requiring Federal agencies to furnish the statements as a prerequisite for legislative clearance, except for water resources projects."

28. The Senate version of § 309(b) — § 310(b) of S-4358, originally read as follows:

Section 310(b). In the event the Secretary determines that such a detailed statement or such proposed regulations is unsatisfactory from the standpoint of public health or welfare or environmental quality, the matter shall be referred to the Council on Environmental Quality for a determination and recommendation to the President which shall be made public. [emphasis added]

The elimination of the requirement that CEQ make public its recommendation to the President was the most significant change in the Senate's version of § 309. Other alterations of the Senate version include adding the requirement that EPA's comments on agency action be in writing and be made public, and the requirement that EPA review proposed legislation as well as regulations, construction, and other action to which NEPA applies.

29. See 115 Cong. Rec. S-1745 (daily ed. Dec. 20, 1969), where Senator Jackson remarked that agency decisions under NEPA are to be made "in light of public scrutiny," and S. Rep. No. 91-296, 91st Cong., 1st Sess. 5-6 (1969), where the Senate Report on the bill that, with minor amendments, became NEPA, stated:

Environmental decision-making largely continues to proceed as it has in the past. Policy is established by default and inaction. Environmental problems are dealt with when they reach crisis proportions. Public aspirations and decisions are seldom consulted. Important decisions concerning the use and shape of man's future continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of decades…. In view of this situation, the committee …. reported [NEPA] to the floor of the Senate. [emphasis added]

NEPA itself expressly requires the federal government to work "in cooperation with … concerned public and private organizations" to achieve NEPA's objectives. NEPA § 101(a), Peterson, supra note 2, 1 ELR 50035.

30. See Comments on the Proposed Guidelines of the Council on Environmental Quality on Statements on Proposed Federal Action Affecting the Environment, 17-19, submitted to CEQ by the National Resources Defense Council, National Wildlife Federation, Environmental Defense Fund, Sierra Club, and National Parks and Conservation Association (June 25, 1973).

31. See Hearings on Federal Agency Compliance with Section 102(2) (c) and Section 103 of the National Environmental Policy Act of 1969 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 91st Cong. 2d Sess. 56 (December 1970). The remarks of CEQ Chairman Train indicate that CEQ will not jeopardize its relationship to the President unnecessarily.

32. Executive Order 11514, Protection and Enhancement of Environmental Quality, 35 C.F.R. 4247, ELR 45003, (March 5, 1970) directs CEQ to "coordinate Federal programs related to environmental quality," "issue guidelines for the preparation of detailed [NEPA] statements," and "issue other instructions to agencies … as may be required to carry out the Council's responsibilities" (which include taking leadership in protecting and enhancing our nation's environment). Moreover, § 102(2) (B) of NEPA requires agencies to develop procedures for insuring consideration of environmental amenities in decision-making "in consultation with the Council on Environmental Quality." CEQ, therefore, has ample authority to suspend agency action pending its consideration of proposals under § 309(b).

33. E.O. 11514, supra note 32, § (3) (h) directs CEQ to "issue guidelines to Federal agencies for the preparation of detailed [NEPA] statements."

34. Id. Section 3(a) directs CEQ to "seek resolution of environmental issues." Section (3) (d) gives CEQ authority to hold public hearings on issues of environmental significance whenever it deems them to be "appropriate." Hearings would certainly be "appropriate" under these circumstances.

35. 42 U.S.C. § 4344(3), NEPA § 204(3), ELR 41011 (January 1, 1970).

36. See Senate Public Works Committee Hearings on the Nomination of William Ruckelshaus as EPA Administrator, supra note 19, at 45. Senator Muskie noted that CEQ has "a responsibility for seeing to it that whenever an environmental evaluation is made [under § 309] … that that evaluation enters the public domain" immediately.

37. See, e.g., Note, Clean Air Act Amendments of 1970: Congressional Cosmetic, 61 Geo. L.J. 153, 172 (1972):

"Existing evidence appears to demonstrate that intense political … clout prevented EPA, an agency of the executive department and far from independent, from fully adhering to the specific statutory mandate and intent of Congress in the promulgation of the Clean Air Act Amendments of 1970 …. An intensive examination of recent EPA leadership was conducted in February and March of 1972 when the Air and Water Pollution Subcommittee conducted oversight hearings on EPA implementation of the Clean Air Act Amendments of 1970 …. One of the major allegations was that EPA has permitted the Executive Office of Management and Budget (OMB) to control decision-making."

It should also be pointed out that both EPA and CEQ have their budgets reviewed by the potentially hostile House Appropriations Committee Subcommittee on Agriculture, Environment and Consumer Protection. Jamie L. Whitten, Representative from Mississippi, who chairs this committee (and who also sits on the Joint Committee on Reduction of Federal Expenditures) exhibits his unsympathetic attitude toward EPA and CEQ openly:

I must preside over the annual funding request 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. Speech of Representative Jamie Whitten, the 26th National Association of Conservation Districts, at 12-13 (February 15, 1972).

38. CEQ Third Annual Report, supra note 5, at 2 ELR 50026.

39. See Reorganization Plan No. 3, 3 C.F.R. 199 (Comp. 1970), 42 U.S.C. § 4321 (1970), ELR 48001 (July 9, 1970).

40. EPA comments on agency proposals, for instance, were sometimes published several days or even weeks after agency action had already been taken. This proved particularly embarrassing when EPA publicly announced its reasons for opposing the widespread use of Mirex pesticides in the southern states as a mean of controlling fire-ants subsequent to a massive spraying campaign. CEQ guidelines now require agencies to wait 90 days after circulation of draft statements and 30 after circulation of final statements before action is taken. The initial decision to conduct all impact statement review at EPA's central headquarters also became unworkable as the number of impact statements submitted to EPA daily began to exceed all expectations. When the backlogs of due and overdue comments reached massive proportions, EPA decided that reviewing responsibility had to be farmed out to its ten regional offices in all but unusual circumstances. Decentralization of the reviewing process while alleviating the comment backlog, involves its own peculiar difficulties. Each region has idiosyncratic priorities and relationships with impacting agencies. Each devotes different resources to the reviewing process, and some are characteristically more critical of agency actions than others. The Office of Federal Activities (OFA) is currently conducting a study of regional implementation of the reviewing process and plans to develop suggestions for improving and regularizing regional review processes. OFA, for example, may suggest that regions conduct independent spot checks on the veracity of the factual data contained in at least 10 percent of impact statements.

41. Section 309's legislative history states that "The Committee intends that the procedures be expeditious and not become an obstruction to the flow of proposals and activities in the Federal Government." S. Rep. No. 91-1196. 91st Cong., 2d Sess. 43 (1970). The Senate's recent passage of the Gravel amendment, exempting the Trans-Alaska pipeline from NEPA's requirements, verifies EPA's feeling with regard to congressional willingness to circumvent NEPA. For another example of congressional circumvention of NEPA, see Kross, Preparation of an Environmental Impact Statement, 44 Colo. L. Rev. 81, 132 (1972), which discusses the congressional grant of authority to AEC to issue temporary operating licenses to nuclear power plants in power-short areas without compliance with NEPA.

42. Available from EPA Office of Public Affairs.

43. Environmental Protection Agency, Air/Water Pollution Report 118 (March 22, 1971).

44. Id.

45. CEQ Guidelines, supra note 17, § 8.

46. See EPA Order 1640.1, Review of Federal Actions Impacting the Environment, Chapter 1, para. 3, (Nov. 30, 1972). By reviewing federal actions impacting the environment EPA intends to accomplish the following: "(1) provide technical assistance to Federal, State, regional and local entities; (2) support the environmental protective activities of the Agency and other Federal, State, regional, and local entities; and (3) assist Federal agencies in meeting the objectives of the National Environmental Policy Act." (emphasis added) These policy objectives notably focus on cooperative aspects of EPA's NEPA responsibilities, and do not mention its duty to take steps to prevent environmentally harmful agency actions by publicly announcing their inadequacy and referring them to CEQ.

47. The impression conveyed by CEQ to certain EPA officials, whether accurate or inaccurate, is that CEQ would prefer not to see § 309 fully implemented. As stated in the CEQ Third Annual Report, supra note 5, 2 ELR at 50034-35, "The Council velieves that the consideration of environmental factors will be most effective if it comes in the early stages of program and project formulation. If the 102 process is not closely integrated at this early point, it risks becoming an overlay upon agency decision making. And it tends to serve as a post facto justification of decisions based on traditional and narrow grounds … The Council's goal is to make the 102 process self-implementing so that environmental factors will receive proper attention without needing frequent Council or court intervention." This approach to NEPA's implementation, however, praiseworthy it may be, may have caused the Council to shy away from the "tardy" policing functions Congrfess assigned to it under § 309(b).

48. "Controversies" and "complications" gave EPA an aversion to conducting review of final statements under § 309(b):

[E]nvironmental controversies to date point out the need for early EPA involvement in the [agency] planning processes to effect changes responsive to NEPA and other Agency objectives. Many proposals when submitted are too far advanced for us to change without creating complications. The provisions and intent of NEPA is basically a planning tool which should be incorporated early in the plan and project formation. Early EPA involvement, when possible, would enable us to meaningfully guide the plans and projects towards an acceptable course. Hopefully, this would minimize future environmental controversies….

Memorandum from Acting Director, Division of Planning and Interagency Programs and Acting Director, Division of Municipal Waste Water Programs to all regional administrators concerning Review of Environmental Review Procedures of Water Quality Management Plans and Municipal Waste Water Projects (Dec. 22, 1971). One illustration of EPA's uphill effort to maintain constructive influence over agency proposals is its precarious relationship with the "mission-oriented" Atomic Energy Commission. AEC's goal is the expeditious development of nuclear power. It employs hundreds of scientists, while EPA has only a small staff responsible for commenting on complex nuclear issues of great environmental consequence within 30 to 45 days, solely on what information about the project it can glean from the impact statement. On many issues, such as the ability of the emergency core cooling system to contain loss of coolant radioactive explosions, it is politically infeasible for EPA to challenge AEC because AEC has a virtual monopoly of scientific expertise in the field of atomic energy. On less technical issues, where EPA is more qualified to challenge AEC, EPA knows that any significant challenges to AEC's proposals will result in heightened animosity of AEC toward EPA, and possible repercussions from an administration publicly committed to the development of nuclear power.

49. CEQ Guidelines, supra note 17, § 8, "Interim Procedures for Implementation of Section 309 of the Clean Air Act, as amended," ELR 46050.

50. "Guidelines for Designating the Nature of EPA Comments" attached to a memorandum issued by Deputy Administrator Robert Fri on October 18, 1971. Prior to issuance of these guidelines, there appear to have been few, if any, formal or informal guidelines specifically addressing § 309's implementation.

51. Id. Category explanations are also set forth in each publication of comment summaries in the Federal Register.

52. Id.

53. This data is a compilation of EPA's bi-weekly notices in the Federal Register. The Federal Register publications contain the following information: name of project, location of project, code number of project, agency proposing the project, summary comment category assigned to each project, explanations of the comment categories and place where full comments can be obtained. The data published during this period in the Federal Register occasionally contains statistical tabulation errors.

54. That EPA was reluctant to make highly critical category IV ratings of agency action at the draft stage because of its political vulnerability see Liroff, EPA Comments on Environmental Impact Statements: One Indicator of Administrative Response to the National Environmental Policy Act of 1969 6 (unpublished paper prepared at the Brookings Institution, October 1972).

55. See note 53 supra.

56. The percentage of impact statements not submitted to EPA at the draft level is small. At the final statement level, however, EPA is receiving only about one-third the amount that CEQ receives.

57. EPA Order 1640.1, Review of Federal Action Impacting the Environment, supra note 24. This EPA manual, issued Nov. 30, 1972, sets forth the first formal detailed scheme for implementing § 309 promulgated by EPA since § 309's passage.

58. Id., Chapter 3, para. 1 c. (1).

59. Id., Chapter 3, para. 1 c. (2).

60. AEC nuclear power plants, for instance, are "controversial projects" which are reviewed at EPA central headquarters.

61. EPA Order 1640.1, supra note 24, Chapter 3, para. 4 a.

62. The Senate version of § 309 (see note 28, supra) required EPA to determine the adequacy of "detailed statement[s] or … proposed regulations." (emphasis added) However, this was altered by the Conference version, and § 309 now requires EPA to determine the adequacy of "legislation, action, or regulations." Arguably, the emphasis of EPA's § 309(b) review was shifted away from review of the procedural adequacy of impact statements toward review of the substantive merits of proposals by this change. Inasmuch as this shift eliminated the requirement that EPA consider the procedural adequacy of impact statements, EPA's limitation of its final statement review to the proposal's substantive acceptability meets § 309(b)'s requirements. Certainly, EPA has authority under § 309(b) to comment on the procedural adequacy of final impact statements if it so desires.

63. Id., Chapter 3, para. 4 c. (1). The requirements for preparing memoranda when no formal comments are written has not been enforced, and therefore no record of EPA review of such finals exists.

64. See e.g., Letter to Mr. Alvin Alm, Staff Director for Program Development, Council on Environmental Quality, from Sheldon Meyers, Office of Federal Activities Director, June 22, 1973.

65. This data is a compilation of EPA's bi-weekly notices in the Federal Register. The data is also available in EPA press releases, and in the CEQ "102 Monitor" at monthly intervals. The Office of Federal Activities (OFA) is making efforts to improve the accuracy of the data publications. After reviewing the May 1-30, 1973 comment data published in 38 Fed. Reg. 15865 (June 18, 1973), for instance, OFA discovered that under Department of Interior listings, three projects listed as located in Missouri are actually located in Montana. Were such an error to go unnoticed or not be subsequently corrected in errata publications, EPA would not be meeting its statutory obligation to publish § 309 comments.

66. 114 proposals were rated "3" or "4."

67. 384 were rated "ER," "EU," "2," or "3."

68. The only EPA comment that criticized a final statement issued during this period concerned the Indian Point Nuclear Power Plant. See 38 Fed. Reg. 10668 (Apr. 30, 1973).

69. The actual number of final impact statements reviewed during this period is speculative because there is no record of EPA review in those circumstances when the EPA reviewer had no objections to the agency proposal and opted not to prepare formal EPA comments. See note 63 supra. From the total absence of derogatory comments, however, and the low number of favorable comments, one must assume that the number of final statements receiving thorough substantive review was low in comparison to the number which EPA had an obligation to review.

To properly conduct the statutorily mandated § 309(b) evaluation process, it would seem necessary to keep some record of all decisions made, even if only "unsatisfactory" determinations need be published. Moreover, it would be extremely helpful from the point of view of public appraisal of EPA operations, for EPA to publish at least nominal comments for every final statement it reviews.

70. See note 86 infra.

71. Proposed CEQ Guidelines for the Preparation of Environmental Impact Statements, 38 Fed. Reg. 10856 (May 2, 1973), part 10(b). See generally, Comment, CEQ Proposes New Guildelines for NEPA, 3 ELR 10056 (May, 1973).

72. Compare EPA Order 1640.1, Review of Federal Actions Impacting the Environment, note 24 supra, with "Guidelines for Designating the Nature of EPA Comments" attached to a memorandum issued by Deputy Administrator Robert Fri on October 18, 1971.

73. Memorandum from Office of Federal Activities Director Sheldon Meyers to the EPA Administrator entitled "Criteria Respecting Referrals of Unsatisfactory Projects to CEQ under Section 309(b) of the Clean Air Act," (April 9, 1973).

74. Id.

75. Nevertheless, EPA found eighteen regulations warranting § 309 review during the month of June 1973. This is three times greater than the total number of regulations reviewed by EPA in the preceding six months.

76. See e.g., letter to Mr. WarrenF. Brecht, Department of Environmental Quality Officer, Department of the Treasury, from OFA Director Sheldon Meyers (July 17, 1973).

77. 38 Fed. Reg. 19068 (July 17, 1973).

78. Id., Appendix III (Federal Highway Administration highway project in Pike County, Kentucky).

79. Id., Appendix III (Corps of Engineers flood protection project in Alexandria and Arlington County, Virginia).

80. Id., Appendix III (Tennessee Valley Authority Brown's Ferry Nuclear Power Plant in Tennessee and Corps of Engineers dam construction in Tioga County, Cowanesque Lake, Pennsylvania).

81. Id., Appendix III.

82. This formal notification resembles that which is called for in the proposed CEQ guidelines, supra, note 71. The proposed guidelines require that "In all cases where EPA determines that proposed agency action is environmentally unsatisfactory, or where EPA determines that an environmental statement is so inadequate that such a determination cannot be made, EPA shall notify the Council on Environmental Quality as soon as practicable." The wording of this requirement makes an obvious reference to EPA's draft statement categories "EU" and "3." Informal notification of CEQ by EPA of its draft comments will allow CEQ to work with various agencies regarding EPA's comments prior to issuance of the final statement if it so desires. However, such informal notification does not initiate CEQ's § 309(b) review of the proposal. Only a letter from EPA formally referring an "unsatisfactory" agency action explicitly under its § 309 authority can obligate CEQ to conduct a § 309 review.

83. Leon Billings, Staff Director of the Senate Public Works Committee Subcommittee on Air and Water Pollution, was the principle draftsman of § 309.

84. Senate Public Works Committee Hearings on the Nomination of William Ruckelshaus as EPA Administrator, 91st Cong., 2d Sess. 45, 46 (Comm. Print 1970). Senator Muskie was one of the principal draftsmen of the Clean Air Act, and was present at the Senate hearings and committee discussions of the Act. His remarks are consistent with the various committee reports. Moreover, Senator Muskie's discussion with Mr. Ruckeshaus was referred to in § 309's legislative history at 116 Cong. Rec. S 20602 (daily ed. Dec. 19, 1970) and arguably was incorporated into the legislative history by these remarks.

85. 42 U.S.C. § 1857 h-2, Clean Air Act, as amended, § 304, ELR 41224 (Dec. 31, 1970).

Focusing solely on EPA's failure to review final statements on those projects which had serious shortcomings at the draft state, there are numerous instances of EPA non-compliance with its own procedures for implementing § 309 which may be cited. For instance, final statements on the following projects were not even received by EPA, let alone reviewed or commented on, as of May 31, 1973:

(1) Department of Agriculture mosquito control program in Coronado National Forest, Arizona; rated "3" at the draft stage (old comment categories): final statement received by CEQ on July 25, 1972.

(2) 2 Department of Interior construction of Huntington Canyon Generating Station, Utah; rated "3" at the draft state (old comment categories): final statement received by CEQ on May 15, 1972.

(3) Department of Transportation construction of Route 66 in Fairfax and Arlington Counties, Virginia; rated "3" at the draft stage (old comment categories); final statement received by CEO on May 19, 1972.

Two cases have discussed § 309 to date. In National Forest Preservation Group v. Butz, 343 F. Supp. 696, 2 ELR 20571 (D. Mont. 1972) plaintiffs sought to a temporary restraining order to prevent the Secretary of Agriculture from trading national forest land for land owned by Burlington Northern railroads. The court's reference to EPA's review responsibilities under the Clean Air Act consisted of less than a paragraph. It noted that EPA's failure to comment did not warrant enjoining agency action because (1) EPA was afforded adequate opportunity to comment, (2) the public had ample opportunity to review the impact statement, (3) no harm resulted from the absence of EPA's comment and (4) plaintiff did not raise the issue of EPA's failure to comment in previous administrative proceedings. The Court in National Forest Preservation Group "[did] not appear to have grasped the import of section 309, if it was aware of the section at all." Anderson, NEPA in the Courts, supra note 10 at 230.

In the second case, Citizens Environmental Council v. Volpe, 3 ELR 20077 (D. Kansas, Jan. 3, 1973), plaintiffs sought to enjoin highway construction because among other things, § 309 had not been fully complied with. The final statement was completed by the Department of Transportation and filed with CEQ on August 18, 1971. When suit was brought three months later, EPA had not yet commented on the final statement. It was not until May 4, 1972, in an attempt to moot plaintiffs claim, that EPA prepared its comment on the project's final statement.Plaintiffs contended that EPA "failed to make an independent investigation and determination of the environmentatal impact of the project and that [this] failure to do so was arbitrary and capricious, and prevented reference of the project to the Council on Environmental Quality for further review." The court did not directly address this contention, but merely balanced the equities of the situation:

"To enjoin the construction of this highway after twelve years of effort to obtain it because a relative few persons wish it to be used as a recreational area is neither reasonable, practical or equitable. There must come a time, after the passage of years, when a needed public improvement such as this one, ought to be built."

Obviously, neither of these cases provides much guidance concerning EPA's § 309 obligations.

3 ELR 50071 | Environmental Law Reporter | copyright © 1973 | All rights reserved