EPA to Prepare Impact Statements on Major Actions, Train Announces

Russell Train, EPA Administrator, told the Senate Subcommittee on Environmental Pollution on April 10, 1974, that the agency he heads will henceforth prepare full-fledged impact statements on its major actions.¹ Since January 1 of this year, EPA had been issuing "environmental explanations," designed to serve the function of an impact statement without seeming to concede that NEPA obligated EPA to prepare statements.² In his testimony, Train held to the position that impact statement preparation was not required by law, and said that the decision might be reversed if the agency found that the new policy was interfering with its operations.

Almost from the day of NEPA's enactment, the question of its applicability to environmental agencies has been in dispute. The Environmental Protection Agency has consistently taken the position that it is not required by law to prepare impact statements on its major actions, and that to impose such a duty on EPA would only interfere with its efforts to preserve the environment. Many environmentalists have argued that although the impact statement process might be used by polluters to delay or obstruct necessary agency action, the long-range advantages of EPA compliance with NEPA outweight the drawbacks: administrations, administrators, and policies are all subject to change, and it would be imprudent to assume that the agency's commitment to the cause of environmental protection will necessarily always be beyond reproach. They contend, moreover, that it is anomalous for EPA to be assisting in the impact statement review process while itself remaining exempt, and that Congress could have written a specific exemption for environmental agencies into the law if it had wished to do so. The Courts of Appeals that have considered the issue have so far sustained EPA's position in each case, although the D.C. Circuit in a 1973 decision³ ruled that the EPA Administrator's written explanation of the action in question was the "functional equivalent" of an impact statement; the court indicated strongly that on different facts, it might well have found an impact statement to be required.

Last fall, however, the Comptroller General, in a memorandum prepared for Congress, stated that EPA was in fact required to prepare impact statements, and the House Appropriations Committee appropriated $5 million for the purpose.⁴ That action had the support of Rep. Jamie Whitten (D-Miss.), an influential member of the Appropriations Committee and one of the pesticide industry's firmest friends on Capital Hill, and of Rep. John Dingell (D-Mich.), a sponsor of NEPA and a dedicated environmentalist.

Sen. Edmund Muskie, (D-Me.) chairman of the subcommittee and a firm opponent of requiring environmental agencies to prepare impact statements, questioned Train closely on the reasons for the agency's shift of policy. Muskie suggested that if Train still held to the view that NEPA did not require impact statements of EPA, the agency was in essence submitting to amendment of the statute through the appropriation process instead of by formal legislative amendment. Train conceded that the decision was made in response to pressure from the Appropriations Committee, and that EPA also planned to comply with the Committee's desire to see "economic and social factors" taken into account in impact statements.

As the impeachment crisis nears resolution, speculation has been widespread that in order to placate southern and western conservatives whose votes the President may need, the Administration has been forced to make substantial concessions in the environmental field. The scuttling of the land use bill is taken by many as a prime example of this; EPA's decision to accede to Rep. Whitten's wishes is likely to be seen as another. On the other hand, Rep. Dingell believes that whatever the immediate motivation for the Administration's change of policy, the environment will in the long run be the beneficiary.

He intends to press action on a bill he introduced in February⁵ to amend NEPA so as to make explicit — and mandatory — the requirement that EPA prepare impact statements on new standards and guidelines. Supporters of NEPA have reason to be cautious with regard to any effort to amend the statute at this time, because of the risk of opening the door to additional amendments, designed to weaken the act. On balance, however, environmentalists can support the Dingell measure, and can regard EPA's decision, even if made under pressure from NEPA's enemies, as a positive development for the long-term usefulness of the statute.

1. N.Y. Times, Apr. 11, 1974, at 19, col. 1.

2. 38 Fed. Reg. 15653 (June 14, 1973). See generally Comment, Halfway There: EPA's "Environmental Explanations" and the Duty to File Impact Statements, 3 ELR 10139 (Sept. 1973).

3. Portland Cement Association v. Ruckelshaus, 3 ELR 20642 (D.C. Cir. June 29, 1973).

4. See Comment, EPA's Responsibilities Under the National Environmental Policy Act: Further Developments, 3 ELR 10157 (Oct. 1973).

5. H.R. 12782, 93d Cong., 2d Sess. (1974).