In 1971, a prominent citizen of Glens Falls, New York, sought to persuade municipal officials that the city needed a swimming pool in one of its parks, and suggested that the pool be built to commemorate a deceased friend.To demonstrate his dedication to the project, the wealthy promoter offered to raise half of the city's share of the construction costs from private sources. The city, responding to this incentive and to pressure from local contractors, drew up a proposal for pool construction that sought fifty percent funding from the Bureau of Outdoor Recreation of the Department of the Interior, the other half to be covered by local monies. A group of local citizens were not as convinced as the city fathers of the wisdom of the proposal. They contended that the swimming pool, parking lots, changing facilities, and related structures would alter the park's natural setting and create traffic flows, noise, and crowd management problems not in keeping with the character of the park. Some also objected to the burden that pool maintenance costs would place upon the city budget.

Although there were no local public hearings or other forums through which the citizens could effectively express their discontent, the lawyers for the citizens' group¹ discovered and utilized a little-known device for influencing federal aid applications that proved quite effective in halting the pool construction proposal. The device which the lawyers used is a procedure of the Office of Management and Budget that requires all applications for federal assistant under certain programs to be reviewed and commented upon by state and areawide "clearinghouses." The citizens' group filed alternative viewpoints with the state and areawide clearinghouses, contending that the pool proposal was inconsistent with the present nature of the park, contrary to land use plans for the area, a region with numerous lakes, and would create significant adverse environmental effects. The clearinghouse review process provided an unexpectedly valuable point of access to state and local decision making processes; direct and indirect pressure on the review and comment procedure resulted in withdrawal of the city's application and abandonment of the pool project.

There are currently state clearinghouses functioning in every state, as well as over four hundred and eighty areawide clearinghouses. All these review and commenting agencies are functioning under authority of Office of Management and Budget Circular A-95, first issued July 24, 1969,² which declares that every federal grant application under more than one hundred and fifty federal assistance programs must be sent to such clearinghouses prior to formal application to the federal funding agency. Circular A-95 grants no state or areawide veto power over applications, but does provide an important opportunity for state and local governments to influence federal evaluation of the applications.

The Glens Falls experience is only one example of how OMB Circular A-95 can be a powerful environmental tool for private citizens; the system of clearinghouses, in coordination with state and local general purpose governments, performs at least four other important public environmental functions. First, the clearinghouses are a designated means by which state and local governments are to comment upon draft environmental impact statements involving federal actions which affect their jurisdiction.³ Second, a "Project Notification and Review System" established by circular A-95 gives clearinghouses, and through them, local governments, an early opportunity to review and comment upon environmental, social, and economic effects of many federal or federal-aid projects which affect them. This opportunity for review and comment is unique because it comes before an applicant for federal funds submits his application to the federal agency involved, or in the case of a direct federal project at the earliest practicable time in the planning of the project or activity; this timing is almost without exception prior to formulation of a draft impact statement. Third, the Project Notification and Review [4 ELR 50044] System (PNRS) by its very existence facilitates and encourages coordination in environmental policy making, one of the objectives of the National Environmental Policy Act.⁴ Finally, the procedures of circular A-95 enable and encourage regional, state and local agencies to perform independent environmental evaluation of non-federal as well as federally-funded projects.

The potential of A-95 as a tool of environmental evaluation is immense; its actual effectiveness is at present significantly less. The A-95 review process is still a sleeping giant whose awakening could greatly strengthen the National Environmental Policy Act and encourage environmental assessment of non-federal actions. This article will seek to present and evaluate the A-95 review process, with emphasis upon how the role of regional clearinghouses in project notification and review can increase environmental responsibility in federal and non-federal actions, and how the private sector lawyer can use A-95 to gain early influence over governmental decisions, taking fullest advantage of the strengths, weaknesses, and peculiarities of an underutilized tool.

Regional Coordination Needs

Many Americans lament the process of urbanization that has beset the nation. To the urban planner, an even bigger headache is metropolization — the development of contiguous urbanized areas under separate local governments. In a metropolitan area, the perceived needs and goals of one jurisdiction may differ radically from those of its neighbor. The relationship between city and suburb comes readily to mind as an example of how adjacent jurisdictions might hold conflicting goals; even more complex is metropolization of several distinct urban centers, as is happening on a large scale in "Bos-Wash," the continuous urban corridor between Massachusetts and the District of Columbia.

Obviously, in such a situation the actions of one jurisdiction may directly affect the interests of another. Even in a less urbanized area, many actions or policies of one town may affect the environment or economy of nearby towns. Less obvious, but of equal importance, is the fact that actions by single local governments, though not in conflict with the goals of nearby jurisdictions, may suffer from diseconomies of scale spawned by lack of intergovernmental cooperation.

The federal government can play an embarassing role in creating intergovernmental conflict. For instance, federal officials would be disconcerted to discover that the federal-aid highway which they have helped city A to build empties into city B's most beautiful park, which was improved with federal funds; or that city A is applying for federal grants to aid construction of domestic water purification facilities to compensate for river contamination caused by city B's new federally-assisted sewage system. As federal-aid programs grow more numerous and the scale of funding becomes more massive, the likelihood of such federally-assisted conflicts increases. Congress and federal administrative agencies have recognized this problem, and have begun to condition some federal assistance on proof of intergovernmental and intragovernmental planning and coordination.

Evolution of a Federal Response

The first significant federal incentive to comprehensive regional planning was Section 701 of the Housing Act of 1954,⁵ which provided 50-50 grants-in-aid for planning on a metropolitan basis by official state, regional, or metropolitan planning agencies. Although early "701" grants tended to support planning on a municipal rather than a metropolitan basis, the program did begin to encourage formation of regional and metropolitan planning bodies; at least thirteen states passed regional planning enabling acts between 1954 and 1957.⁶ A major change in 701 policy came in the Housing Act of 1959,⁷ which stated its goal as "comprehensive" planning, rather than "urban" planning, and encouraged intergovernmental planning coordination. Most importantly, the Act of 1959 required that "[p]lanning assisted under this section shall, to the maximum extent feasible, cover entire areas having common or related problems."⁸ This provision was interpreted to require the existence or formation of a local agency with authority to plan in the entire common or related area.⁹

In 1966, the Congress provided another important federal encouragement to regionalism that laid much of the groundwork for the A-95 system of regional clearinghouses. The Demonstration Cities and Metropolitan Development Act of that year¹⁰ included a provision that all local government applications seeking federal aid under thirty-nine different grant and loan programs¹¹ must first be submitted to "any areawide agency [4 ELR 50045] which is designated to perform metropolitan or regional planning for the area within the assistance is to be used …."¹²

In addition to requiring submission of applications to areawide agencies for review, the Demonstration Cities and Metropolitan Development Act of 1966 requires an applicant for areawide program assistance to demonstrate that areawide plans exist, that institutions exist to coordinate those plans with proposed activities, and that such coordination is in fact being carried out. The applicant then has to submit its proposal to such a planning body for review. The Office of Management and Budget issued circular A-82, a predecessor to A-95, to implement the statutory requirements of this act.

The most direct spur to the issuance of Circular A-95 came in Title IV of the Intergovernmental Cooperation Act of 1968,¹³ which recognized the need for "sound and orderly development of all areas, both urban and rural."¹⁴ The Act also recognized the interdependence of urban and rural growth and activities, and mandated the President, through the Office of Management and Budget,¹⁵ to "establish rules and regulations governing the formulation, evaluation, and review of Federal programs and projects having a significant impact on area and community development, including programs providing Federal assistance to the States and localities …"¹⁶ OMB issued Circular A-95 in response to this mandate, incorporating into it the less comprehensive provisions of circular A-82.

OMB Circular A-95

Office of Management and Budget Circular A-95¹⁷ cites three statutory enactments as its basis: section 204 of the Demonstration Cities and Metropolitan Development Act of 1966, Title IV of the Intergovernmental Cooperation Act of 1968, and the National Environmental Policy Act of 1969. The history of the first two acts in the development of the A-95 process has been set forth previously; the relationship of A-95 to the National Environmental Policy Act (NEPA) is central to this discussion, and will be set forth at some length subsequently.

Circular A-95 has five parts. The fifth part, entitled "definitions" is critical to a grasp of A-95 review, for it is there that OMB sets forth the meaning of "clearinghouses." There are two types of clearinghouses, state and areawide. An areawide clearinghouse may itself be one of two types, metropolitan or non-metropolitan. A state clearinghouse is an agency of the state government designated by the Governor or state law to carry out the functions of A-95 review. Both types of areawide clearinghouses are also to perform A-95 review. A non-metropolitan areawide clearinghouse is "a comprehensive planning agency designated by the Governor (or Governors in the case of regions extending into more than one state) or by state law … "¹⁸ By contrast, a metropolitan areawide clearinghouse is not required by the terms of the circular to be a "planning" agency, and is designated by OMB, not by the Governor. However, since Circular A-95 does require that metropolitan clearinghouses perform review functions under section 204 of the Demonstration Cities and Metropolitan Development Act, those clearinghouses are also comprehensive planning bodies.¹⁹ Further, OMB reports that it seeks a Governor's approval before designating metropolitan clearinghouses,²⁰ so the two types of areawide agencies will both in practice be state-designated. In sum, there is no difference between the two sub-types of areawide clearinghouses that does not inhere in the nature of the regions they serve. As of September, 1974, there were 53 state clearinghouses (including Samoa, Puerto Rico, and the District of Columbia), 212 metropolitan areawide clearinghouses, and over 280 non-metropolitan clearinghouses.²¹

The other four parts of the circular are of course also important, for it is they that define the function of A-95 clearinghouses. Part I establishes the Project Notification and Review System (PNRS), which allows state and areawide clearinghouse review of proposed applications for federal aid. Part II provides for similar state and regional review and comment upon direct federal projects. Part III allows Governors to comment upon the relationship between state plans required as a condition of [4 ELR 50046] federal formula grant programs and comprehensive state plans in general. Part IV seeks to ensure that designated planning regions for specific federal programs and state functions will have coterminous boundaries, so as to avoid overlaid patchworks of special planning regions.

Part I is the key element of the A-95 review process. Under the Project Notification and Review System (PNRS), any state or local government agency, or any organization or individual contemplating application for federal assistance in any of almost one hundred and fifty federal-aid programs must first notify both the state and areawide clearinghouses in the jurisdiction in which the project is to be located. Such notice of intent to apply must precede actual application by at least sixty days, the first thirty of which are designated for clearinghouse review and negotiation, the second thirty for preparation of clearinghouse comments upon the completed application in its final form. The requirement covers such wellknown programs as Comprehensive Health Planning Grants, Urban Renewal Projects. Law Enforcement Assistance Grants, Urban Transit Capital Improvement Grants and Loans, Air Pollution Control Program Grants, Water Pollution Control Grants, and Solid Waste Research Grants.²²

During this sixty day pre-application period the state and areawide clearinghouses have four major PNRS functions to perform:

a) evaluate the relationship between the proposed project and state, areawide, or local plans;

b) distribute project notifications to appropriate state and local agencies for review and comment;

c) assure that state, areawide, and local environmental agencies are given an opportunity to comment on all proposed projects;

d) assure that civil rights agencies are given an opportunity to comment on all proposals.²³

If in the performance of PNRS the clearinghouse perceives any problems with the proposed application, it may work with the applicant to resolve such difficulties. If the problems cannot be resolved during the first thirty days of the pre-application period (which may actually exceed thirty days if the applicant has not yet completed its application or is willing to delay submission of its proposal to the appropriate federal agency), then the clearinghouse may have an additional thirty days to review the completed application and prepare comments thereon. The clearinghouse must attach to its prepared comments any written comments submitted to the clearinghouse by other jurisdictions, agencies, or parties which are at variance with the clearinghouse comments. The clearinghouse forwards its comments and attachments to the applicant, who must include them with the application he sends to the proper federal agency. The federal agency reviewing the application must notify clearinghouses within seven days of any action taken on applications that have been reviewed (even if without comment) by such clearinghouses.

The Office of Management and Budget outlines a typical PNRS application review process as follows;²⁴

Step 1.

Potential applicant desiring Federal assistance makes inquiries of Federal agency.

Step 2.

Funding agency informs applicant that, among other things, it must notify both State and areawide clearinghouses about the project for which it intends to apply for assistance.

Step 3.

Applicant notifies clearinghouses.

Step 4.a.

State clearinghouse notifies State agencies which might have programs affected by proposed project, including where appropriate, environmental agencies and State agencies responsible for enforcing or furthering the objectives of civil rights laws.

Step 4.b.

Areawide clearinghouse notifies local government agencies whose interests might be affected by the proposed project including, where appropriate, local and regional environmental agencies and public agencies responsible for enforcing or furthering the objectives of civil rights laws.

Step 5.

State agencies or local governments inform clearinghouse of interest, if any.

Step 6.

Clearinghouse arranges conferences with applicant within 30 days of notification pursuant to its own or other State or local interest.

Step 7.

Conferences are held to:

a. Explore project in greater detail

b. Identify possible conflicts or mutuality of interest.

Step 8.

If continuing interest, applicant and clearinghouses (with any State or local interest), cooperate in developing application to:

a. Resolve conflicts

b. Strengthen project.

[4 ELR 50047]

Step 9.

If conflicts are not resolved, clearinghouse notifies applicant that it will have comments to accompany the application. (Note: Conflicts may arise as between clearinghouses or particular local governments as to the merit of a project, so such comments may be variously supportive or critical).

Step 10.

Applicant submits final application (or adequate project description) to clearinghouse(s) for comment, providing 30 days therefore.

Step 11.

Clearinghouse(s) submits any formal comments of its own or of particular State agencies or local governments to applicant.

Step 12.

Applicant submits application to funding agency, including comments, if any, or, if none, a statement that requirement has been followed.

Step 13.

Funding agency considers application and comments and informs clearinghouses of action taken thereon.

It is possible for the process to come to a satisfactory conclusion at the completion of Steps 5, 7, or 8, as well as of course, Step 13. At either of the earlier steps, clearinghouses can inform applicant of general satisfaction with the project and that they will have no (or supportive) comment. In such case, the applicant completes the application and submits it to the funding agency with a statement that the requirement has been followed (or with any supportive comment).

[See Illustration in Original]

The sixty day review and comment timetable does not apply to federal housing assistance programs under the Department of Housing and Urban Development, the Farmer's Home Administration, and the Veterans Administration. There, "[b]ecause of the unique nature of housing programs,"²⁵ a shortened thirty day review is conducted. In such federally-assisted housing projects of certain minimum sizes²⁶ the PNRS relationship is between the clearinghouse and the federal agency, not the clearinghouse and the applicant: the developer submits a preliminary application to the federal funding agency involved, which begins a feasibility analysis on the proposed project. The federal agency sends copies of the preliminary application to the clearinghouses, which have thirty days to submit their comments to the federal agency.²⁷ The federal feasibility analysis proceeds concurrently with the shortened A-95 review.

Nowhere during the A-95 review process does a [4 ELR 50048] clearinghouse exercise a veto power. Its role is always to coordinate and confer: "the reviews are processes of negotiation rather than adjudication. They are primarily directed at identifying differences between plans and programs and at resolving those differences wherever possible."²⁸ If such differences cannot be resolved, the application is submitted with negative comments. Although strongly negative comments may doom an application to rejection, federal agencies can, and on occasion do, overrule the objections of clearinghouses. Clearinghouse comments are advisory only.

The A-95 process is capable of bringing about modification of project proposals. In one survey, twenty-nine percent of the cities and forty-seven percent of the counties responding reported that they had made adjustments in applications for federal grants as a result of A-95 review.²⁹ In that same survey, thirty-nine percent of responding cities and sixty-four percent of responding counties reported that they had submitted comments on projects proposed by other governments. Other data suggest that although a significant proportion of individual city and county governments may have submitted comments through PNRS or have modified project proposals in response to A-95 negotiation, somewhat less than ten percent of all proposed projects receive negative clearinghouse comments, and only a like percentage are substantively altered in response to clearinghouse negotiation.³⁰

Interpreting such statistics is difficult at best. It is impossible to determine what percentage of proposed applications are modified in anticipation of inevitable clearinghouse objections; such accommodations to regional interests are a credit to A-95 review. It is equally impossible to discover whether the low negative comment frequency is due to the high quality of proposals submitted, a low quality of A-95 review, or the success of A-95 pre-application negotiations. Nevertheless, the figures do illuminate the fact that "A-95 cannot assure coordination, but it is designed to create a climate for intergovernmental cooperation in which such coordination is more likely to come about."³¹

The flexible nature of the A-95 process extends beyond its concept of providing opportunity for coordination rather than forcing negotiation. The whole of Circular A-95 is entirely optional: it does not absolutely mandate the designation of clearinghouses, their organization, their review procedures and techniques, or whether or not clearinghouses actually review submitted proposals at all. The carrot of federal monies provides strong incentive for a Governor to designate clearinghouses, but once that is done, the clearinghouses need function only minimally. A-95 does not ensure effective application review; it merely allows it.

Although A-95 review is on paper only an optional means of coordination and negotiation between local, regional, and state agencies, it should already be obvious that such a simplistic view does not comport with the dynamics of intergovernmental relations. "One way of stating the point is to say that [A-95 reviews] do not occur in a vacuum. The review processes are affected by several factors which are not directly related to judgments about the way a given application for federal funds fits with plans or other projects around the state."³² Negative comments from a clearinghouse or local agency may be based, explicitly or otherwise, on actions or attitudes of the applicant which are not closely connected with the merits of the project at hand. For example, one metropolitan areawide clearinghouse sees A-95 reviews as a powerful policy implementation tool that can effectively further fair housing policies.³³ This article will develop the thesis that areawide clearinghouses can also be important tools for influencing and altering environmental policies and impacts.

The Areawide Clearinghouse

The areawide clearinghouse has three aspects which make it, rather than the state clearinghouse, the more vital link in the A-95 process and the more fertile ground for critical analysis. First, the areawide agency is a synthetic governmental overlay, gaining legitimacy from its member jurisdictions in a strange political symbiosis: the local governments yield their option to act in an insular manner without recognition of or accommodation to regional concerns, and in return receive planning, coordination, and the assurance that neighboring governments must similarly account for their actions. Because OMB and state Governors have the power and inclination [4 ELR 50049] to coerce local governments into the dominion of an areawide clearinghouse, the A-95 process may become a limited government by grudging consent. State clearinghouses, by contrast, are typically official state planning agencies that existed before Circular A-95 and intend to continue their existence with or without justification from federal assistance programs.

The second reason why much of the attention of this article will focus on the areawide clearinghouse is that these agencies serve to link scattered local governments to the higher systems of federal administration. Areawide clearinghouses not only coordinate local governments with each other, but they also provide local input into a national system, a means of gathering and funnelling comments and positions that have historically gone unheeded at the national level.

Thirdly, and most importantly for the local practitioner, the areawide clearinghouse, because it is more closely connected to local governments, is more susceptible to the unique types of pressure that may be exerted at a local level. The dynamics of these local-regional connections merit further discussion, but at this point it is adequate to state that local governments provide the best point of access to the A-95 system, which in turn provides leverage on higher level decisions.

The typical areawide clearinghouse was born of the Demonstration Cities and Metropolitan Development Act of 1966. That act specified that areawide agencies should, to the greatest extent possible, be "composed of or responsible to the elected officials of a unit of areawide government or of the units of general local government within whose jurisdiction such agenc[ies are] authorized to engage in such planning."³⁴ The likelihood of elected officials dominating clearinghouse policy decisions is heightened by the fact that many areawide clearinghouses are "Councils of Government" (COGs).³⁵ COGs are influenced not only by the Demonstration Cities Act, but also by 701 planning grants. "HUD resources in the 701 planning program have become the institutional support for COGs, and HUD guidelines insist on the representation of a significant percentage of metropolitan area governments on COG policy boards."³⁶ OMB states that although it encourages the control of clearinghouse policy by elected officials, it does not require such, in deference to state law and the need for local flexibility.³⁷

Whether or not a clearinghouse is a COG, it is typically multifunctional; most clearinghouses perform duties in areas outside of the A-95 process. Though OMB declares that "[f]unctional expertise is not as critical to clearinghouses as is the generalist capability of comprehensive planning to identify linkages among functions and programs,"³⁸ there seems little doubt that a generalist agency is better equipped to perform A-95 review if it has additional special skills. An areawide agency with staff expertise in the fields of planning, engineering, housing, civil rights and environmental sciences is more likely to recognize potential regional impacts than is a purely generalist regional planning board. Ninety-six percent of areawide clearinghouses responding to one survey reported a multifunctional role, and over half reported that they performed from three to five distinct additional functions, such as Law Enforcement Planning, Transportation Planning, Air Quality Control, and Comprehensive Health Planning.³⁹ In an evaluation of eleven different aspects of A-95 review, the more multifunctional a clearinghouse, the more favorably it tended to view the process.⁴⁰ The evidence indicates that a multifunctional agency is better equipped to perform A-95 review, and can derive more benefits from the process than can a less versatile agency.

NEPA and Local Comments

The National Environmental Policy Act of 1969 (NEPA) is a landmark law of the environment.⁴¹ Section [4 ELR 50050] 102 (2) (C) of NEPA⁴² contains the well-known "action-forcing" provisions which require the preparation of a detailed environmental impact statement on every major federal action which significantly affects the quality of the human environment. An environmental impact statement must assess:

(i) the environmental impact of the proposed action,

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

(iii) alternatives to the proposed action,

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

(v) any irreversible or irretrievable commitments of resources which would be involved in the proposed action should it be implemented.⁴³

Many of the federal or federally-assisted programs subject to A-95 review constitute major federal actions on which impact statements are required.

NEPA mandates that "[c]opies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality, and to the public … and shall accompany the proposal through the existing agency review processes …."⁴⁴ Nowhere does the Act specify procedures by which federal, state, and local agencies and the public are to be given opportunity to comment on impact statements. However, final guidelines issued by the Council on Environmental Quality (CEQ)⁴⁵ detail a procedure under which an agency proposing an action prepares a "draft" impact statement, which should be as complete as possible. That draft statement is then to be circulated to federal, state, and local agencies with environmental expertise, and to the public for review and comment. The proposing agency then prepares a "final" impact statement acknowledging or incorporating comments received during circulation of the draft impact statement.

The courts have ruled that the commenting procedure is central to impact statement preparation and may not be disregarded by proposing agencies or waived by the CEQ. In Natural Resources Defense Council, Inc. v. Morton⁴⁶ the court dealt with an inadequate final impact statement which the Department of the Interior had attempted to supplement with an addendum. The district court rejected the addendum, saying:

If this addendum is to be considered a part of the Final Impact Statement, then it must be subjected to the same comment and review procedures outlined by [§ 102 (2) (C) of NEPA, as was required for the original Final Impact Statement which did not contain the addendum when it was first circulated.⁴⁷

The court indicated that the potential worth of the commenting process was not relevant, stating that:

Whether or not the comments will be valuable in the end is not the question before this court. The court must only determine whether the opportunity for comment as required by Section [102 (2) (C)] was afforded.⁴⁸

A number of other cases have held the review and comment procedure to be central to the NEPA process, requiring adequate notice to the public and other agencies so as to allow meaningful review, and indicating that a sponsoring agency must be prepared in court to prove that the commenting process was adequately carried out.⁴⁹

A sponsoring agency must not only circulate a draft impact statement for review and comment, it must meaningfully employ such comments in preparation of the final impact statement. At least two cases have held agencies to a duty of discussion of outside opinion in the final impact statement.⁵⁰ A third has held that:

The proper response to comments which are both relevant and reasonable is to either conduct the research necessary to provide satisfactory answers, or to refer to those places in the impact statement which provide them. If the final impact statement fails substantially to do so, it will not meet the statutory requirements.⁵¹

The legislative history of NEPA suggests that the motivation for requiring review and comment of impact statements was a perceived need for coordination of environmental [4 ELR 50051] policies. "The present problem is not simply the lack of a policy. It also involves the need to rationalize and coordinate existing policies."⁵² Clearinghouses have been designated by the federal government as the primary means of securing state and local agency review of draft impact statements and coordinating environmental policy.

Clearinghouse Environmental Assessment

Section 1500.9 of the final CEQ guidelines,⁵³ which delineates the procedures for review of draft impact statements, states quite simply that

Office of Management and Budget Circular No. A-95 (Revised) through its system of State and areawide clearinghouses provides a means for securing the views of State and local environmental agencies, which can assist in the preparation and review of environmental impact statements.

The guidelines do not provide additional or alternate means of securing local review, nor do they explicitly contemplate any direct federal-local contact whatsoever in draft impact statement review.

The guidelines do, however, refer to an attached appendix, which details the relationship between A-95 and NEPA.⁵⁴ Comments submitted by clearinghouses with a project application "represent inputs to the environmental impact statement," and must be attached to the draft statement when it is circulated for comment.Affected clearinghouses are to receive copies of draft impact statements, as are all other agencies which submit comments through a clearinghouse. Whether those agencies then choose to re-comment upon the potential impacts of the proposed project is left to their own discretion.

The clearinghouses may also be used, by mutual agreement, for securing reviews of the draft environmental impact statement. However, the Federal agency may wish to deal directly with appropriate State or local agencies in the review of impact statements because the clearinghouses may be unwilling or unable to handle this phase of the process.⁵⁵

There is no stated requirement that a federal agency must directly seek the view of other local agencies if a clearinghouse declines to act as intermediary.

The state and local impact statement review procedures formulated by OMB and CEQ place most of the burden of informing local agencies of the availability of draft impact statements on clearinghouses, rather than federal agencies, and it may be tempting to view this as federal buck-passing, especially in light of OMB's history of general antipathy towards NEPA.⁵⁶ But A-95 clearinghouses may provide the only channels through which local agencies can learn of proposed projects and comment on either their applications or draft impact statements. If a local agency does not comment (or is not given opportunity to comment) on a proposed application during the PNRS, its only source for a subsequent draft impact statement on the same project will almost certainly be the areawide clearinghouse. If an areawide clearinghouse does a poor job of notifying local agencies of the issuance of a draft statement, inadequate or nonexistent local review will result.

In addition to providing this less-than-perfect mechanism for review of draft impact statements, A-95 provides for additional environmental review during the earlier PNRS stage. Circular A-95 devotes six subparagraphs to considerations which clearinghouses are encouraged to discuss in their comments and recommendations developed through PNRS. In harmony with the generally flexible nature of A-95, clearinghouses need not limit themselves to the suggested topics of comment, nor need they cover all the recommended ground. Subparagraph 5(c) of part I, in language taken from the Intergovernmental Cooperation Act, suggests the following subjects for comment which, although not derived from a primarily environmental law, speak broadly to environmental concerns, especially those problems associated with the urban experience:

(1) Appropriate land uses for housing, commercial, industrial, governmental, institutional, and other purposes;

(2) Wise development and conservation of natural resources, including land, water, mineral, wildlife, and others;

[4 ELR 50052]

(3) Balanced transportation systems, including highway, air, water, pedestrian, mass transit, and other modes for the movement of people and goods;

(4) Adequate outdoor recreation and open space;

(5) Protection of areas of unique natural beauty, historical and scientific interest;

(6) Properly planned community facilities, including utilities for the supply of power, water, and communications, for the safe disposal of wates, and for other purposes; and

(7) Concern for high standards of design.

Subparagraph 5(d) faces the environmental responsibilities inherent in federal action even more squarely; it sets forth verbatim the five factors which NEPA requires an impact statement to cover, and recommends that clearinghouse comments address themselves to those considerations.

An areawide clearinghouse which routinely weighed each of these areas of concern would be taking a long stride toward regional environmental responsibility. Since the categories set forth by the circular are only suggestions, it is unlikely that a clearinghouse would (or could afford to) examine each factor closely. However, encouraging an awareness of the problems involved is at least a beginning; not even the relatively stringent provisions of NEPA require that federal agencies heed environmental warning signals, but only that they consider them.

The true importance of this aspect of PNRS under Circular A-95 is its timing; clearinghouses will be examining the environmental merits of proposed actions at least thirty to sixty days before a federal agency ever sees the application, and will have an opportunity for critical input regarding the approval or disapproval of the final application from the moment of its submission. This is state and local review and comment on environmental impacts above, beyond, and before that contemplated by NEPA. Early examination of potential impacts allows consideration of alternative actions while those alternatives still remain open, and increases the likelihood of abandonment or alteration of an environmentally damaging project at a stage when little time, money, or energy has been committed to the proposed action.

Some clearinghouses take their environmental duties quite seriously, recognizing that it "is the responsibility of the [areawide] clearinghouse to assure these [local] governmental bodies of the opportunity to make such comments as they consider appropriate"⁵⁷ on draft impact statements. The sense of responsibility of other clearinghouses is less than heartening:

After receiving notifications or [sic] intent to apply, 90 percent of the clearinghouses distributed them to affected jurisdictions and agencies, but only 56 percent referred notices to State and local environmental agencies and 42 percent to nongovernmental organizations. Seven percent made their own assessment of the environmental impact of a project ….⁵⁸

Actual experience with the role of A-95 in draft impact statement review and with environmental assessment under PNRS has been mixed, but generally favorable. There is a strong indication that the "bare existence of the reviews [does] work to encourage a more thorough and earlier examination of projects in an effort to anticipate possible problems."⁵⁹ Even the shortened A-95 review of housing programs has fostered additional environmental assessment:

When housing programs were first put under A-95, it was expected that the main interest of the clearinghouses would be in their utility in indicating the scale and direction of urban growth. As it developed, areawide clearinghouses were not content to simply receive and digest information about probable housing starts. Housing reviews have tended to focus on the impact of proposed projects, individually and collectively, on the supply of facilities and services in place or needed to serve the new inhabitants of these developments…. Moreover, fundamental environmental questions were considered: adequacy of soils to support proposed development and tree cutting, grading, and runoff problems.⁶⁰

These encouraging signs of environmental initiative on the part of areawide clearinghouses illustrate another potential of the A-95 process. By acquainting multifunctional areawide agencies with environmental assessment techniques and encouraging their use, A-95 facilitates areawide environmental review on non-federal as well as federal projects. A clearinghouse that offers unexpected environmental input on federal housing projects is just as likely to similarly scrutinize all federal and non-federal proposals which pass through its doors:

The Willamette Water Company, a private supplier using wells, proposed to extend its service to a residential area and proposed industrial park in an unincorporated area outside the Lane County 1990 urban services boundary. The Company's wells contained enough capacity to begin development but not to complete it, with the result that it sought to purchase water from Eugene Water and Electric Board. Though the proposal did not fall within A-95 review jurisdiction, the experience of the reviews and the existence of the urban services boundary led to COG involvement. Ultimately, the fact that [4 ELR 50053] the Oregon Public Utilities Commission would have forced the Company to serve new customers on an inadequate system if water was not supplied by the Board led to the sale of water to the Company. However, the sale included conditions which limit the Company's actions within the service area and permit the Board to purchase the Company at any time. Urban growth in the unincorporated area served by the Company will be controlled by the conditions.⁶¹ (Emphasis added)

In another instance, A-95 review of a proposed federally-assisted $1.1 million harbor development revealed a need for a sewage treatment plant to prevent harbor contamination. The areawide clearinghouse not only was instrumental in determining the need for the facility, but also coordinated this need with other developments in the area, secured a federal planning grant, and enabled regionalization and upgrading of an existing treatment plant rather than construction of a new facility.The efforts of the clearinghouse prevented possible water contamination, and saved an estimated $65,000 in construction costs.⁶²

The coordinative role of PNRS is often mentioned as a strong point of A-95. PNRS has prevented such classic interagency errors as paving a street immediately before laying new water mains through the same path,⁶³ as well as heightening coordination on the more sophisticated levels of the Oregon harbor example. Some areawide clearinghouses, especially those in highly urbanized areas, have developed detailed procedures and checklists for ensuring comprehensive, coordinated draft environmental impact statement review by local agencies.⁶⁴

In sum, taking into account the inadequacies of the procedures OMB has chosen for A-95 review, PNRS still seems to perform four distinct environmental assessment functions:

1) It enables state, areawide and local agencies to comment upon probable environmental impacts prior to completion of a draft impact statement, at the most preliminary stages of a project;

2) It enables state, areawide and local agencies to review and comment upon draft environmental impact statements in compliance with NEPA;

3) It encourages coordination in environmental policy making and review, one of the objectives of NEPA;

4) It enables and encourages state, areawide and local agencies to perform independent environmental evaluation of non-federal as well as federally-assisted projects.

All four of the above are "official" functions — they are aspects of PNRS over which the public sector objector to a project has little control. If an areawide clearinghouse is not encouraging coordination of environmental policy making, or is not commenting upon probable environmental impacts revealed during PNRS, there is little that a citizen or group of citizens can do to make the system perform more efficiently within the parameters outlined above. But if a private sector objector to a proposed application understands the dynamics of clearinghouse functions, and knows what the established roles of citizens and local governments are in A-95, then he can learn to exert surprising influence in the review of proposed federal-aid applications.

Citizen Participation in PNRS

PNRS is not a formal hearing procedure. It is a coordinative process, stressing inputs from local agencies. Nowhere does circular A-95 provide for citizen participation in review of proposed applications; OMB states that

[b]ecause A-95 is based specifically on legislation aimed at intergovernmental cooperation, it does not make [citizen] involvement obligatory…. However, to the extent that such groups can be identified, their involvement in A-95 reviews can be beneficial. Therefore OMB encourages clearinghouses to seek appropriate private citizens' and community organization inputs to their reviews.⁶⁵

Despite OMB's stated good intentions, little has actually been done to ensure a citizen voice. Clearinghouses generally take a constricted view as to who, other than local governments, should be permitted to participate in the A-95 process. "After all, the more the system is opened, the more likely it is to produce negative comment; a result which may not be desired by any of the current parties to the A-95 process."⁶⁶

[4 ELR 50054]

Areawide clearinghouses are as likely as any agency to fear that public scrutiny of their work will complicate matters; in all probability it would, but courts have consistently rejected objections to public participation on such grounds, insisting that the advantages far outweigh any possible burdens.⁶⁷ One observer has remarked that:

Public intervention can provide agencies with another dimension useful in assuring responsive and responsible decisions; it can serve as a safety valve allowing interested persons and groups to express their views before policies are announced and implemented; it can ease the enforcement of administrative programs relying upon public cooperation; and it can satisfy judicial demands that agencies observe the highest procedural standards. If agency hearings were to become readily available to public participation, confidence in the fairness of administrative hearings might be measurably enhanced.⁶⁸

Contentions as to the value of public participation in formal administrative hearings are just as applicable to a less formal administrative process like PNRS, which still can greatly influence governmental resource allocation. The informal nature of A-95 review would make citizen input even less disruptive than in formal agency procedures. A clearinghouse could easily take the initiative to notify local and regional public interest groups of opportunity to submit written comment,⁶⁹ those submitted comments which did not agree with the formulated clearinghouse position could be attached to the written clearinghouse comments.

A few clearinghouses recognize that citizen participation creates little difficulty and provides valuable input.The areawide clearinghouse for Washington, D.C., has gone so far as to establish citizen advisory committees within the clearinghouse.⁷⁰ In establishing such committees or formulating any other plan for public participation, clearinghouses should recognize that no single group can represent the public interest, but only an interest important to the public.⁷¹ Clearinghouses which wish to maximize the value of public participation in PNRS should offer input opportunities to a broad range of interest groups, and certainly to individual citizens.

The real fulcrum of public participation in administrative review was identified by the late Edmond Cahn, who said

Some consumers need bread; others need Shakespeare; others need their rightful place in the national society — what they all need is processors of law who consider the people's needs more significant than administrative convenience.⁷²

Local Government Participation

If the lack of opportunity for citizen participation is disturbing, the failure of local governments to take advantage of their opportunities is even more so. In a poll of all United States cities and counties with over 25,000 population, a full thirty-nine percent of the cities and thirty-eight percent of the counties were not even acquainted with the general requirements of PNRS.⁷³ Forty-five percent of those cities between 25,000 and 100,000 population lacked such basic familiarity.⁷⁴

The lack of local government knowledge of A-95 seems to contradict the established presence of local officials on clearinghouse boards, but several possible explanations arise. First, not all municipalities contained in an area, particularly a large semi-rural area, may be individually represented on the clearinghouse. Such municipalities may know that the regional COG exists, but be unaware of its A-95 function. Or, a municipality may be represented by an individual who communicates little of the nature of his participation back to his local government. Though the representative may know that A-95 exists, the municipality he represents may be completely in the dark. There is the final possibility that a municipality may be in one of the few areas that has no clearinghouse, or that has one only in name.

Whatever the explanation, there is an obvious inability [4 ELR 50055] of the A-95 process to make itself known at the local level. Whether such a lack of communication is deliberate or not is open to interpretation. The executive director of one clearinghouse does not perceive a duty to involve local governments: "I don't see why we're supposed to send these out to the local people. We usually try to keep our reviews clear of them, and that's the way they want it."⁷⁵ This kind of attitude implies a "lightning-rod" role for clearinghouses — that areawide agencies are to make the controversial, politically difficult decisions that local officials cannot make without alienating their electorate.

Adding to the lack of emphasis upon local government participation in A-95 is state government development of regional planning and development districts. Because of their new regional perspective, the "states tend to regard areawide councils as sources of 'local' views, and thus are not likely to encourage independent local government participation in PNRS."⁷⁶ State and federal reliance on clearinghouses for "local" input, combined with areawide clearinghouse self-perceptions as a layer between state and federal decisions. It is ironic that a system designed to assure local input into actions of regional impact could be twisted to quiet the local voice.

The problem might not be so severe if local governments insisted upon influence in the A-95 process, but there are signs that even those local governments that are aware of A-95 do not always seek to use PNRS in their best interests. Some local governments are reluctant to participate in a policy making body where their voting power may not be closely related to their share of the region's population.⁷⁷ Other local governments may resent the intrusion of a regional presence into what they view as local resource allocation decisions:

"I can see us going in there with some urban development proposal, and a few people from rural areas will spend a couple of hours telling us how we should run things in the big city. They don't know anything about our problems. I just don't need that!" Other officials are concerned about political interference with local policies. "We wouldn't object to a substantive, technically-competent review. But we aren't getting technical reviews, we're getting political reviews. They just don't have competence."⁷⁸

Lack of such technical competence would seem best countered by vigorous local participation in PNRS, with emphasis upon coordination of local and regional comprehensive plans. Unfortunately, more than one-third of local city or county planning agencies have no role in A-95 coordination, and fully one-quarter of those local planning agencies do not review or comment upon proposals.⁷⁹

In short, local, state, and regional misconceptions of the role of A-95 areawide clearinghouses can act to eliminate the participation of local governments in PNRS. This is an unfortunate perversion of A-95 intentions that hopefully should prove remediable.

Public Interest Use of A-95

The lack of public input to the A-95 process and the failure of local governments to participate in PNRS obviously hinders the formal environmental assessment functions of clearinghouses, but may create an opportunity for citizens to affect the fact of a specific proposed project. Circular A-95 obviously contemplates and allows for these types of participation; it is almost certain that no clearinghouse is in so secure a position as to expressly deny them. If vigorous citizen and local government review and comment should arise, it would be rendered all the more remarkable and the more effective by its previous conspicuous absence. The very fact that local public and private inputs are not often utilized makes those components of the A-95 process powerful new means of influence at the hands of organized, informed citizens' groups, if those groups possess the requisite degree of knowledge and sophistication to recognize and employ the types of leverage that are peculiar to their situation. The same law firm which brought a halt to the Glens Falls swimming pool has used the leverage provided by A-95 to stop or delay other objectionable projects as well. Their experience indicates that success boils down to four key words: initiative, timing, information, and access. A citizens' group must take the initiative to intervene in the process, although established procedures may not envision its presence; the timing of intervention must be early, and it must be precise; intervention must be used to provide information that will alert and persuade local governmental agencies that might otherwise decline an opportunity to comment; above all, intervention should be viewed as a means of access to an entire decision-making structure, not just to an A-95 clearinghouse.

An important background factor to remember is that the citizens' group is working on a local and state level, where power relationships are quite different than they would be once a federal agency approved project funding. [4 ELR 50056] While the dimensions of a proposal are so confined, there are some unique avenues of influence to be followed. Although a local chief executive may be prevented from opposing a project by the determined project support of a wealthy community leader, a citizen group's "in" with one informed school board member may sway the entire board to take a stand in opposition to official city policy. By working through A-95, a citizens' group is working at a level where small voices are likely to be heard in federally-funded projects. Public opposition that may doom a proposed action in its pre-application stages might evoke no more than cursory official response by the time that an impact statement is prepared and reviewed.

The initiative that a citizens' group must take is deceptively simple: it must discover when proposed applications are submitted, and send comments to affected agencies, whether or not such comments are solicited. The difficulty arises in finding out about the official submission of a city's notification of intent to apply for federal aid. Since most clearinghouses make no effort to give public notice of pending reviews, both diligence and vigiliance are required on the part of the citizens' group; it must be alert for possible federal funding proposals, and obtain copies of them as soon as possible. Since in all likelihood the group organized in response to a specific proposal, diligence may be the more important quality, quite likely taking the form of weekly or daily calls to a clearinghouse to determine whether a notification of intent to apply has been filed. This need for vigilance could be significantly reduced if the clearinghouse could be persuaded to publish public notices of project notifications, or to provide some type of PNRS register that would list all notifications as they are filed.

Before notification is filed, the group must take the initiative to obtain the names of every organization from which a clearinghouse routinely solicits comments; after notification is submitted, the group must initiate formal contact with the clearinghouse and all commenting agencies. The absolute minimum formal contact is submission of written comments prepared by the citizens' group. If a clearinghouse does not notify agencies that the group considers to be sources of key local input, the group must do so on its own, and urge such agencies to submit comments to the clearinghouse. If the group has any doubt about the willingness of the clearinghouse to forward their comments to the federal funding agency, copies should be sent to that agency directly.

Timing is critical. Although A-95 review may take place quite early in the federal schema (certainly earlier than any NEPA inputs), it is nevertheless quite late on a local scale. The proposing local agency has decided what it wants and how it wants to get it, and the applicant may have already garnered the support of most or all agencies of the city in which the project is to be funded. Unless objections are brought to the surface, A-95 review may well be concluded in thirty days, and the shortened housing reviews will almost always be completed in thirty days, whether or not objections arise. Apathetic reviewing agencies may stamp a notification "no comment" and return it to the clearinghouse within just a few days. Clearly, the brevity of the review period places a great value on advance preparation by public interest representatives; a citizen group that seeks input must notify all potential commenting agencies of what it considers to be the troublesome aspects of the project, and must do so quickly, before openings disappear.

It should come as a surprise to no one to discover that many cities gain informal pre-application approval of proposed projects from federal agencies; if such is the case, funding may be inevitable once the application reaches federal hands. This is another reason why citizens' groups must act quickly to exert maximum pressure during A-95 review, and why delay of protest until preparation of an impact statement may be unwise and ineffective.

The informative role of the citizen effort must be carried out on a relatively sophisticated level, for this is one key point at which the inadequacies of the system may be used to advantage. A local agency that has never before heard of A-95, but which is alerted by a citizens' group to the process and to reasons why a proposed project affects its specific interests is likely to give considerable weight to the opinions of those who are familiar with PNRS and the project. This new information might be a strong incentive to offer comments. An agency which knows of A-95 but lacks the interest or energy to study and comment on a proposed project may well find it attractively simple to adopt the citizen group's views as its own. An agency that actively participates in PNRS may listen to the group's arguments and find them persuasive, or at least may attach copies of the citizens' views to their comments.

Of course the citizens' group should submit its comments directly to the involved clearinghouses, where the very novelty of hearing from interested persons may increase their impact. Nevertheless, it is probably even more effective to have one's thoughts adopted and echoed by other accepted members of the A-95 review procedure. In order to take best advantage of commenting agencies, the group should prepare a different set of comments for each agency. Not only does this increase the pertinence of the comments to each agency, but prevents the possible embarrassment of a clearinghouse revealing that ten agencies have attached ten identical sets of comments from the same source. A coalition of several standing citizens' organizations is particularly well-suited to such a task, producing varied comments from each organization, anticipating decisionmakers that may be understandably chary of views which seem to be the result of high-pressure, homogenized promotion work.

Of course, comments should be detailed and supported to the maximum extent by specific data, so that agencies can have confidence in their content and can have pegs upon which to hang their own hats. Since the entire strategy is to work within the A-95 process for environmental [4 ELR 50057] influence, it may be very helpful for citizen comments to stress the specific language of environmental responsibility found in Circular A-95, making areawide decisionmakers feel a duty to consider potential impacts.

Although such a barrage of information upon public agencies may lead to PNRS negotiations and possible modification or abandonment of the proposed project, it has another separate value — it opens access to public agencies and individuals who may be in positions of tremendous substantive or procedural power. This is the point at which the peculiar dynamics of local politics come into play. By asking clearinghouses for the names of their commenting agencies, and asking agencies for the names of staff who handle A-95 reviews, a citizen can get inside the structure and determine where, if anywhere, the pivotal power positions are. Personal contacts with individual staff members can greatly influence ultimate agency stances. Cordiality with the one person across whose desk flow all notifications of intent to apply may significantly enhance coordination in future work with A-95 reviews. Convincing the manager of public works of one's position may effectively halt a proposed project without clearinghouse comments. Again, maximum advantage should be taken of the individual talents of member organizations of a coalition, recognizing that one person or group may be particularly well-suited to make contact with a certain agency or individual. Representatives of citizens' groups must recognize the need to follow up written comments and take advantage of the access that A-95 provides to local, regional, and state governmental structures.

A person who seeks to use A-95 to advantage must be sophisticated enough to realize that it is very easy to win the battle and lose the war. That is, A-95 is itself only an advisory system; persuading every single affected local official to submit negative comments will not guarantee a negative clearinghouse comment, and even a negative clearinghouse policy position does not asure federal rejection of an application. There is more than a little reason to believe that most benefits to be gained from A-95 will arise before the application reaches federal hands:

There seems to be very little active commitment to the concept of PNRS on the part of the various [federal] program administrators. Interviews conducted with officials of five Federal departments and executive offices (all of which are involved to some extent in health, education, criminal justice, or manpower programs) suggested attitudes towards PNRS ranging from indifference to hostility.⁸⁰

Even at the clearinghouse level, maximum benefits may accrue from negotiation and compromise rather than from final clearinghouse action.⁸¹ Because areawide clearinghouses are frequently composed of elected officials, there may be enough backscratching and log-rolling on policy boards to prevent firm clearinghouse stances in opposition to proposed applications.

The private sector objector must recognize what A-95 is and what it is not. It is an opportunity to gain unexpected access to decision making structures and to exert influence through those structures at an early point, when the dynamics of the situation are more open to change. It is not a judicial procedure that will invariably grant total victory to the side on which rests justice. Success through A-95 depends heavily on locating the persons who hold practical power and pressuring or persuading them to use their influence toward a desired end.

Conclusion

The United States Office of Management and Budget first issued Circular A-95 on July 24, 1969. In its latest revision, dated November 13, 1973, the circular cites three statutory enactments as its foundation: section 204 of the Demonstration Cities and Model Development Act of 1966, Title IV of the Intergovernmental Cooperation Act of 1968, and the National Environmental Policy Act of 1969. Circular A-95 has fostered the establishment of fifty-three "state clearinghouses" and over four hundred and eighty "areawide clearinghouses" which allow local, regional, and state governmental agencies to review and comment upon proposed applications for federal assistance under more than one hundred and fifty federal grant and loan programs.

The clearinghouse network is complex, and it is impossible to make any accurate generalizations about it, but several facts do emerge upon examination: areawide and state clearinghouses are encouraged by OMB to consider the environmental impacts of proposed federal-aid applications, and are a designated means of securing local and state review of draft environmental impact statements. By encouraging these state and areawide clearinghouses to develop environmental assessment capabilities, the A-95 process facilitates examination and consideration of non-federal impacts, and provides coordination of environmental policy making. A clearinghouse cannot veto a proposed application, but it can attach to it any negative comments generated during review of the application by affected agencies. Although negative comments may doom an application to rejection by the federal funding agency, the real importance of clearinghouses lies in their ability to encourage early negotiation and modification of proposals to avoid negative comments.

Environmental assessment functions and all other clearinghouse activities under the"Project Notification [4 ELR 50058] and Review System" are to be performed at a very early time, prior to approval of applications by federal funding agencies, and long before preparation of environmental impact statements. Unfortunately, these "formal" environmental functions of clearinghouses are still largely potential; clearinghouses have not emerged as high-efficiency environmental review agencies, although they possess the fundamental tools to become such. Vigorous citizen and local government participation would help clearinghouses achieve their potential, as would better federal support, preparation and use of comprehensive plans, and a variety of other changes in structure and function.

It does the private citizen or the individual attorney little good to lament the present inefficiencies of Circular A-95 and its progeny. The value of PNRS to these persons lies in its informal role as a means of governmental access and influence. Experience has proven that this obscure OMB circular can be utilized to gain very early environmental inputs to a decision making system that is peculiarly susceptible to the types of pressure that a private sector objector is capable of bringing to bear. By using A-95 as a tool of influence and negotiation, and by tailoring actions to the nature of the system, a citizens' group may find itself capable of forcing abandonment or modification of projects which would become unassailable by the later draft impact statement stage.

The attorney who would use A-95 clearinghouses as a means of influencing the disposition of proposed federalaid projects must display a great deal of initiative, must time actions precisely, must pursue an informative role, and most importantly, must regard A-95 as a means of access to governmental mechanisms other than the A-95 process itself. The potential of A-95 as a means of private sector environmental influence is sadly underutilized, but this underutilization is due to lack of knowledge, not to any inadequacies inherent in the system.

The environmental lawyer who does not understand and use the A-95 process is not overlooking an environmental panacea, but is functioning without the benefit of a powerful tool that may be particularly well-suited to the needs of a public sector objector.

1. Kafin & Needleman, Glens Falls, New York.

2. Though Office of Management and Budget Circular No. A-95 was first released in 1969 (when it was designated Bureau of the Budget (BoB) Circular A-95), this article will deal exclusively with its most recent revision, issued on November 13, 1973, 38 Fed. Reg. 32874 (1973), ELR 47001, hereinafter "OMB Circular A-95."

3. The National Environmental Policy Act of 1969, 43 U.S.C. § 4321 et seq. (1970), requires the preparation of environmental impact statements on all major federal actions which significantly affect the quality of the human environment. Such environmental impact statements may be reviewed and commented upon by affected federal, state, and local agencies; see discussion, infra.

4. 43 U.S.C. § 4321 et seq. (1970); the objective of coordination in environmental policy making is derived from legislative history, as discussed, infra.

5. Housing Act of 1954, 40 U.S.C. § 461 (as amended 1970).

6. Advisory Commission on Intergovernmental Relations, Regional Decision Making: New Strategies for Substate Districts 57 (Oct. 1973).

7. Housing Act of 1959, Pub. L. 86-372, 40 U.S.C. § 461 (as amended 1973).

8. Id.

9. U.S. Housing and Home Finance Agcy., Planning Agcy.Letter No. 14 (Dec. 1959).

10. The Demonstration Cities and Metropolitan Development Act of 1966, Pub. L. 89-754; relevant provisions are codified as 42 U.S.C. §§ 3331-3339 (1970).

11. 42 U.S.C. § 3334 specifies the general categories of "Federal loans or grants to assist in carrying out open-space land projects or for the planning or construction of hospitals, airports, libraries, water supply and distribution facilities, sewerage facilities and waste treatment works, highways, transportation facilities, law enforcement facilities, and water development and land conservation projects …" The presence of a number of sub-categories within these general programs raises the total to thirty-nine.

12. 42 U.S.C. § 3334 (a) (1) (1970).

13. Intergovernmental Cooperation Act of 1968, Pub. L. 90-577; Title IV is codified as 42 U.S.C. § 4231-33 (1970).

14. 42 U.S.C. § 4231 (a) (1970).

15. Id. § 4233; the original Act designated the Bureau of the Budget, but Reorganization Plan No. 2 of 1970 and Executive Order No. 11541 of July 1, 1970 vest all functions of the Bureau of the Budget or the Director of the Bureau of the Budget in the Director of the Office of Management and Budget.

16. 42 U.S.C. § 4231 (a) (1970).

17. OMB Circular A-95 was first issued on July 24, 1969; a major revision was issued on February 9, 1971, and amendments were promulgated as a separate issuance on March 8, 1972. The version dealt with in this article is the most recent revision, issued on November 13, 1973. (ELR. 47001).No attempt will be made to distinguish between the provisions of the different revisions.

18. OMB Circular A-95, Part V, par 10b.

19. That section, codified as 42 U.S.C. § 3334 (a) (1) (1970), requires submission of applications for federally-assisted projects to an areawide or metropolitan planning agency; to perform this function, an A-95 clearinghouse must also be such a planning agency.

20. U.S. Office of Management and Budget, Circular A-95: What It Is, How It Works 7 (1973).

21. A current list of all state and areawide clearinghouses is available as U.S. Office of Management and Budget, "Directory of State and Areawide A-95 Clearinghouses" (July 30, 1974).

22. A complete list of programs covered by Circular A-95 is provided by Attachment D to the circular.

23. OMB Circular A-95, Part I, par. 3.

24. U.S. Office of Management and Budget, Circular A-95: What It Is, supra, n. 20, exhibit 1.

25. OMB Circular A-95, Part I, par. 8. OMB does not elaborate on what that unique nature might be, nor does it offer further justification for this shortened review process.

26. In urbanized areas, the minimum sizes are subdivisions of 25 or more lots, multifamily projects of 50 or more dwelling units, mobile home courts with 50 or more spaces, and college housing for 200 or more students. In non-urbanized areas, the minimums are approximately halved. OMB Circular A-95, Part I, par. 8c.

27. Under earlier revisions of the circular, housing reviews were to be conducted in fifteen days, with another four days allowed for mailing time. This nineteen-day review proved wholly inadequate, and the time period was expanded to thirty days. The thirty day period may be extended by the federal agency involved if it has not completed its own feasibility analysis.

28. D. West & D. Yaden, A-95 and HUD Nineteen-day Reviews in Oregon: Analysis and Recommendations 4 (Unpublished paper prepared for the U.S. Dept. of Commerce Nov. 1972, NTIS #PB-226 516).

29. Urban Data Service, B. Harman, Areawide Review of Federal Grant Applications: Implications for Urban Management, Tables 9, 10, at 11 (Feb. 1972).

30. In a 1972 questionnaire sponsored by OMB, the National Association of Regional Councils, and the Advisory Commission on Intergovernmental Relations, 87 of 118 clearinghouses stated that in fewer than one-tenth of the projects, the comments resulted in the applicant making substantive changes in the application as originally conceived. 95 of 113 clearinghouses replied that critical or negative comments were submitted to accompany the application in less than one out of ten cases. Advisory Commission on Intergovernmental Relations, Regional Decision Making: New Strategies for Substate Districts 148 (Oct. 1973).

31. U.S. Office of Management and Budget, Circular No. A-95; What It Is, supra., n. 20, at 4, emphasis deleted.

32. A-95 and HUD Nineteen-day Reviews in Oregon, supra, n. 28, at 4.

33. See: Metropolitan Washington Council of Governments, Implementation of Balanced Housing Policies: the A-95 Housing Review Manual (April, 1973).

34. 42 U.S.C. § 3334 (a) (1) (1970).

35. Forty-nine percent of cities have COG clearinghouses, as do fifty-one percent of counties. The COG is especially dominant as a clearinghouse mechanism in the North Central and Western United States. See Areawide Review of Federal Grant Applications, supra, n. 29, at 5.

36. M. Mogulof, "Regional Planning, Clearance and Evaluation: A Look at the A-95 Process," 37 J. Am. Inst. Plan. 418 (Nov. 1971).

37. Circular No. A-95: What It Is, supra, n. 20, at 5.

38. Id.

39. Regional Decision Making, supra, n. 30, at 157.

40. Id., at 160. The clearinghouses were asked whether A-95 had resulted in the following accomplishments: identified conflicts; identified weaknesses; identified new opportunities; increased governmental coordination; made projects more effective; provided useful information; promoted orderly development; given feedback from other governments; caused changes in applications; or caused withdrawals of applications. On an average for all eleven potential accomplishments, 47% of nonmultifunctional clearinghouses identified A-95 as achieving any single accomplishment (from a low score on one factor of 11% to a high score on another factor of 89% favorable); clearinghouses that performed A-95 and four additional functions were 79% favorable on the average (low: 47%, high: 98%); clearinghouses that performed six additional functions also averaged 79% favorable regarding the accomplishments of A-95 in any one of the eleven specified areas (low: 38%, high: 100%).

41. 42 U.S.C. § 4321 et seq. (1970). Various aspects of NEPA have been the subject of exhaustive discussion; see F. Anderson, NEPA in the Courts (1973); Morgenthaler, "On the Road Again: Certification Acceptance Forces NEPA to Adapt," 4 ELR 50023; Huffman, "The Opportunities for Environmentalists in the Settlement of NEPA Suits," 4 ELR 50001; Arnold, "The Substantive Right to Environmental Quality Under the National Environmental Policy Act," 3 ELR 50028; Comment, "The National Environmental Policy Act: How It Is Working, How It Should Work," 4 ELR 10003. A complete list of NEPA research would seem interminable.

42. 42 U.S.C. § 4332 (2) (C) (1970).

43. Id.

44. Id.

45. 38 Fed. Reg. 20549 (1973), 40 C.F.R. § 1500 et seq., ELR 46003.

46. 337 F. Supp. 165, 2 ELR 20028, 337 F. Supp. 167, 2 ELR 20089 (D.D.C. 1971).

47. 337 F. Supp. at 172, 2 ELR at 20072.

48. Id.

49. See U.S. v. 247.37 Acres of Land, __ F. Supp. __, 1 ELR 20513 (S.D. Ohio 1971), __ F. Supp. __, 2 ELR 20154 (S.D. Ohio 1972); Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728, 1 ELR 20130 (E.D. Ark. 1970-71); Daly v. Volpe, 350 F. Supp. 252, 2 ELR 20443 (W.D. Wash. 1972); and a discussion of these cases as requiring impact statement circulation and comment in F. Anderson, NEPA in the Courts 224-228 (1973).

50. Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728, 1 ELR 20130 (E.D. Ark. 1970-71), at 759, 20141; Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 787, 1 ELR 20469, 20470 (D.C. Cir. 1971).

51. Lathan v. Volpe, 350 F. Supp. 262, 265, 2 ELR 20545, 20547 (W.D. Wash. 1972).

52. 115 Cong. Rec. S. 12127 (daily ed. Oct. 8, 1969) (from prepared statement by Senator Jackson).

53. 38 Fed. Reg. 20549 (1973), 40 C.F.R. § 1500 et seq., ELR 46003.

54. Appendix IV, "State and Local Agency Review of Impact Statements," 38 Fed. Reg. 20561 (1973), ELR 46015.

55. Id., par. 4.

56. Comptroller General of the United States, Report to the Subcomm. on Fisheries and Wildlife Conservation, of the House Comm. on Merchant Marine and Fisheries, Improvements Needed in Federal Efforts to Implement the National Environmental Policy Act of 1969 (May 18, 1972) summarized one of its findings as follows, at 4:

"Section 102 requires Federal agencies to include environmental impact statements in every recommendation or report on proposals for legislation significantly affecting the environment. GAO found that only a limited number of the statements had been so prepared and that OMB was not requiring the Federal agencies to furnish the statements as a prerequisite for its legislative clearance, except for water resources projects. OMB's legislative clearance process is a satisfactory mechanism for ensuring Federal agency compliance with this requirement of the act. Under current OMB procedures, however, agencies have little incentive to prepare the statements in order to receive OMB's legislative clearance."

A draft of the report (which evaluated a number of agencies besides OMB) was sent to the agencies for review and comment. Only OMB failed to respond; id. at 56.

57. North Central Texas Council of Government, Government Applications: Policies and Procedures for Review and Comment II-3 (June 1973).

58. Regional Decision Making, supra, n. 30, at 148.

59. A-95 and HUD Nineteen-day Reviews in Oregon, supra, n. 28, at 8.

60. Circular A-95: What It Is, supra, n. 20, at 16.

61. A-95 and HUD Nineteen-day Reviews in Oregon, supra, n. 28, at 20 (emphasis added).

62. Id., at 18.

63. Id., at 17. Multnomah County, Oregon was preparing to widen a two-lane arterial with Portland Model Cities funds, and did not realize that the City of Portland was preparing an application to run a sewer interceptor down the same arterial with EPA funds. The Columbia Region Association of Governments, in its role as an A-95 areawide clearinghouse, spotted this classic conflict and prevented additional costs of $20,000 to $30,000.

64. One excellent example is J. Sorensen and J. Pepper, Association of Bay Area Governments, Procedures for Regional Clearinghouse Review of Environmental Impact Statements, (1973). The objective of the study was to develop procedures that the Association of Bay Area Governments, whose offices are in Berkeley, California, could use to review environmental impact statements as specified by NEPA and the California Environmental Quality Act of 1970. Phase One of the report concluded that the primary needs of a clearinghouse were impact checklists for selected types of projects and an index of mapped or spatially recorded information needed to estimate the occurrence and degree or dimension of impacts identified by the project type checklists. Phase Two presents actual checklists, indices, and criteria for determining whether an impact is of regional significance.

65. Circular A-95: What It is, supra, n. 20, at 10.

66. Mogulof, "Regional Planning, Clearance, and Evaluation," supra, n. 36, at 420.

67. See Office of Communications of United Church of Christ v. Federal Communications Commission, 359 F.2d 994 (D.C. Cir. 1966).

68. E. Gellhorn, "Public Participation in Administrative Proceedings," 81 Yale L.J. 359, 361 (1972).

69. If other parties to the A-95 review are given opportunity for more than submission of written comment, then there would be grounds for insisting upon equal opportunity for the public sector. Office of Communications of Church of Christ v. FCC 359 F.2d 994 (D.C. Cir. 1966), a case involving television license renewals, held, inter alia, that merely allowing the listening public to file statements or appear as witnesses was insufficient. The public interest was held to demand the right of listeners to participate as parties and have a formal hearing. Of course, this case is distinguishable from A-95 review on several grounds, since clearinghouses are not subject to the Federal Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., nor do their proceedings typically involve first amendment rights. However, the principle remains, supported by judicial statements and numerous analyses. See Gellhorn, supra, n. 68; Cramton, "The Why, Where, and How of Broadened Public Participation in the Administrative Process," 60 Geo. L.J. 525 (1972).

70. See Implementation of Balanced Housing Policies, supra, n. 33, at 46.

71. See C. Ehren, Jr., Exec. Dir., Special Comm. on Electric Power and the Environment, The Association of the Bar of the City of New York, Electricity and the Environment: the Reform of Legal Institutions 136-140 (1972).

72. Cahn, "Law in the Consumer Perspective," 112 U. Pa. L. Rev. 1, 13 (1963).

73. Areawide Review of Federal Grant Applications, supra, n. 29, at 5.

74. Id.

75. U.S. Dept. of Housing and Urban Development, Local Government Participation in A-95, Community Development Evaluation Series No. 11, at 20 (March 1973).

76. Id., at 18.

77. Id., at 12. The lack of correlation between clearinghouse voting power and population can be a significant disincentive to local government participation. Many local governments feel that as proportionate representation decreases the likelihood of political blackmail increases; there seems no justification for allowing a minority of a region's population to dominate clearinghouse policy bodies, but the possibilities of urban dominance of regional policy bodies is equally troublesome.

78. Id., at 25.

79. Areawide Review of Federal Grant Applications, supra, n. 29, Tables 7 & 8, at 9, 10."Systematic evaluation of proposals using areawide plans probably occurs in relatively few clearinghouses. Many local governments complain that the lack of meaningful areawide plans makes A-95 reviews ad hoc staff exercises or random political decisions." Id., at 18.

80. Local Government Participation in A-95, supra, n. 75, at 17-18.

81. Environmental law is emerging as another field where negotiation frequently yields more satisfactory results than litigation, even when litigation seems a sound alternative. For a discussion of how negotiation in NEPA suits can result in impressive settlements, see Huffman, "The Opportunities for Environmentalists in the Settlement of NEPA. Suits," 4 ELR 50001 (1974).

4 ELR 50043 | Environmental Law Reporter | copyright © 1974 | All rights reserved