Environmental Decision-Making by Federal Agencies

Thomas B. Stoel, Jr., Attorney, Natural Resources Defense Council

Federal agency decision-making which affects the environment is influenced by a variety of factors. Among them are the statutes and executive orders which define an agency's mandate; the standards of review applied by the courts; the attitudes of agency personnel; the agency's relationships with groups in the private sector, the congressional committees with jurisdiction over its programs, other federal agencies such as the Office of Management and Budget, and the public; and the priorities and politics of the administration in power.

Because there recently have been significant changes in many of these variables, some background is necessary. Prior to 1970, federal agencies took environmental protection into account very little in carrying out their responsibilities. There were few federal statutes with environmental protection objectives, and they were usually weak and left much to agency discretion. Even agencies with traditional environmental quality concerns, such as the Forest Service, began to place their emphasis on resource development. Among the consequences were the massive coal-fired power plants in the Four Corners area of the Southwest, for which federal permits were granted without thought for orderly development or environmental protection; the Santa Barbara oil spill, which was caused by a failure of the Geological Survey to impose adequate environmental safeguards on the company drilling the well; and the desecration of the beautiful Bitterroot National Forest due to indiscriminate clearcutting.

The attitude of those days was exemplified when major oil companies in 1969 approached the Interior Department with a proposal for a 700-mile, all-underground oil pipeline across federal lands in Alaska. We know today that if approved, that design would have turned much of the pipeline route into a quagmire, and in all probability the pipeline would have broken. Yet the oil companies expected the Interior Department to rubber-stamp the proposal within 60 days.

Since 1970, environmental protection has become a factor in virtually all federal agency decision-making and the principal mission of some agencies. The National Environmental Policy Act of 1969¹ made environmental protection part of the mandate of every federal agency and established the Council on Environmental Quality. The Clean Air Amendments of 1970² and Water Pollution Control Act Amendments of 1972³ were important milestones. A reorganization plan created the Environmental Protection Agency to administer them and other [4 ELR 50129] important environmental protection statutes.⁴

Several pressures have encouraged agency administrators to enforce these environmental protection laws strictly. The federal courts generally have been responsive to the objective of environmental protection, and knowledge that neglect of environmental values may produce an adverse court decision has had a salutary effect on agency decision-making. Apart from passing statutes, the Contress has manifested an interest in environmental protection through oversight hearings and General Accounting Office investigations and reports, which have influenced agency decision-makers. Public concern about and interest in environmental quality has been reflected in widespread participation by individuals and environmental groups in agency decision-making through appearance at hearings, comments on agency proposals and impact statements, and lawsuits challenging agency decisions.

Despite these recent improvements, adequate consideration of environmental interest in agency decision-making is still blocked by at least five obstacles. The first is bureaucratic inertia. It is well known that statutory mandates are one thing, agency performance another. Even with the best intentions, it is difficult for large federal bureaucracies to reform their procedures, indoctrinate old personnel in new ways, hire adequate new personnel and make other necesary changes.

A second problem is that attitudes of agency staff still are far from ideal.Some agency policymakers are hostile to environmental values. The figure who springs to mind is Agriculture Secretary Earl Butz, who has been quoted as hoping that those of us who opposed the Alaska pipeline will be "the first to freeze in the dark." Even more important is the fact that many middle- and upper-level civil servants are so set in their ways that they regard environmental protection as a nuisance to be given lip service only.

A third problem is that private environmental interest groups suffer from a severe lack of resources as compared with their commercial counterparts. Most projects which have significant environmental impacts and require approval by federal agencies would generate profits if approved. Application of stringent environmental protection measures to the project usually will reduce the potential profit. It is often worthwhile, therefore, for the proponent of the project to invest considerable resources to influence the decision in the direction of maximum profit, which often coincides with maximum adverse environmental impact. In many instances, the views of the responsible federal officials can be affected by such an expenditure in ways which in and of themselves are perfectly legitimate. For example, the project's proponent may at great expense acquire and present information which supports his position. He may hire experts for the same purpose. On the other side may be a local citizen's group or perhaps a national environmental group funded by membership contributions or charitable donations, generally not sources of very much income. Thus, it is likely that the resources of those opposing the proposal, and their ability to support their position, will be smaller than that of the proponent.

Fourth, agencies are still hampered by lack of adequate authority to prevent environmental harm. For example, the location of fossil-fuel power plants, which have enormous environmental impacts, is not yet systematically regulated at any level or government. I think of the lady who called me from Georgia recently to tell me of a proposal to construct near her home a huge power plant with thousand-foot smokestacks. There is no power plant siting law in Georgia. There is no federal siting law. The company doesn't have to get a permit from any unit of government to build that plant. Other uses of the land are similarly unregulated. Agencies must skew their decisions under existing laws to take account of these gaps. Fragmentation of agency jurisdiction may have similar consequences.

A fifth obstacle is that even if a federal agency does have adequate authority and makes a good faith effort, it often doesn't have the information and analytical techniques to determine whether environmental values are being adequately considered. The effect of sulphates — air pollutants resulting from the burning of fossil fuels — on human health is not understood, nor is the impact of offshore oil spills on marine ecosystems. We don't know under what conditions stripmined land can be reclaimed, or the effects of pesticides on human health.

Even if an agency does have the information, its analytic techniques often are inadequate. Only now are we beginning to realize, for example, that the techniques for calculating costs and benefits of projects almost always assume that a unit of output now is worth two or three units in 20 years, and that this mode of analysis may not be compatible with ecological values which once disrupted cannot be restored for centuries, if at all.

Perhaps the best way to illustrate the quality of federal environmental decision-making is to give an impressionistic account of decision-making in some agencies with which I or my colleagues have had substantial contact. I will begin with the Atomic Energy Commission, an agency which makes decisions primarily in a so-called "adjudicatory" manner. That is, decisions are rendered by written opinion, on the basis of a written record, following a hearing in which the parties have the right to cross-examine witnesses.

The adjudications of the AEC which have the most impact on the environment are its licensing of nuclear plants.After the passage of NEPA, the AEC claimed it had little responsibility to take the environment into account in its decision-making and dragged its feet about modifying its procedures. The Commission was brought up short by the Court of Appeals for the District of Columbia [4 ELR 50130] Circuit in the well-known Calvert Cliffs' case.⁵ Under the leadership of then Chairman James Schlesinger, the AEC decided to comply with the decision rather than appeal. However, the top-level AEC personnel have not yet become sensitive to environmental values. The AEC remains wedded to the idea that for every problem presented by nuclear power there must be an immediately available technological solution. The AEC refuses seriously to consider the possibility that man, with his frailties, may not be capable of managing some kinds of nuclear technologies even if management techniques can be developed in theory.

The problem of disproportionate resources between environmentalists and industry is especially severe in adjudicatory proceedings like those before the AEC. It has been estimated, for example, that intervention in a single AEC licensing proceeding costs a minimum of $100,000. Environmental groups have succeeded in obtaining some representation despite their limited resources, but they proceed on a shoestring.

Problems of lack of information and inadequate analytic techniques are severe with respect to atomic energy. The long-term effects of low level radiation on human health are unknown, as are other key data. The problem of cost-benefit analysis is acute in light of the fact that some atomic wastes must be managed and segregated from the biosphere for 500,000 years, a period many times as long as that since the last ice age.

Other agencies primarily make decisions "legislative" in character. That is, the decisions are made according to procedures defined in each instance by regulation or the Administrative Procedure Act,⁶ not on a written record, not by written opinion, and usually without a hearing. After a proposal affecting the environment has been formulated, these agencies generally do prepare a draft environmental impact statement as required by NEPA. The statement and the opportunity for comment usually are the main way of informing the public and allowing it to participate in the decision.

The most prominent of these agencies is the Interior Department, which is responsible for managing most of the public lands and the federal portion of the outer continental shelf. The Interior Department is one of the giant federal bureaucracies, with over 60,000 employees, and the problem of bureaucratic inertia has been enormous. However, by now almost all Interior Department decision-making procedures have been revised to take account of environmental values at least on paper.

Unfortunately, the attitudes of many Interior Department career personnel toward the environment leave much to be desired. Historically, the Department had a resource development orientation and became closely allied with client groups ranging from the oil industry to ranchers. No such rapport has developed with environmentalists, who are regarded by many career personnel as suffering from some sort of peculiar affliction. Most Interior Department environmental impact statements appear to be afterthoughts intended to ward off the evil eye of the courts.

The resources required to participate in any particular Interior Department decision are usually smaller than in the case of adjudicatory proceedings. The problem for environmentalists is that at any time the Interior Department is engaging in literally hundreds of decisions with environmental significance. The problems of knowledge gaps and inefficient analytic techniques are very serious with respect to Interior Department decisions. The lack of knowledge about coal stripmining reclamation mentioned earlier is one example. The problems are exacerbated by the fact that Interior Department decision-making techniques are primaitive. For example, the decision to authorize construction of the Trans-Alaska pipeline followed a process in which even a superficial evaluation of the leading alternative, an oil pipeline through Canada, occurred only after the process had been two-thirds completed.

The Environmental Protection Agency has adjudicatory and legislative-type authority in a number of vital areas, including regulation of pesticides, air pollution, and water pollution. EPA differs from most other federal agencies in having environmental protection as its primary mission. The problem of bureaucratic inertia is, therefore, not so significant. The attitudes of EPA personnel are far better than those of most federal officials.In fact, here the shoe is on the other foot, with industry often complaining that EPA doesn't take sufficient account of economic values.

Environmentalists suffer from the same lack of resources for participation in EPA decision-making as elsewhere. However, the problem is ameliorated because environmentalists are one of EPA's client groups, and cooperation does occur. For example, if environmentalists point out an information gap in an area of EPA jurisdiction, EPA will consider funding research to solve the problem, rather than sweeping it under the rug as do many other federal agencies. Problems of lack of knowledge and inadequate analytic techniques are serious, but EPA is the leader among federal agencies in undertaking research to solve them. EPA is not perfect, and environmental groups have brought and won many lawsuits against the Agency, but in my opinion EPA is the only federal agency which currently gives environmental protection appropriate weight in its decision-making.

Agencies in the Executive Office of the President, the Office of Management and Budget and Council on Environmental Quality, engage in what may be termed "policymaking." This may involve either original decisions, as when OMB helps shape the President's annual budget or the CEQ drafts the President's environmental message, or review functions, as when OMB reviews [4 ELR 50131] agency regulations and legislative proposals or CEQ reviews agency compliance with NEPA.

The OMB is the gray eminence which provides most of the President's staff assistance. As an alumnus of the OMB under George Shultz, I'm probably one of its few fans, since its role is usually that of saying "no" to someone's pet project. However, in my opinion the OMB does have an excessive zeal for secrecy. Even the extremely important intragovernmental regulations by which the OMB requires federal agencies to submit proposals to it for review are not published. The OMB has responded to the environmental concern of the 1970's by revising these regulations to require more consideration of environmental values, but, of course, without public participation. The OMB hasn't prepared NEPA regulations governing its own activities, although the CEQ NEPA guidelines require every federal agency to do so.⁷

Although the OMB has added some personnel with environmental sensitivity, it suffers like other federal agencies from a lack of such sensitivity at the higher levels. This defect is exacerbated by the fact that OMB traditionally has been oriented toward economic cost-benefit analysis. Combined with the constant pressure to keep next year's budget as low as possible, these factors often result in neglect of environmental values. For example, the OMB consistently has refused to ask for, and has impounded when Congress has appropriated, reforestation funds for the National Forests, presumably because the payoff will not come for years in the future. On the other hand, OBM's emphasis on economy has led it to oppose dubious water projects on the ground that they won't provide a sufficient return to the government.

The Council on Environmental Quality is the environmentalists' friend in court. Like EPA, it has an environmental protection mission, and its staff has positive attitudes. Within its limited resources — a budget of about $2.5 million per year as compared with EPA's $2.5 billion — it does excellent environmental analysis. However, CEQ's access to the President and top White House staff has been poor, and compared to the OMB its power to influence the actions of other federal agencies, one of the major roles assigned it by NEPA, is miniscule.

No talk on administrative decision-making would be complete without a catalogue of reforms which will enable us to reach Utopia tomorrow. However, I'll limit myself to some modest suggestions which would have a high payoff. I have noted that a major problem is the negative attitudes of high-level federal career personnel. At the least, agency decision-makers should recognize this problem and, in addition to hiring and promoting environmentally sensitive persons, should create ad hoc mechanisms to insure adequate consideration of environmental values. For example, when faced with important decisions such as those on the Alaska pipeline or oil shale development or expansion of offshore drilling, decision-makers should assign environmentally aware persons, with adequate staff support, to make the best possible case for environmental protection. This will insure that environmental impacts and alternatives are not lost in the shuffle as pro-development staff members inflate the benefits of a proposed project and fail to report environmental costs. Though such a devil's advocate approach may appear wasteful, it would result in net savings. For example, had such a team brought forcefully to the attention of the Secretary of the Interior the possibility of a Canadian alternative to the Trans-Alaska pipeline, a great deal of conflict and litigation could have been avoided.

The problem of inadequate resources for environmentalists as compared with industry representatives may never be wholly solved. However, agencies again should recognize the problem and realize they will not receive high-quality input from environmentalists who lack necessary resources. Agencies should make sure, for example, that environmentalists are fully represented on advisory committees, and that they have staff support so they are not handicapped as compared with industry representatives for whom such support is provided by their companies or associations. Agencies should undertake innovative approaches, such as contracting with environmentalists to furnish detailed views on agency proposals without any commitment not to oppose the final agency decision. More far-reaching reforms would be desirable. For example, it has been proposed that the AEC selectively should reimburse environmentalists for participation in AEC licensing proceedings.

Federal agency decision-making would benefit from adoption of Ralph Nader's suggestion that all contacts between agency staff and persons interested in particular decisions be publicly recorded by time, place, persons attending, and general subject matter. We followed this approach when I was a staff member of the Cabinet Task Force on Oil Import Control, and it didn't cause insuperable problems.

Industry lawyers could improve agency decision-making, and serve their clients well, by viewing agency decisions which affect their clients through the eyes of a responsible environmental lawyer trying to see whether the agency has been so derelict in its duty that a successful lawsuit is possible. If an industry lawyer finds that a government agency regulating important interests of his client's best interest, as well as that of sound decision-mak-client's best interest, as well as that of sound decisionmaking, to persuade the agency to reduce the risk by adopting a more responsible regulatory scheme. Yet in my experience industry lawyers rarely do this.

1. 42 U.S.C. §§ 4321 et seq. (1970).

2. 42 U.S.C. §§ 1857 et seq. (1970).

3. 33 U.S.C.A. §§ 1251 et seq. (Supp. 1973).

4. Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), 84 Stat. 2086 (1970).

5. Calvert Cliffs' Coordinating Committee v. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971).

6. 5 U.S.C. §§ 552 et seq. (1970).

7. See 40 C.F.R. §§ 1500.3 -.4 (1974).