Decision-Making Under NEPA

Gary Widman, General Counsel, Council on Environmental Quality

My comments will be directed to federal issues encountered during my short experience as General Counsel of the Council on Environmental Quality. I would like to start by describing NEPA in perspectives that I have seen during these last few months.

I would first like to call your attention to an item mentioned in news reports of the Administration's position on NEPA. In the recent weeks of energy crisis there was an Administration investigation of NEPA to determine whether the statute should be amended. This investigation finally concluded that the statute should not be amended, even in the face of gasoline shortages and energy production delays (except for the limited proposals already pending in the Emergency Energy Act). That became a firm Administration position which was communicated to both Houses of the Congress. I would like to speculate as to the reason why the NEPA could withstand the pressures of the last few months.

I think the strongest reason is that NEPA embodies sound management policy, irrespective of what one may think about environmental values. The NEPA forces a project manager to take a look at the future, and to account for the effects his project is likely to impose on the community. It is as important to understand environmental problems in advance as it is to understand the fiscal or engineering problems. It encourages a manager to compare those effects against the project's short term benefits, and making that evaluation that is simply sound management practice.

NEPA is an organism that must survive in a hostile environment. It is a measure that requires far-sighted planning, but it must live in a habitat that is focused on the short term. The great pressure of the federal agencies to get short term results will be intensified as they look to crash programs to solve our energy problems. An example was offered by Fred Anderson this morning, with his illustration comparing benefits of shorter gas lines against the costs of many centuries of nuclear waste storage. But the similar thinking controls problems with shorter time frames as well. When a dam is proposed, there is great pressure to construct the project. But when one inquires about the long term effects, such as asking when the dam will silt up, and what will happen thereafter, one frequently finds that those issues get less attention than immediate effects of providing greater water reserves for a town that hopes to expand its population.

[4 ELR 50136]

The second point emerges when one realizes that until recently, federal administrative law was interpreted as regulating only the worst abuses in agency decision making. The principal effect of the law was to build a legal wall, for better or for worse, around an agency decision. It did little to encourage the gathering of information. In fact, it probably discouraged that activity by protecting even uninformed agency decisions that were nevertheless made in good faith. If an agency were to undertake to make a particular decision without any information whatsoever, its range of discretion would be quite broad. Unless it became possible to show that the agency acted in a manner that was arbitrary or capricious, the Administrative Procedure Act would protect the agency's decision. If there were a little information available, that information might indicate that one or two options were ridiculous, or to put it in legal terms of art, "arbitrary and capricious," though a large number of options would still be available to the agency. On the other hand, if the agency were dealing with a matter on which it had a great deal of information, (such as that provided by an environmental impact statement), that detailed information might leave only one or two options that made sense or again in the legal terminology, which were not arbitrary and capricious.

So, this combination of the NEPA and the APA, it seems to me, has had a positive effect on agency decision-making. The NEPA forces the agency to collect information in its EIS preparation, which otherwise could have been omitted from the project files. The mere fact that the information has been collected, therefore has the effect of limiting agency discretion and forces the agency to exclude options which it may have lawfully chosen in the absence of that information. The dynamics of the process, then, put the poor or short-sighted manager at war with NEPA, because it limits the number of legally protected short-range options available to him.

Recent developments alter the earlier thrust of administrative law. These developments can be seen in the pesticide cases, such as EDF v. Hardin¹ and EDF v. Ruckelshaus.² In these cases the courts have said that the agencies must make certain studies although the courts would not dictate what those studies should reveal. At least the courts are saying that agencies must acquire information that they did not have in the past. Once that information is fed into the administrative system, it (like the EIS information) will limit the range of options open to the agency, and so partially counter the gaps in earlier administrative law doctrine.

At this point, I would like to comment on the ABA proposal and on other statements made this morning. I agree that we should clearly understand how the judicial system is operating in the environmental field. But it seems to me that some "lack of uniformity" in judicial interpretations of the scope of judicial review of administrative decisions is not necessarily bad. I notice that your proposal suggests that one of the reasons a study is needed is to increase uniformity and consistency. I sharply question whether uniformity is a desirable goal, in this case. In some ways the judicial evolution of the law can be viewed as a "gradual law making," whereas legislative changes of the law represent "abrupt law making" through clearly defined incremental changes.

There are at least two classes of cases (both common in environment controversies) where the former or "abrupt" type of law making seems to be the most appropriate. These two classes are (1) issues where there is a strong vested interest which opposes change (usually accompanied by much lobbying of legislators), and (2) issues where there is wide diversity in the facts to be covered by the legal concept proposed.

As an illustration of the first, it might be instructive to look at the legal changes in California, where the evolving public trust doctrine has gradually clarified the extent of public rights in beach lands. In that decision in California classic property concepts were refocused by the courts at a time when the legislature refused to respond to strong public calls for action. The courts gradually developed and clarified some public rights in beach lands. During that time a number of beach access bills were proposed to the California Legislature, and it consistently disapproved those bills. Special interest and pressures were widely blamed for the Legislature's inaction. But the majority of the public nevertheless wanted even more rights in beach lands than the courts had prescribed, and a California majority eventually passed Proposition 20, which confirmed such rights. The majority indicated that it was finally willing to take the legislative process into its own hands through a voter referendum when the legislature had refused to act. In retrospect, it would seem to me that the courts had been clearly reading the will of the majority of the people. The freedom that gave the courts the power to gradually refocus the law in that setting was very valuable to the majority of the public. To restrict that freedom to make incremental changes, where tentative judicial changes can be later tested by other courts, legal commentators, legislatures, and the voting public would be to restrict a very valuable evolutionary process in our judicial system.

The second category might be illustrated by the cases where there is a need to define "negligence." While the overall concept is classic, and the thrust of the concept is well understood, the facts to which it must be applied can vary over an infinite range.

When you address the judicial task of defining and applying that stable concept of negligence to the broad spectrum of eligible cases, it seems to me that judicial flexibility becomes highly desirable. Analogous issues are raised by attempts to define "significant" effects on the environment, and other NEPA terms.

Both these categories describe cases where judicial flexibility [4 ELR 50137] is desirable. And because both of these categories have direct analogies in environmental issues, I suggest that the plan be modified to encourage, not discourage, judicial flexibility.

Looking again at decision making under NEPA, I might offer several comments.

Overall, I think that environmental decisionmaking in federal agencies has improved greatly over the last few years, and is still improving. But whether those improvements are enough to give the public any reasonable assurance that our government's decision-making is consistently capable of anticipating and avoiding hazards that could imperil the survival of our life quality or even survivalof the human race in this country, is a much closer question. I suspect that we are running neck and neck in the race between an improving ability to make far-sighted environmental decisions and the escalating complexity and risk posed by new government decisions.

In short, there is great need for NEPA's overriding prescription that the agencies do everything possible to implement the Act's environment policies.

I would also like to reflect on the process that we are trying to examine here — environmental decision-making. If you look for "environment decisions," you may discover that in some agencies an "environmental decision" is hard, if not impossible, to find. Decisions may not be made, they may just evolve. Often there is no single point in the process which one can label as a "decision point." A problem develops, and someone in a field office calls a regional office. That office calls in to Washington, where the problem is presented to the top executive. The issue is questioned, and several answers suggested. Those answers are tested back and forth through the whole administrative chain until a single answer gradually evolves from the information exchange. But there may be no single point where one could state with certainty that a decision had just been made. One of the beneficial effects of NEPA is to encourage agencies to look at their decision-making process, and to give it more structure. For their own purposes, it helps to identify decisions when in the past policies may have simply evolved as suggested above. Overall the Act may have resulted in improved decision and management procedures, that reach far beyond environment issues.

Another problem for a few of the agencies is a preoccupation with short-term problems, with the result that they failed to see that the legal backdrop of administrative law which governs all administrative decisions has changed substantially since 1969 when NEPA was passed. We have seen occasional statements from some agencies suggesting that all they need do to solve their problems would be to amend the NEPA. These suggestions are made with the unexpressed, but nevertheless real, hope that things would then return to the days of 1969 and they would enjoy the same unregulated freedom for agency decision-making. But as Fred [Anderson] also noted, Camp v. Pitts has been decided, and a number of other decisions as well now require a justifiable decision record. There can now be no return to the pre-1970 days of unlimited agency decision-making freedom. So I would suggest that it is important to consider not only the NEPA, but also the parallel developments in interpretation of the Administrative Procedure Act, and to recognize that times have definitely changed.

I would also like to respond to the statements about "unwieldy" impact statements, and an unwieldy EIS process. It was said that the Warm Springs statement ran over 800 pages. There is absolutely no requirement that an impact statement be 800 pages, or even 100 pages long. There is a requirement that the EIS deal with the issues. It is important that the EIS focus on the impacts. It is important that the EIS describe the alternatives, the impacts of alternatives, and the analysis supporting the agency's choice of its project design. If more attention were given to those sections, it seems to me that the size of the average statement could probably be reduced by 70 percent.

I think I have probably run outof time. I would like to state that my office door will always be open to anyone in this group. I am anxious to consider any suggestion for streamlining the EIS process, which will not compromise its critically important missions. Thank you.

1. 1 ELR 20050, 428 F.2d 1093 (D.C. Cir. 1970).

2. 1 ELR 20059, 439 F.2d 584 (D.C. Cir. 1971).