Judicial Review as Reviewed by the Judiciary

Carl O. Bue, Jr., U.S. District Judge for the Southern District of Texas

The available time for this brief presentation does not permit any extended discussion of NEPA — the National Environmental Policy Act and the preparation of environmental impact statements pursuant to its provisions. This statute's basic requirements and obligations have been sufficiently outlined by major court decisions. At the very least, NEPA is an "environmental full disclosure law"¹ — an "action-forcing" statute² which is intended to ensure "substantial and consistent consideration of environmental factors in decision making" by the agencies, even where it may conflict with other federal objectives.³ The court has the obligation to ensure that all federal agencies use "all practicable means consistent with other [4 ELR 50149] essential considerations of national policy" to meet the policies established by Congress.⁴

What do these generalizations mean? In plain language this statute seeks to ensure that "no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance."⁵ An agency's review must reflect a "systematic interdisciplinary approach" and be developed in consultation with the Council on Environmental Quality.⁶ It is a matter of common sense that the field level personnel of the federal agencies, those directly associated with the projects creating environmental impact, are in the best position to become aware of potential conflict between existing practices and environmental policies.

How is this done? NEPA stated indirectly but affirmatively that under certain circumstances federal agencies must mitigate some and possibly all of the environmental impacts arising from a proposed project.⁷ The nature of such mitigation, that is, the reduction of the adverse impact of the project on the surrounding environment, obviously depends on the type and scope of project involved. Reference to mitigation is found in the guidelines of the Council on Environmental Quality, or CEQ, and those of the Environmental Protection Agency, or EPA.⁸ The CEQ, which was created pursuant to Title II of NEPA, has the role of advising the White House on environmental policy. Its influence has been felt through informal discussion, criticism, and its promulgation of written guidelines for agency implementation of NEPA. The EPA is an environmental agency formed subsequent to NEPA dealing with water and air pollution programs, among others, for which environmental guidelines have been published. Issues pertaining to mitigation most frequently arise in the context of considering alternatives to the whole or any part of the proposed project's environmental impact in order to prevent easily avoidable environmental losses. While the courts should not impose unreasonable extremes of compliance or inject themselves into the agency's area of discretion as to what action should be taken,⁹ it is clear that they should not hesitate to require further agency consideration when a project appears to call for mitigation and yet none or only a minimum amount has been considered. On the other hand, the courts will accord great deference to an agency when full compliance is apparent in reaching a decision.

What does the court look to in order to make these determinations? It looks to the environmental impact statement. The existing guidelines of the CEQ and EPA do not yet adequately indicate what amount of detail is required in impact statements. As various courts have pointed out, the impact statement should serve as a comprehensive document on which responsible agency officials and others might rely in making the required balance between environmental and non-environmental factors.¹⁰ It should contain all possible significant effects on the environment.¹¹ Even if the environmental amenity is physically small, the impact statement should deal with it if the environmental impact of the project is to be significant.¹² The time to discover the problems and to examine them for NEPA compliance is before vast sums have been spent in construction efforts, not afterwards.

In preparing the impact statement, objectivity is required of federal agencies, particularly with respect to evaluation of environmental considerations. Such objectivity requires at a minimum an affirmative good faith effort to comply with the provisions of NEPA. This precludes consciously slanted or biased impact statements as well as any attempts at intentional misrepresentation.¹³ As the case law evolves, it appears that the sponsoring federal agency can delegate preparation of the impact statement to the contractor involved, although the agency retains full responsibility for its contents.

Another requirement of the impact statement is that its contents must be "written in language that is understandable to non-technical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise."¹⁴ The reason for this standard is that impact statements must assist in rational, thoroughly informed decision making [4 ELR 50150] by officials higher up in the agency chain of command, including the Congress and the Executive Branch as well as the general public. This factor is also of extreme importance to the courts if and when they are called upon to review the impact statements.

Are there instances in which the full environmental impact statement is not required to be prepared by the agency? The answer appears to be yes, although this clearly does not mean that the agency can ignore NEPA. Instead, even though no detailed formal environmental impact statement is thought to be necessary, NEPA requires an agency to develop a reviewable environmental record.¹⁵ In January, 1972, the EPA issued proposed regulations, since implemented, which require the preparation of a "negative declaration," a brief statement reciting that a named agency has determined that a named project will not have a significant environmental impact and that no impact statement will be prepared. Such negative declaration must be accompanied by a separate document entitled "environmental impact appraisal," which describes the project, its environmental impact, the alternatives, public objections, agencies consulted, and reasons for concluding that there will be no significant environmental impact.¹⁶ What this amounts to is a "mini" environmental analysis by the federal agency which permits all interested parties including the courts to verify that the agency involved has complied with NEPA.¹⁷

What is the obligation of one agency to consult with other agencies before making a decision?NEPA requires sponsoring agencies, prior to preparation of a formal impact statement, to "consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved."¹⁸ The guidelines of the CEQ and EPA expand very little on this point, although the CEQ guidelines do provide lists of agencies arranged by indicated expertise.¹⁹ This inter-agency contact must, in fact, be a true "consultation,"²⁰ not a sham. Because NEPA obligates a sponsoring agency to use a systematic inter-disciplinary approach, the basic burden is on such agency to seek out and contact the appropriate authorities relative to the project in question. Similarly, the other agencies must work closely with the sponsoring agency to ensure that a meaningful contribution is made and incorporated into the impact statement. In short, this statement must capsule the nature of the project, reflect the good and the bad and set forth the reasons why the agency decision was made as it was.

As you can appreciate, this subject does not lend itself well to any streamlined presentation. Only slightly more than three years have passed since NEPA became the law. Interpretations of its provisions are underway in many legal areas, and what we think the statute means today may be construed entirely differently tomorrow. Those of us in the federal judiciary are not comfortable with the state of the law under NEPA, since there are presently so few definitive legal guidelines on which we can safely rely. Additionally, the federal district courts, faced as they are with trial dockets of unprecedented size, do not have adequate manpower and time to devote to the proper resolution of the endless intricacies of NEPA. Yet, in the absence of congressional revision of the statute to clarify policy or to resolve the burgeoning number of inquiries directed to its provisions, the somewhat slower legal interpretive procedures which are underway in the courts must be permitted to run their course.

An example of this process in action can be readily discerned in the recent case of Environmental Defense Fund, Inc., et al v. Corps of Engineers, 4 ELR 20329, __ F.2d __ (No. 72-2874, 5th Cir., April 10, 1974) pertaining to the Tennessee-Tombigbee navigation project. In considering the nature of the plaintiffs' burden of proof in actions challenging agency compliance with § 102 procedures under NEPA, the Court affirmed the district court and adhered to the traditional burden requiring plaintiffs to establish their claims by a preponderance of the evidence. However, the Court recognized that another district court within the circuit had adopted a rule which could produce a contrary result — a requirement only that a plaintiff make a prima facie showing of agency failure to satisfy NEPA, following which the burden of proof would shift to the agency to prove its compliance by a preponderance of the evidence.²¹ The Circuit Court did not pursue the matter further, stating only that:

The facts and issues of Sierra Club v. Froehlke are not before us, and our ruling intends no indication of the validity of the standard applied there. However, the action of the court below in the case sub judice, in applying the standard burden of proof procedure, was correct.

Other points of significance emanating from this opinion [4 ELR 50151] include the Court's recognition of a split among the circuits, a decision to opt in favor of §§ 101 and 102 establishing "law to apply" substantive as well as procedural standards when courts review environmental impact statements, and the Court's conclusion that § 102 (2) (B) of the Act cannot be fairly read to command an agency to develop or define any general or specific quantification process or scheme of values to correlate economic, technical and environmental factors pertaining to a given project.

It is to be hoped that out of it all will ultimately emerge a meaningful statutory structure which will permit all affected entities to know where they stand. In the interim, I have no hesitancy in representing to you that the federal judiciary is doing its utmost under existing circumstances to perform its role in this new legal area in a manner which is consistent with the spirit as well as the letter of the law passed by the Congress.

1. Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 1 LER 20130, 325 F. Supp. 728, 759 (E.D. Ark. 1971).

2. See Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 1 ELR 20346, 449 F.2d 1109, 1113 (D.C. Cir. 1971).

3. 115 Cong. Rec. (Part 30) 40419 (1969), section-by-section analysis of S. 1075 as reported to the Senate. Noted in Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 2 ELR 20620, 348 F. Supp. 916, (N.D. Miss. 1972).

4. See 42 U.S.C.A. § 4331(b) (Supp. 1972).

5. Conf. Rep. No. 91-765, 91st Cong., 1st Sess., U.S.C. Cong. & Admin. News 2770 (1969).

6. See 42 U.S.C.A. § 4332 (a)(A), (B) (Supp. 1972).

7. This requirement is embodied primarily within § 101, 42 U.S.C.A. § 4331, with important implementing assistance from § 102, 42 U.S.C.A. § 4332.

8. CEQ Guideline § 2, 36 Fed. Reg. 7724 (1971). Proposed EPA Reg. § 6.45 (b)(2), 6.45(c), 37 Fed. Reg. 883 (1972).

9. Natural Resources Defense Council, Inc. v. Morton, 2 ELR 20029, 458 F.2d 827, 838 (D.C. Cir. 1972).

10. See, e.g., Natural Resources Defense Council, Inc. v. Morton, 2 ELR 20029, 458 F.2d 827, 834 (D.C. Cir. 1972); Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 1 ELR 20346, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

11. Corps Reg. § 11b, 37 Fed. Reg. 2528 (1972). This obviously requires a high level of knowledge of all possible effects in order that "significant" ones may be identified by the agency when preparing an impact statement. See Corps Reg. § 11a, 37 Fed. Reg. 2528 (1972).

12. Ely v. Velde, 1 ELR 20612, 451 F.2d 1130, 1138 (4th Cir. 1971).

13. Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 2 ELR 20353, 342 F. Supp. 1211, 1214 (E.D. Ark. 1972).

14. Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 2 ELR 20620, 348 F. Supp. 916, 933 (N.D. Miss. 1972); see also, Proposed EPA Reg. § 6.45, 37 Fed. Reg. 883 (1972) ("Statements shall not be drafted in a style which requires extensive scientific or technical expertise to comprehend and evaluate the environmental impact of an Agency action.")

15. Hanly v. Mitchell, 2 ELR 20216, 460 F.2d 640 (2nd Cir. 1972), cert. denied, 409 U.S. 990 (1972); Scherr v. Volpe, 2 ELR 20453, 466 F.2d 1027, 1032 (7th Cir. 1972).

16. Proposed EPA Reg. § 6.31, 37 Fed. Reg. 879, 882 (1972), to have been codified as 40 CFR § 6.31. These proposed requirements became effective February 16, 1973. See EPA Interim Reg. § 6.25, 38 Fed. Reg. 1696, 1699 (1973), and Exhibit 5, 38 Fed. Reg. 1696, 1711, to be codified as 40 CFR § 6.25. See Proposed SCS Reg. § 650.8 (b)(3), 38 Fed. Reg. 31909, 31912 (1973), to be codified as 7 CFR § 650.8 (b)(3).

17. See Hanly v. Kleindienst, 2 ELR 20717, 471 F.2d 823 (2nd Cir. 1972), cert. denied, 412 U.S. 908 (1973).

18. 42 U.S.C.A. § 4332 (2)(C) (Supp. 1972).

19. See CEQ Guideline § 7, 36 Fed. Reg. 7725 (1971), and 7727-29; see also Proposed EPA Reg. § 6.27(b) (2)(iv)(c), 37 Fed. Reg. 882 (1972).

20. See Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 1 ELR 20130, 325 F. Supp. 741, 745, 758 (E.D. Ark. 1971).

21. See Sierra Club v. Froehlke, 3 ELR 20248, 359 F. Supp. 1289, 1334 (S.D. Tex. 1973).