Agency Procedures for Public Notice of Proposed Federal Actions: The Requirements of CEQ's NEPA Guidelines Remain Unfilled

[5 ELR 10012]

Five years experience with NEPA has taught environmentalists many lessons, but one of the most important is the necessity for effective administrative procedures for providing early public notice of proposed governmental actions which might significantly affect the environment.

While the Council on Environmental Quality's 1971 guidelines¹ implementing NEPA's impact statement provisions acknowledged that federal agencies "have a responsibility to develop procedures to insure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact," they did little to assure that agencies would shoulder this burden. Under these guidelines, the agency which prepared an environmental impact statement was responsible for making the statement and any comments received concerning it available to the public pursuant to the public information section of the Freedom of Information Act.² But given the provisions of that statute, this represented essentially a duty to make information available upon request rather than to take the initiative and notify the public of the preparation or completion of impact statements and of their availability. The only requirement in the guidelines for publication in the Federal Register concerned notice and summaries of EPA comments on proposed federal action pursuant to EPA's substantive review authority under § 309 of the Clean Air Act Amendments of 1970.³

The procedural NEPA compliance guidelines which federal agencies promulgated in response to CEQ's guidelines reflected this lack of firm guidance on the question of public notice. Some agencies, such as the Department of Housing and Urban Development, the Department of Health, Education and Welfare, the Office of Management and Budget, and the Central Intelligence Agency, merely restated CEQ's invocation of the Freedom of Information Act. Others, such as the Department of Interior, the Veterans Administration, and the Federal Power Commission, imposed requirements that a notice of availability for each completed draft or final impact statement be published in the Federal Register. And the Tennessee Valley Authority, while mentioning such notices, left their publicationin the Federal Register to the responsible official's discretion.

Publication of such notices has now been adopted as policy by most federal agencies, since CEQ's revised NEPA implementation guidelines⁴ clearly require an affirmative effort to notify the public at least of the completion and availability of draft statements,⁵ and publication in the Federal Register is usually less trouble than publication in a local newspaper, an alternative specifically mentioned by the guidelines. CEQ also publishes in the Federal Register a weekly list of impact statements, both draft and final, forwarded to it by all federal agencies, a practice which is mandated by the new guidelines.⁶ Thus, there has emerged an effective public notice system concerning the completion and availability of draft and final impact statements.

But even before this notice system had been achieved, CEQ, in a 1972 Memorandum⁷ to federal agencies on methods for improving agency NEPA procedures, tacitly admitted that such notification would not, by itself, be adequate to serve fully the purposes of the statute. The Memorandum contained a recommendation that "[a]gencies should devise an appropriate early notice system, by which the decision to prepare an impact statement is announced as soon as is practicable after that decision is made." The Memorandum also recommended that as part of such a procedure, the agency "should consider maintaining a list of statements under preparation, revising the list as additions are made and making the list available for public inspection."

This latter recommendation was written into CEQ's revised Guidelines for the Preparation of Environmental Impact Statements which were issued August 1, 1973.⁸ Section 1500.6(e) of the guidelines states that in order to insure, to the fullest extent practicable, provision of timely public information, agencies should, as part of an appropriate early notice system,

(1) maintain a list of administrative actions for which environmental impact statements are being prepared; (2) revise the list at regular intervals … (but not less than quarterly) and transmit each such revision to the Council…. The Council will periodically publish such lists in the Federal Register.⁹

The revised Guidelines also provide that lists of negative determinations and of evaluations which conclude that preparation of an impact statement is not yet timely shall be maintained and made available to the public in the same manner.

[5 ELR 10013]

The need for these new notice provisions is readily apparent. Many of the environmental disputes between the public and federal agencies and much of the flood of NEPA litigation has resulted from the fact that by the time a draft EIS is completed, plans for a proposed federal action have typically crystallized to the extent that any suggestions for environmentally beneficial changes in the proposal will be resistedautomatically by the sponsoring agency. The system of announcing the availability of draft statements after they are completed thus tends to create an adversary relationship between the sponsoring agency, whose bureaucratic inertia is behind the proposal as it stands, and concerned members of the public, whose comments on the draft EIS will serve as their first input into the administrative decisions regarding the project's environmental effects. The realization that these decisions are in most cases already made by the time the draft EIS is completed only serves to intensify public criticism of the draft EIS and to harden many such disputes into litigation.

The rationale behind CEQ's requirement for agency lists of impact statements under preparation is that this recurrent impasse could be avoided if the public were given an opportunity to express its views concerning a proposal's environmental ramifications during preparation of the draft statement. These views could then be considered by the administrative decisionmakers before the agency has formulated a position regarding the proposal's environmental effects, and could either be incorporated into the draft and any appropriate modifications made to the proposal, or rejected with an explanation of why they were unconvincing. In either case, concerned members of the public would be able to see that their views were solicited and considered by the agency in the initial exercise of environmental decision-making regarding the project, and this perception could help dispel the mutual suspicion too often evident between environmentalists and government agencies.

Early public participation of this kind can also often raise important environmental issues which would otherwise be neglected until the later stages of project development, and thereby improve the quality of agency review under NEPA. Thus the requirement for maintenance and publication of such lists is not only of procedural benefit, but has substantive merit for the quality of administrative decision-making on environmental matters as well. Salutary as this notice device of agency lists of negative declarations and impact statements under preparation may seem, however, it has been given little opportunity to prove itself. Although the revised NEPA compliance guidelines of many federal agencies call for the maintenance and quarterly submission of such a list to CEQ, the Forest Service is the only agency which has done so on a regular basis. Interestingly enough, the Forest Service's first publication¹⁰ of such a list, covering impact statements under preparation as of May 15, 1973, predates the revised CEQ guidelines. Since this initial listing, the Forest Service has adopted and adhered to a quarterly schedule for the publication in the Federal Register of a revised list of statements under preparation.¹¹ According to the agency's revised NEPA compliance guidelines,¹² regional lists must be sent to the Washington Office quarterly by December 15, March 15, June 15, and September 15. The Washington Office must then assemble a composite list for transmittal to CEQ and publication in the Federal Register in January, April, July, and October.

The Forest Service has not, however, made concomitant efforts to publicize lists of negative determinations so as to alert the public to the existence of projects for which no EIS will be prepared while they are still at an early stage of development. Although this failure does not take away from the Forest Service's commendable performance regarding public notice of statements under preparation, it nonetheless shows that CEQ's full message regarding notice procedures for proposed federal actions is not getting through to the agencies.

Two other agencies, the Atomic Energy Commission and the Department of Defense, have sent lists to CEQ in response to § 1500.6(e). Each agency has thus far made only one such submission,¹³ and although called quarterly reports, the lists actually covered the period from September 1, 1973 to June 30, 1974. While not as timely as the Forest Service's publications, the AEC and DOD lists included negative determinations as well as impact statements under preparation. And the schedule of publication of such lists may well become more regular in the future, since these initial submissions were apparently intended to reach back to the effective date of the CEQ guidelines.

Some agencies have made it a practice to publish separate notice in the Federal Register of their intent to prepare an impact statement for a particularly controversial administrative action; the AEC's October 1973 announcement¹⁴ that it intended to prepare an EIS for the Liquid Metal Fast Breeder Reactor is one example. But such an unsystematic means of public notice cannot serve as an adequate substitute for the comprehensive scheme envisioned by § 1500.6(e).

Maintenance, revision and quarterly publication in the Federal Register of lists of impact statements under preparation, negative determinations, and decisions that preparation of an EIS is not yet timely represents an effective system for public notification of proposed administrative actions by all federal agencies. By not maintaining and [5 ELR 10014] submitting such lists to CEQ, a number of agencies, including the National Aeronautics and Space Administration, the Central Intelligence Agency, the Treasury Department, the Army Corps of Engineers, the Occupational Safety and Health Administration of the Department of Labor, the Tennessee Valley Authority, the Law Enforcement Assistance Administration of the Department of Justice, and the Department of Agriculture, are violating not only the mandate of § 1500.6(e) of CEQ's guidelines but also the requirements of their own NEPA compliance guidelines. In most of these instances, a period of more than six months has passed since the agency's NEPA regulations were promulgated, and the public notice provisions remain unimplemented. The longer these agencies delay in accepting their responsibilities for the maintenance and submission of such lists, the more probable becomes a legal challenge to their continued inaction. Given the fact that early and comprehensive notice is such an integral part of effective public participation under the statutory scheme of NEPA, it is still to be hoped that the various agencies will voluntarily assume their public notice duties, rather than waiting, as they so often have in the past, for the prod of a judicial mandate.

1. 2 ELR 46049.

2. 5 U.S.C. § 552.

3. 42 U.S.C. § 1857h-7.

4. ELR 46003, 40 C.F.R. § 1500 et seq.

5. ELR 46008, 40 C.F.R. § 1500.9(d).

6. ELR 46009, 40 C.F.R. § 1500.11(c).

7. Memorandum For Agency and General Counsel Liason on National Environmental Policy Act (NEPA) Matters, May 16, 1972, 2 ELR 46162.

8. ELR 46003, 40 C.F.R. § 1500 et seq.

9. ELR 46005.

10. 38 Fed. Reg. 14777 (June 5, 1973).

11. Revised lists have appeared at 39 Fed. Reg. 5675 (Feb. 14, 1974), 39 Fed. Reg. 15329 (May 2, 1974), 39 Fed. Reg. 27475 (July 29, 1974), and 39 Fed. Reg. 37743 (Oct. 23, 1974).

12. ELR 46155.

13. 39 Fed. Reg. 33819 (Sep. 20, 1974). The lists from DOD and AEC were published together.

14. 38 Fed. Reg. 27540 (Oct. 4, 1974).