Congress Under Pressure to Amend NEPA to Allow State Participation in Impact Statement Preparation

The recent passage of two bills by the United States House of Representatives¹ is forcing environmentalists to reassess the importance of requiring that environmental impact statements be prepared by the "responsible federal official," rather than by state agencies. Both bills would in effect permit state officials to prepare NEPA impact statements, so long as federal officials involve themselves in the process in a supervisory capacity.

One bill, H.R. 3130, reported favorably by the Committee on Merchant Marines and Fisheries, would amend NEPA itself, by adding a clause which provides that environmental impact statements "shall not be deemed to be legally insufficient solely by reason of having been prepared by a state official or agency" and requires that the responsible federal official furnish guidance, participate in preparing the statement, and evaluate it independently prior to its approval and adoption. The other, H.R. 3787, would amend Title 23 of the United States Code (a compilation of the various highway acts) by providing that impact statements prepared on federal aid highway projects by state officials in New York, Vermont and Connecticut (the three states in the Second Circuit, the one Circuit which strictly construes the NEPA mandate that the EIS be prepared by the "responsible federal official") shall be deemed to be prepared by the Secretary of Transportation for the purposes of NEPA, once subjected to analysis, evaluation and adoption by the Secretary. Both bills apply to all impact statements prepared after January 1, 1970. The measures are now before the Senate, where the conflicting and redundant approaches in the House-passed bills are expected to be resolved in favor of H.R. 3130.²

The bills grew out of the unwillingness of the Federal Highway Administration (FHWA) to accept the Second Circuit's decision in Conservation Society of Southern Vermont v. Bringear.³ In that case, the Court ruled that FHWA must prepare its own NEPA statement for a federally funded project, rather than delegate the task to the Vermont Highway Department. FHWA has consistently required that states applying for federal aid prepare their own NEPA impact statements. In rejecting the impact statement prepared for the Vermont project solely on the ground of state authoriship, the Second Circuit confirmed its initial ruling on the question of delegation of impact statement preparation in Greene County Planning Board v. FPC.⁴ Since that earlier decision, however, five other circuits have reached the opposite conclusion, finding in a variety of factual situations that it is permissible for federal agencies to delegate the drafting of impact statements.⁵ FHWA has asked the Solicitor General to petition the Supreme Court for a writ of certiorari in the Conservation Society case, but the Supreme Court denied a similar writ in [5 ELR 10082] Greene County, allowing the decision to stand. Even if the Supreme Court grants the new petition, the Court could not hear the case for some time.

Faced with several options for the interim period, FHWA rejected an alternative urged upon it by the Council on Environmental Quality (CEQ) to adopt a reading of Conservation Society which would permit a role for state agencies in the development of environmental information furnished in the form of a draft EIS, and thereby esentially preserve existing relationships between FHWA and the state highway departments. Instead FHWA chose to read the decision rather unresourcefully as an absolute rejection of FHWA procedures, allowing for no administrative adjustments. FHWA proceeded to halt project approvals for a number of highway projects requiring impact statements in the three Second Circuit states for which impact statement preparation did not conform with the decision in Conservation Society. The result, quite clearly intended by FHWA, was a congressional move to amend NEPA. The roadbuilding industry in the three states went into a predictable uproar, raising the specter of increased unemployment among construction workers. By FHWA's count, the terminations affected 24 projects slated for major activity during the 1975 construction season. The industry's count put the total at three times FHWA's and it pointed out in addition that projects made possible by the President's release of $2 billion in impounded federal construction funds may go by the boards.

FHWA's stratagem has also opened up a split among environmentalists on whether to support H.R. 3130 in the Senate. One group, going under the banner of "SAVE NEPA," argues that the bill "will do lasting harm to the Act" (NEPA). SAVE NEPA recently circulated an "action alert," asking recipients to telegraph or write their Senators urging a vote against both H.R. 3130 and H.R. 3787. The "alert" states that "[A]ny conflict in courts' interpretations of NEPA should be resolved by the U.S. Supreme Court." Yet others, including the Council on Environmental Quality, note that congressional action to amend NEPA regarding state preparation of impact statements appears to be inevitable, and believe it to be advisable to work with committees in the Congress for the best bill possible, rather than leave it to the present Supreme Court. CEQ Chairman Russell Peterson thus testified before a joint meeting of two Senate committees on May 5 that H.R. 3130 should be enacted as the only acceptable resolution of the general problem, a position for which CEQ won support from the White House and OMB.

The high likelihood that the Senate will act soon on the House-passed bills, regardless of the opposition of several environmental groups, makes it urgent that such groups and others seek inclusion of provisions to protect the fundamental objectives of NEPA. What is needed, if one accepts the inevitability of state involvement in impact statement preparation, is (1) formulation of a general rule allowing state participation without eroding ultimate federal responsibility for the scope, objectivity, and content of the statement and for an independent review or evaluation of the statement prior to its approval or adoption; (2) a means of limiting applicability of the general delegation rule to those federal agencies faced with an urgent and legitimate problem requiring delegation of EIS preparation to a state agency; (3) a means of limiting participation to state agencies and officials capable of performing an environmental review which meets the requirements of § 102(2)(C)(i)-(v) of NEPA; and (4) a way of protecting against parochial or segmented environmental review by a state agency in instances of projects which cut across state lines or which have a multistate impact. Each of these concerns merits exploration.

Retention of a primary federal responsibility for the scope and content of impact statements and for independent analysis of the issues presented is critical because of the danger that self-serving assumptions applied by state agencies at the outset of the EIS preparation process will bias the scope and possibly the outcome of the environmental analysis. This concern was at the root of the Second Circuit's holding in Conservation Society. In this case, the state agency in question, the Vermont Department of Highways, was operating under a mandate from the state legislature to expand Route 7 along a specified corridor, leaving the state highway department which prepared the impact statement no freedom to consider alternatives to the proposed action. It may be true that requiring federal preparation does not always insure less bias, since any mission-oriented federal agency like FHWA bent on achieving its objectives may be inimical to environmental values and therefore prone to minimize the EIS process. Nonetheless, the higher visibility of the performance of federal officials to the scrutiny of the Congress, other federal agencies, and national public interest litigation groups makes it easier to guard against this tendency at the federal level than at the state level. Moreover, some benefits can be expected from the development by federal agencies of in-house environmental review teams whose members may be less preoccupied with the agency's given mission than its general staff. Such a team functions, for instance, in the Office of the Secretary of Transportation, and this team frequently requires upgrading and other revisions of FHWA-prepared and FHWA-approved impact statements. When agency teams perform in this way, they help bring about NEPA's most basic objective, to force changes in agency decision-making processes that will make the agency more sensitive to environmental values.

A second objective of an amendment to NEPA permitting delegation should be to limit delegation authority to those federal agencies for which it is appropriate. Delegation would rarely if ever be appropriate, for instance, for a federal agency engaged in licensing private applicants, where preparation of impact statements by such applicants would encounter most [5 ELR 10083] directly the problem of self-serving assumptions. It was this situation which the Second Circuit addressed in its 1972 opinion in Greene County. Nor would authority to delegate be appropriately vested in federal agencies which carry out their own programs, such as the Army Corps of Engineers and the Fish and Wildlife Service. The problem of delegation seems to occur most frequently in federal actions arising out of federal grants to the states and to other public bodies. Under such grant programs, the projects are numerous, and knowledge of local factors by applicants is greater than at the federal level. Thus authority to delegate impact statement preparation might appropriately be allowed for federal actions funded out of programs of grants to the states. The Department of Housing and Urban Development, in fact, has recently secured legislative authority to delegate NEPA review and statement preparation responsibilities to state and local grant applicants for community development block grants.⁶ Under the watchful eye of CEQ, the program appears to be developing satisfactorily, though it is still too early to render definitive judgments on the HUD program.

Third, a limitation on the types of groups within states which would be eligible to take part in impact statement preparation is needed. The view is generally held among those considering NEPA revisions, for instance, that local sewer districts, whose members are appointed, and thus not subject to the same constraints of the political process as elected officials, should not be delegated environmental review responsibilities. Even though the HUD delegation program includes local applicants, these applicants are discouraged from adopting a biased approach to their task by the structure of the HUD scheme, which provides among other requirements that applicants accept the jurisdiction of the federal courts for purposes of enforcing NEPA. In drawing up a general rule covering all federal grant programs, the goals of NEPA would be better achieved by limiting delegation to agencies with statewide jurisdiction. Such a restriction would help ensure that agencies and officials entrusted with review and statement preparation responsibilities are equipped to perform the tasks they have assumed with a greater level of competence and available resources to support the effort than would be the case if local agencies were permitted to participate.

Finally, no delegation rule should allow a project crossing state lines or with major interstate impact to be delegated to any single state. Obviously, if such delegation were permitted, a more segmented review would take place, and spillover effects from one state into another might not adequately be taken into account. One solution to this problem might be to require states affected to prepare joint or regional reviews, as needed. Another would be to require an independent federal analysis of such projects, either as an alternative or in addition to any state, multistate, or regional reviews.

The amendment to NEPA to permit a limited involvement by statewide agencies in performing environmental reviews and in preparing impact statements may take place regardless of the preferences of environmentalists. This may be the case whether the matter is ultimately resolved in the courts or in Congress. Such a change might even be viewed as desirable, however, since it makes possible the extension of the benefits of NEPA beyond the range of agencies and officials affected by the current system. Forcing state officials who carry out the early phases of developing programs for which federal funds may later be sought to perform a NEPA-type environmental review will assist in ensuring consideration of environmental factors at the earliest possible state in the conception and development of programs and projects, and encourage such officials to abandon those with obviously harmful environmental consequences. Such a benefit has especially high potential for instance in the highway program, where all the early planning, programming and design decisions are in the hands of state officials. It would also seem of value in states such as New York, Connecticut and Vermont, which have not enacted legislation patterned on NEPA, providing for preparation of impact statements or reports on state agency actions. In short, it is poor policy to concentrate environmental review and impact statement preparation entirely at the federal level if the result is to divorce consideration of environmental factors from the critical phases of early project planning.

Moreover, a formal legislative recognition of the appropriateness of a limited form of delegation to state agencies, in effect subjecting the current operating reality of state highway department participation to explicit limits and controls, could result in higher quality impact statements, and strengthen the grip of NEPA processes on important decisions affecting the environment.

Neither of the House-passed bills addresses each of the concerns explored in this Comment. H.R. 3787, amending the Highway Act, and applying to only three states, must be dismissed as an ill-advised and hasty attempt at a partial solution to a complex national environmental law question. The other bill, H.R. 3130, seeks to amend NEPA and would apply throughout the nation. It defines with far greater care than H.R. 3787 the continuing federal responsibility in a shared federal-state procedure for preparing impact statements, by providing that the new procedure it establishes shall not relieve the federal official of his responsibilities for the [5 ELR 10084] scope, objectivity and content of the statement "nor of any other responsibilities" under NEPA, including responsibility to defend any lawsuits challengingthe compliance of jointly prepared impact statements with the Act.

H.R. 3130 has several failings, however, which the Senate has an opportunity to remedy in the coming weeks. As it passed the House, H.R. 3130 applies to all federal agencies and actions, rather than only to federal actions funded by federal grant programs. It does not limit eligible state agencies to those with statewide jurisdiction. Moreover, it fails to take special account of projects with major interstate significance. Several environmental groups are now at work to eliminate these deficiencies.⁷ If they are successful, the result could be a refinement of NEPA which actually strengthens the statute against further legislative attacks.

1. 121 Cong. Rec. H2994-3010 (daily ed. Apr. 21, 1975).

2. At this writing the Senate has passed by voice vote (May 22, 1975) an amended version of H.R. 3130. (See n. 7 infra for text.)

3. 5 ELR 20068, __ F.2d __, (2d Cir. Dec. 1974). See also Comment, The Second Circuit Reaffirms Greene County and Upholds Programmatic Impact Statement for Route 7 Corridor, 5 ELR 10030 (Feb. 1975).

4. 2 ELR 20017, 455 F.2d 412 (2d Cir. 1972), cert. denied, 409 U.S. 849 (1972).

5. Movement Against Destruction v. Volpe, 4 ELR 20278 (4th Cir. 1974); Finish Allatoona's Interstate Right v. Brinegar, 3 ELR 20780 (5th Cir. 1973); Iowa Citizens for Environmental Quality v. Volpe, 4 ELR 20056 (8th Cir. 1973); Life of the Land v. Brinegar, 4 ELR 20295 (9th Cir. 1973); Citizens Environmental Council v. Volpe, 4 ELR 20009, (10th Cir. 1973). More recently, delegation was permitted in Fayetteville Area Chamber of Commerce v. Volpe, (4th Cir. May 5, 1975), the court distinguishing the fact situation it faced from the facts of Greene County, and delegation was declared improper Swain v. Brinegar, (7th Cir. Apr. 29, 1975), in which the court states "… we believe the clear requirement that the 'responsible federal official' prepare the EIS for all major federal projects must be strictly enforced." Also, in Appalachian Mountain Club v. Brinegar, 5 ELR 20311 (D.N.H. Mar. 25, 1975) the court ruled that NEPA is violated when the responsible federal official fails to make an independent environmental analysis of the possible environmental effects of the project in question.

6. See Comment, Controversial NEPA Implementation at HUD: Shifting Environmental Review Responsibilities to Local Grant Applicants, 4 ELR 10193 (Dec. 1974).

7. The version of H.R. 3130 as amended (reflecting the efforts of CEQ and representatives of environmental groups) reported to the full Senate on May 21, 1975, reads:

Any detailed statement prepared after January 1, 1970, on a major Federal action funded under a program of grants to states shall not be deemed to be legally insufficient solely by reason of having been prepared by a state agency or official which or who has statewide jurisdiction and has the principal planning and decision making responsibility for the action funded by any such grant if the responsible federal official furnishes guidance and participates in such preparation and independently evaluates such statement prior to its approval and adoption: Provided, That in any statement on any such action prepared after June 1, 1975, the responsible Federal official shall prepare independdently the analysis of any impact of and alternatives to the action which are of major interstate significance: Provided further, That the procedures set forth in this paragraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement, nor of any other responsibilities under this Act.

This language, if enacted, would place clear limits on delegation of impact statement preparation, and would adequately define continuing federal responsibilities. Equally important is an objective which environmental groups are also presently pursuing, the construction of a legislative history which will make it clear to an interpreting court that while the initiative to amend NEPA came from opponents of NEPA, the final language was supplied by supporters of NEPA, and is intended to reaffirm the intent and purpose of the original act.