Two Amendments Leave NEPA Intact; Congress Confers Limited Authority on State Officials to Prepare NEPA Statements

A pair of amendments to the National Environmental Policy Act has recently been signed into law. One of the acts, Public Law 94-83, seeks to clarify federal and state roles in preparing environmental impact statements, and will have a significant bearing on future litigation directed at NEPA statements on federal aid highway projects and other federal actions. The second act authorizes 1976 appropriations and several minor administrative changes for the Council on Environmental Quality, of interest primarily to the Council itself. The texts of both acts, and the full text of NEPA as amended, are printed elsewhere in this issue of ELR.¹ This comment addresses P.L. 94-83 only.

Public Law 94-83 is the enactment of H.R. 3130, a bill that was hotly debated both within and outside the environmental community from the time of its introduction by Congressman LaFalce (D-N.Y.) in February, 1975.² The original impetus behind the bill was the desire to override judicial decisions by the Second and more recently the Seventh Circuit Courts of Appeals which held environmental impact statements inadequate under NEPA solely because they were prepared in the first instance by a state agency rather than the responsible federal official.³ As enacted, the measure declares, with a number of important provisos and limitations, that a NEPA impact statement "shall not be deemed to be legally insufficient solely by reason of having been prepared by a state agency or official." Some, including CEQ officials, viewed the bill's provisions merely as a legislative recognition of existing CEQ Guidelines which, in line with holdings of the Fourth, Fifth, Eighth, Ninth and Tench Circuits, specify that significant and active participation by the federal agency is sufficient to satisfy NEPA.⁴ The CEQ Guidelines have long permitted state agencies, such as highway departments, to perform initial data collection on the environmental impacts of federally-funded projects, and to transmit such data in the form of draft impact statements of the federal official responsible for circulating the impact statement for public and interagency comment and for ultimately filing the statement with CEQ.⁵

Others, including attorneys with the Natural Resources Defense Council, saw the bill as an unconscionable erosion of the bedrock NEPA mandate that impact statements should be prepared entirely by the "responsible federal officlal."⁶ The rationale for holding strictly to this principle is that impact statements prepared by state officials with a pre-existing or even legislatively required commitment to a project were likely to be biased in their basic assumptions. Preparation by federal officials was viewed as the best available protection against such bias, at the same time encouraging federal agencies to institutionalize their responsibilities for the environmental consequences of their actions.

The initial alarm among environmentalists was aroused in part by the bill's genesis. It grew out of efforts by the Federal Highway Administration (FHWA) to secure a congressional override of the Second Circuit's decision in Conservation Society of Southern Vermont v. Brinegar,⁷ which reaffirmed the non-delegation principle. Conservation Society held that FHWA had to prepare its own NEPA statement for a federally-funded project, rather than delegate the task to the Vermont Highway Department. The decision was read by federal highway officials as preventing construction on numerous federal aid projects in New York, Vermont, and Connecticut where FHWA procedures for preparing impact statements did not comply with the court's decision.

As the legislation progressed through Congress, however, environmentalists came together to work for an acceptable version of H.R. 3130, and scored notable successes. A separate bill supported by FHWA passed the House but died in the Senate.⁸ The final provisions of [5 ELR 10174] H.R. 3130 extend the reach of NEPA and strengthen its operative provisions by permitting significant state-level participation in the review of environmental consequences of federally funded actions, while at the same time enumerating and making much more explicit the extent and nature of the continuing federal responsibilities for impact statements initially prepared by state officials.

The language of the amendment leaves no doubt that Congress, in providing for added flexibility in statement preparation, intended no weakening of NEPA's requirement that ultimate responsibility for NEPA statements rests with federal officials.⁹ First, the responsible federal official must furnish guidance to states deciding whether to prepare NEPA impact statements. The same federal official must participate in the statement's preparation and also independently evaluate any state-prepared statement prior to its approval and adoption. Whenever the proposed project or any of its alternatives will have a significant impact upon any other state or on any federal land management entity, the responsible federal official must notify the affected jurisdictions and solicit their views. If there are any disagreements concerning these impacts or views, the federal official must describe them and incorporate his description into the statement. Finally, Public Law 94-83 makes clear, in the event any doubts remain, that the procedures it establishes "shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under [NEPA]".

The congressional committees in charge of H.R. 3130 took care, moreover, to limit the range of federal projects to which the amendment applies. Excluded are federal actions such as licensing, permitting, certificating, contracting, and construction programs which do not provide grants to states. For these actions, no delegation is permitted by the amendment. The limitation to federal actions "under programs of grants to states" seeks to avoid delegation to private applicants for licenses or permits, who might tend toward self-serving assumptions in performing environmental reviews. Appropriately, no delegation is permitted by federal agencies which carry out their own programs, including construction projects, such as the Army Corps of Engineers and the Fish and Wildlife Service.

Furthermore, the amendment authorizes delegation only to state agencies or officials with statewide jurisdiction and responsibility for the proposed action. Federal agencies are therefore not empowered to delegate statement preparation responsibilities to local and regional entities. The amendment explicitly leaves open, however, the question of statements prepared by state agencies with less than statewide jurisdiction, such as state water resource boards covering limited geographic areas.

The new provisions apply to impact statements dated January 1, 1970 or later, except for a provision requiring that federal officials notify other states and federal land management officials in the case of state-prepared impact statements on projects affecting other jurisdictions, which takes effect on January 1, 1976.¹⁰

The amendment is certain to shift the focus of NEPA-based anti-highway litigation. No longer will causes of action be based solely on procedural claims of improper delegation to state officials. Citizen groups and attorneys challenging impact statements will now have to look to the relative substantive contributions of state and federal officials. However, the amendment is not likely to achieve one goal set for it by some supporters: reducing the number of suits brought under NEPA. Language such as "guidance and participation," "independent evaluation," and "responsibility for scope, objectivity and content" terms which define the required continuing federal role, all allow for varying legal interpretations, and invite further definition by the judiciary. Moreover, the question of delegation of NEPA statement preparation to state agencies with less than statewide jurisdiction, a question affecting the numerous regional planning agencies coming into existence under various federal laws, is left unresolved in the amendment, and is also likely to be the subject of future litigation.

The amendment recognizes a principle only implicit in NEPA as originally enacted, that the responsibility of environmental assessment and statement preparation should reside with the officials who have primary discretion in shaping the proposed federal action. Clearly it is sound policy to force the officials making the critical project decisions to take the NEPA-required hard look at environmental consequences at the earliest point in the planning process. A literal interpretation of the unamended NEPA mandate that only federal officials should prepare impact statements could mean that the initial planning for federally aided state projects, which generally takes place entirely at the state level, would escape the discipline of the NEPA process.Only when such a project reached the federal review stage would an environmental impact statement be prepared, a stage when many alternatives have already been foreclosed. The amended NEPA's flexibility thus actually serves to strengthen the statute's operative provisions.

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The amendment fails, however, to provide the Federal Highway Administration with a reduction of its NEPA work load, a potential problem which may well return on haunt NEPA supporters both in and out of Congress. Indeed a current FHWA effort to delegate its NEPA responsibilities altogether on all federal aid highway projects, except those in the Interstate System, is analyzed elsewhere in this month's Reporter.¹¹ But, the signing of P.L. 94-83 should assist FHWA at least to the extent of clarifying the legal sufficiency of impact statements for a number of projects in the Second and Seventh Circuit states affected by the Conservation Society decision, and should make it possible for most of those project to proceed.

Among the projects which still cannot move forward, though, are those being held up for other unresolved NEPA considerations, as is the case with the Route 7 project in Vermont. For future projects, FHWA could attempt to find sufficient flexibility in the new NEPA amendment to permit it to develop a suitable modus operandi, but the agency is unlikely to call off further efforts to amend NEPA. Public Law 94-83 should not be seen as evidence that further amendments will come easily, however. The Act unambiguously reaffirms the intent and purpose of NEPA, and its formative history serves as a clear earning that environmentalists of all shades will join to protect the statute's integrity and that Congress will move to amend NEPA only with extreme deliberateness and restraint.

1. Public Law 94-52, 89 Stat. 258, enacted July 3, 1975. Its text appears at ELR 41014. The text of Public Law 97-83, 89 Stat. 424, is printed at ELR 41014. NEPA, as amended, may be found at ELR 41009, et seq.

2. This debate and the early progress of H.R. 3130 in Congress is reported in an ELR Comment, Congress Under Pressure to Amend NEPA to Allow State Participation in Impact Statement Preparation, 5 ELR 10081 (June 1975).

3. Conservation Society of Southern Vermont v. Secretary of Transportation, 5 ELR 20068, 508 F.2d 927 (2d Cir. 1974); Swain v. Brinegar, 5 ELR 20354 (7th Cir. April 29, 1975).

4. 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). CEQ Guidelines also require federal agencies to make their own "evaluation of the environmental issues and take responsibility for the scope and content of draft and final environmental statements." 40 C.F.R. § 1500.7(c), ELR 46003 at 46006. These requirements have generally been recognized by the courts and are reflected in the language of Public Law 94-83.

5. In explaining the significance of a revision in the CEQ Guidelines now in effect as 40 C.F.R. § 1500.7(c), 38 Fed. Reg. 20553, Aug. 1, 1973, CEQ states: "Some flexibility is preserved, however, to permit the use (after review) of initial information furnished by the applicant in the form of an EIS." 38 Fed. Reg. 10865 (May 2, 1973).

6. See testimony of the Natural Resources Defense Council before the Subcommittee on Surface Transportation, House Committee on Public Works and Transportation, March 6, 1975.

7. 5 ELR 20068, 508 F.2d 927 (2d Cir. 1974).

8. H.R. 3787 passed in the House on April 21, 1975, but was not reported by the Senate committee considering H.R. 3130 and H.R. 3787. (The bills were heard jointly by the Senate Interior and Public Works Committees.)

9. This intent is amplified in the legislative history of H.R. 3130, contained in H.R. Rep. No. 94-144, 94th Cong., 1st Sess. (1975); S. Rep. No. 94-152, 94th Cong., 1st Sess. (1975); and Conference Report to Accompany H.R. 3130, H.R. Rep. No. 94-388, 94th Cong., 1st Sess. (1975). The precise duties of federal officials implied in the retention of "ultimate responsibility" are set forth in a CEQ Legal Report, dated Sept. 5, 1974, available from CEQ. This report is cited in both H.R. Rep. 94-144 and S. Rep. 94-152, noted above.

10. CEQ recently sent a memorandum to agency heads informing them of this effective date, and offering CEQ's assistance in determining whether this provision is applicable to proposed agency actions, and in drafting agency regulations implementing the provisions where applicable. Memorandum for Heads of Agencies, Sept. 15, 1975.

11. See Comment, Federal Highway Administration Launches New Effort to Win Congressional Reduction of Its NEPA Obligations, 5 ELR 10177 (Oct. 1975).