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I. INTRODUCTION AND PURPOSE OF THIS STUDY

Even though the federal bureaucracy has contended with the National Environmental Policy Act (hereinafter "NEPA")¹ for almost five years, most federal agencies are still developing their systems for implementing the Act. Much litigation and scholarly discussion have been generated by the "threshold determinations" made by each agency pursuant to NEPA's § 102(2)(C). Each "entry wasy decision" states whether or not a proposed agency action requires a formal environmental impact statement (hereinafter "EIS" or "impact statement") to be filed with the Council on Environmental Quality (hereinafter "CEQ").²

The federal agencies are still developing their highly imperfect systems for threshold decision making. This evolutionary process has received practically no direction from the United States Supreme Court and inconsistent guidance from the federal circuit and district courts. Thus the various departments and agencies now employ notably different structures, procedures and attitudes in the daily course of deciding which projects receive impact statements.

Organizational structures differ from agency to agency. Some commit the decisions on whether or not to file a formal impact statement to the division or field office responsible for the subject project.³ Other agencies make threshold decisions through a centralized, hierarchical reviewing process at agency headquarters.⁴

Agencies also display different degrees of utilization of the EIS-filing process. Some federal agencies file impact statements for practically every project, no matter how environmentally insignificant.⁵ This practice wastes public funds on unneeded impact statements and is contrary to the terms of NEPA, which require a formal statement only for a major federal action significantly affecting the quality of the human environment. Furthermore, the indiscriminate preparation of full impact statements for all projects diverts agency resources from intensive assessment of truly significant environmental impacts and tends to convert the EIS process into an insubstantial ritual.

On the other hand, some agencies file relatively few EIS's but instead issue many "negative declarations." A negative declaration asserts that a proposed project is not a "major [federal] action significantly affecting the quality of the human environment" (i.e., a "MASA-QHE" in bureaucratic patois)⁶

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Such a negative threshold decision averts filing of a full impact statement with the CEQ, stating that an EIS is unnecessary. An excessive use of negative threshold rulings clearly violates NEPA's mandates and spirit, since the EIS filing process is the central feature of the Act.⁷

Although many federal actions clearly do or clearly do not require filed impact statements, many other projects fall into a "gray area" of NEPA compliance. These are borderline cases for which legitimate grounds exist for filing with the CEQ or for a refusal by the agency to file. These "gray area" projects have inspired many lawsuits and bureaucratic ulcers, yet the agencies display divergent attitudes or presumptions on filing for these "close cases."

The U.S. Navy has developed a centralized, hierarchical system for threshold decision making. The Navy rarely files impact statements for "gray area" cases and has encountered noteworthy problems as a result. This paper attempts to analyze the practical and legal considerations which influence the Navy's present modus operandi.

Because the Navy has amassedconsiderable experience with NEPA, this study may provide insights to other students of the Act. Analysis of both strengths and weaknesses of the Navy's system may improve the NEPA decisions of other federal agencies.

More importantly, the author has attempted to identify and document serious problems which now frustrate optimal performance of the Navy's duties under NEPA. The author has also proposed revisions in the Navy's system to enforce NEPA. Hopefully these changes would help to solve the specified problems and accelerate the evolution of an outstanding structure for environmental protection.

The defects in the Navy's NEPA program must be corrected for several reasons. First, the Navy should reap many practical benefits from complying more perfectly with NEPA. These advantages include fewer lawsuits, fewer legal defeats when suits are brought, and better relations with the American public.⁸

Second, the Navy is clearly obligated by NEPA and by the directives of the executive branch which implement NEPA to perfect Navy procedures to enforce that Act.⁹ The Navy is legally required to adopt those measures necessary to remedy the failings discussed herein.

Third, these legal mandates reflect a tangible necessity that the Navy protect the human environment from degradation. The vast dimensions and the nature of Navy activities present a frightening potential for adversely affecting the global ecosystem. Because the Navy's potential environmental impacts are probably greater than those of any other federal agency,¹⁰ the Navy's responsibilities under NEPA are commensurately great and require an optimal system to fulfill those responsibilities.

II. DESCRIPTION OF THE NAVY'S BASIC SYSTEM FOR NEPA THRESHOLD DETERMINATIONS

A. The Mission of "OP-45," the Navy's Headquarters for NEPA

The routine operation of the Navy's facilities, ships and programs could greatly degrade environmental quality worldwide absent an effective system for environmental protection. To curb this immense potential for "adverse environmental impacts," the Navy now conducts the largest environmental program of all federal agencies.¹¹

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The Navy's leaders take pride in their record for protecting environmental quality, claiming to exceed the minimal requirements of NEPA and other federal environmental laws.¹² The Navy's environmental program is implemented through every local Navy command under the direction of the Environmental Protection Division of the Chief of Naval Operations ("CNO, OP-45"),¹³ which is strategically located at the Navy's Pentagon headquarters. Predictably, much of the work of OP-45 seeks to comply with NEPA's mandate to consider potential environmental impacts of all significant Navy actions.

Following the military penchant for hierarchical decision making, the Navy makes every important NEPA threshold determination at the OP-45 central headquarters. Nonetheless, the information on which a threshold decision is based is compiled by the "claimant command" which sponsors the underlying project.¹⁴ This sponsoring command presents environmental impact data in one or more documents prescribed by OP-45.

B. The Documentary Record for Navy Threshold Decisions: The "Candidate EIS"

The simplest Navy document for environmental evaluation is the "Environmental Impact Assessment" (hereinafter "EIA"), which is prepared at the inception of practically any Navy "action" and which conforms to a simple, standardized format.¹⁵ Because the vast majority of EIA's describe very minor projects (such as a construction of a small building inside a naval base), most conclude promptly that no environmental impact could result from the subject action.¹⁶

The Navy evaluates its more important projects with an elaborate form of assessment known as a "Candidate Environmental Impact Statement" (hereinafter "CEIS" or "Candidate EIS"). The major claimant command must prepare a Candidate EIS if its initial EIA indicates to the command (or to OP-45) that "a significant adverse environmental effect will result" from the proposed action, or if the action "is likely to be highly controversial environmentally."¹⁷ These criteria for preparation of a Candidate EIS also define a "MASAQHE," which requires a filed impact statement.¹⁸ Thus a Candidate EIS is prepared by a claimant command if that command determines that a filed statement is probably required for its project.

OP-45 has also designated numerous categories of Navy undertakings for which Candidate EIS's must be prepared by the sponsor-commands. These "mandatory CEIS actions" include most major Navy activities,¹⁹ such as development of new weapons systems, dredging operations, construction of new Navy family housing projects or new Navy installations, establishment of target ranges, conducting training exercises on non-military lands, acquisitions or outlease of real estate, and many other actions.

Because of their expense, scale and controversial natures, every "Mandatory CEIS Action" is likely to be "MASAQHE," which requires a filed impact statement. Therefore the mandatory CEIS is prepared in advance and can be filed as an impact statement if a formal EIS becomes necessary.²⁰

The Navy's CEIS is a relatively intensive documentation of possible environmental impacts or controversy. Thus a Candidate EIS usually must be prepared for the claimant command by a private contractor or by the nearest Engineering Field Division (hereinafter "EFD") of the Naval Facilities Engineering Command (NAVFAC).²¹ The average Candidate EIS is much more expensive than an EIA and often requires at least three to six months to prepare.²²

The Navy's system now requires claimant commands to prepare Candidate EIS's for nearly all Navy projects which could require filed impact statements. This is demonstrated by the fact that 304 EIA's were reviewed by OP-45 for the Fiscal Year 1974 Military Construction Program, yet only 3 had to be returned to claimant commands [5 ELR 50052] for preparation of CEIS's.²³

Because each Candidate EIS has been developed according to the basic criteria for preparation of a formal impact statement, a CEIS usually requires little or no amplification to be filed with the CEQ.²⁴ Furthermore, the great majority of Navy actions for which Candidate EIS's have been prepared are either clear cases for filing or borderline cases where filing might be appropriate. This conclusion follows from the official Navy criteria for preparation of a CEIS²⁵ and from the official definition of a CEIS:

Those assessments of any action considered to have a significant effect on the quality of the human environment or to be highly controversial with respect to environmental effects and accordingly forwarded via the chain of command to the Chief of Naval Operations (OP-45) for review.²⁶

Yet, despite the large number of Navy CEIS's held by OP-45 as ready-to-file impact statements, relatively few CEIS's actually are filed with the CEQ. Although 180 Candidate EIS's have been considered by the CEIS Review Panel,²⁷ only forty-two formal impact statements had been filed with the CEQ as of December 1, 1974.²⁸

The directors of the Navy's NEPA program readily admit that these figures suggest their lack of enthusiasm for the NEPA filing process. It is admitted that every Candidate EIS could be filed as an impact statement; in fact, less than one-fourth of CEIS's are filed with the CEQ.

These facts, together with the evidence discussed hereinafter, show that the Navy does not file impact statements for most "gray area" actions for which filing is not clearly required by NEPA. This reluctance to file formal EIS's has many notable motivations and consequences.

C. The Structure and Personnel Composition of OP-45 And the CEIS Review Panel

The basic policies and decisions for the Navy's NEPA threshold determinations originate at OP-45. The local claimant commands merely forward each Candidate EIS to this central office, where the CNO's CEIS Review Panel makes the preliminary decision whether or not to file a candidate statement with the CEQ.²⁹

The CNO and higher Navy authorities have the last word on filing vel non, but in actuality most threshold decisions made by the CEIS Review Panel prevail.³⁰ Nonetheless, both the Review Panel and OP-45 as a whole are subject to pressures from Navy authorities, usually calculated to discourage filing for sensitive projects.³¹

The Chairman of the CEIS Review Panel is the civilian Head of the EIS Branch of OP-45.³² Practically all Panel members are also civilian employees of the Navy who have technical expertise in matters relating to potential environmental impacts of Navy actions.³³

The Chairman designates the size and membership of each particular Review Panel, thereby assembling representative experts from the particular disciplines needed to evaluate a specific proposed action. These experts are drawn from seventeen Washington headquarters of specialized Navy offices, such as the offices for ordnance, supply, research, medicine, shore facilities, oceanography, aviation and weather.³⁴

Practically all members of the Review Panel and the staff of OP-45 have technical or scientific educations augmented by practical experience.³⁵ Most of the staff and Panel members hold or have held responsible positions controlling environmental pollution from Navy operations or planning the Navy's environmental protection programs.³⁶ Thus the Review Panel is well adapted to evaluate the technical and scientific aspects [5 ELR 50053] of Navy environmental impacts, to the extent that these are adequately presented for review in each Candidate EIS.

Of course, the Navy must consider difficult non-scientific factors in making many NEPA threshold decisions. Thus, in theory, the Review Panel must master questions of law, public relations, and the social sciences in considering "environmental controversies," land use planning, pending litigation, etc. For help in these matters, the Review Panel can call upon a representative of the Chief of Naval Personnel and can seek legal advice from a Navy environmental lawyer.³⁷ Clearly the Panel was not designed to consider potential environmental controversies and legal questions. Predictably, these matters have proved very troublesome for the Navy's NEPA threshold determinations.

D. Sources of Information for Navy Threshold Decisions

The sources of environmental data with which the CEIS Review Panel habitually makes its threshold rullings are extremely limited. For practically every case reviewed, the Panel considers only the Candidate EIS submitted by the claimant command which is sponsoring the project in question.³⁸

Neither the Review Panel as a whole nor individual Panel members visit the field locations of the activities being reviewed for NEPA compliance.³⁹ Nor do the Panel members communicate with the individuals who plan Navy activities in the field and who actually prepare the candidate impact statements for them.⁴⁰ In fact, the Panel members usually have no personal contact whatsoever with the project under review or with the command which sponsors the project and prepares the CEIS.⁴¹

This insulation of the Review Panel from the claimant commands should at least yield "objective" threshold determinations.⁴² Undeniably, Review Panel members display less "bias" in favor of a particular project than would a sponsoring command if it made its own threshold NEPA decision for its own undertaking.

On the other hand, the reliability of any Review Panel threshold decision is almost totally dependent upon the accuracy and completeness of the Candidate EIS upon which that decision is founded. This condition invites misinformation, because a claimant command may wish to present an inaccurate CEIS contrived to ensure a negative declaration from the Review Panel. The Review Panel has no effective check on such misleading practices at this time.⁴³

Even if the Review Panel is somehow alerted to environmental problems of a project, the one-sided flow of information continues. The Review Panel very rarely receives evidence which might challenge the project's CEIS.⁴⁴ The Panel has never invited a spokesman to present the viewpoint of opposition to a Navy project.⁴⁵

Instead, for the rare instance where the Review Panel seeks information beyond the CEIS, this information usually comes from a representative of the Washington headquarters office of the claimant command.⁴⁶ That spokesman, when he is summoned by the Review Panel, may present only data which favors the claimant command's project.⁴⁷

In addition, the headquarter's employee works in Washington and very rarely has first-hand knowledge of conditions at the project's site. His information, like that of the Review Panel and OP-45, must come from the command which sponsors the action under review.⁴⁸ The problems presented by the foregoing features of the Navy NEPA system are discussed later in this paper.

III. EXPLANATIONS FOR THE NAVY'S POLICY ON NEPA THRESHOLD DETERMINATIONS

A. The Navy's Interpretation of Its Duties Under NEPA

The policymakers of OP-45 and the Navy Review Panel interpret the essential command of NEPA to require "internalized" consideration and mitigation of environmental impacts of Navy actions. Their manifest view has been that formal impact statements for "gray area" projects are unnecessary and "non-cost-effective" formalities.⁴⁹

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This attitude doubtlessly reflects the daily work in environmental protection planning and pollution abatement of the OP-45 staff and the CEIS Review Panel members. The professional competence of these officials and their divisions in minimizing environmental degradation may seem challenged by each filed impact statement. Their candidly stated interpretation of a filed impact statement is that an EIS stigmatizes the underlying project as environmentally harmful despite their best efforts.⁵⁰ In addition, the Navy's officials claim to be unimpressed by the purported values of the EIS-commenting mechanism for involving the public and other governmental units in the processes of Navy decision making.⁵¹ These attitudes provide a partial explanation for the small number of Candidate EIS's filed with the CEQ as formal impact statements.

The Navy's successful record in environmental protection under NEPA indicates the operational, "real world" value of the Navy's interpretation of its NEPA duties. The CEQ-sponsored management study of Navy compliance with NEPA (conducted by Presearch, Inc.)⁵² concluded: "The available evidence indicates that all Navy programs and projects have been brought into compliance with NEPA at this time."⁵³

Apparently this conclusion was founded on the Navy's excellent record in identifying and minimizing adverse environmental impacts from a wide range of activities examined in the study. However, almost all of these commendable Navy actions to protect the environment are undertaken through an informal, internalized program independent of the NEPA procedure of filed impact statements.⁵⁴ Nonetheless, the Navy's practice of not filing for close cases is supported by a well-documented record of self-enforced environmental protection.

B. The Navy's Unrewarding Experience with Its First Filed Impact Statements

The Navy's disappointing returns from its early investments in filed impact statements have doubtlessly contributed to its current reluctance to file Candidate EIS's.Some Navy officials analyze the comments received on the first set of filed Navy statements to downgrade the filing process as a superfluous ritual. Since the expenses of filing compete against other pressing Navy requirements, Navy officials can contrast the nonproductive EIS mechanism against their effective internal program of environmental protection.It would follow that the Navy should not file impact statements for "gray area" cases but only where filing is unavoidable.

In theory, the most valuable function of comments made in response to a draft environmental impact statement [hereinafter "DEIS" or "Draft EIS"] would be to propose substantive changes and alternatives for planned Navy projects. Such comments hopefully would expose undiscovered or unresolved environmental harms and suggest modifications in the underlying projects to reduce these harms.

Unfortunately, if comments on the early Navy DEIS's are evaluated on a quantitative basis, the record suggests that comments usually sought to refine the EIS-compilation process rather than to alter the actual environmental impacts of proposed Navy actions. The Presearch study reveals that only nine percent of all comments asked for even minor changes in the subject project; thirty-seven percent asked for changes in the EIS itself.⁵⁵

A proponent of the EIS filing system might at least hope for substantive comments on each project's impact from the Environmental Protection Agency ("EPA") and the Departments of Agriculture and Interior. Although these agencies submitted fifty percent of all comments,⁵⁶ the Navy's early experience did not fulfill such hopes.

Fifty-seven percent of EPA's comments requested changes in the content of impact statements; no EPA comment asked for a change in the project. Fifty-one percent of Interior's comments requested EIS changes; twenty-one percent requested project changes. Twenty percent of Agriculture's comments requested EIS changes; ten percent requested project changes.⁵⁷

Local governments also might be expected to request many project alterations to reduce environmental impacts. However, local governments addressed only four percent of their comments to proposed project changes.⁵⁸

The Navy's environmental officials denigrated these early comments as insubstantial "nit-picking" and responded to them accordingly.⁵⁹ Many comments received no response, a verbal response or a defensive reply in the final environmental impact statement [5 ELR 50055] (hereinafter "FEIS" or "Final EIS").⁶⁰ The Navy's reaction to the few comments which had requested major changes in its projects was to adopt no such changes but instead to respond verbally or in the Final EIS.⁶¹ Even the comments requesting minor change in projects received only a fourteen percent favorable Navy response.⁶²

One possible conclusion from these data is that the Navy's internalized system for environmental protection has generally eliminated significant environmental problems: the Presearch study adopts this illation.⁶³ Opponents of the impact statement process further infer from these statistics that the Navy need not file statements in doubtful cases, since to do so serves no useful purpose.

Such inferences cannot be justified. First, the cited data is drawn only from the first Navy Draft EIS's to be filed; thus the comments reflect the reviewing agencies' inexperience with NEPA. More recent evidence indicates that comments are increasingly substantive and useful.⁶⁴

Secondly, the fact that no major changes in projects were adopted by the Navy in response to comments may reflect an agency "bias" in favor of previously made decisions.⁶⁵ Such agency bias is practically immune from legal attack, so long as it is not clearly excessive: "The test of compliance with Sec. 102 [of NEPA] is one of good faith objectivity rather than subjective impartiality."⁶⁶

Third, the EIS filing process has many values in addition to solicitation of substantive comments. Among other functions, the commenting procedure allows the public affected by agency actions to express opinions and allows the agency to gauge public opposition.⁶⁷ Nonetheless, given the Navy's desire for concrete results from its environmental program, the Navy's early experience with filed statements doubtlessly discouraged later filing of impact statements in close cases.

C. Practical and Legal Reasons for Negative Declarations in Borderline Cases

1. The Economic Advantages of Negative Threshold Decisions

The foregoing considerations apparently have convinced the Navy officials who make NEPA threshold decisions that the filing process is unnecessary for environmental protection. Basic economics must then preclude filing a CEIS on a "borderline" case for which a formal impact statement is not clearly mandated.

The Navy's leaders, like all federal officials, tend to regard their activities as perpetually under-funded. The Navy's environmental protection program functions on an especially austere budget, competing in the budget preparation process against new weapons systems, personnel salaries, maintenance costs and other favorites of Congress and the executive authorities.⁶⁸

The claimant commands which sponsor specific Navy actions must finance all basic procedures of NEPA compliance. These commands must divert scarce funds from their underlying projects to pay for Candidate EIS's and whatever further steps are required by OP-45.⁶⁹ Put simply, the Navy has no spare money to spend on "unnecessary" impact statements.

In many ways the Navy's present internal NEPA system is far more economical than a system which would file more impact statements would be. For example, additional costs are directly incurred to file a Candidate EIS and develop a Final EIS through the procedures prescribed by the CEQ. The simple adaptation of a Candidate EIS into a Draft EIS presents some expenses for editing, printing, and adding maps, enclosures and some further information.⁷⁰ Further costs are incurred during the elaborate commenting procedures to develop a Final EIS, since the agency must respond to comments and perfect the final impact statements.⁷¹

More importantly, the EIS filing process often imposes costly delays on Navy projects, since many of the Navy's planning and funding cycles have not been meshed effectively with NEPA.⁷² Even though NEPA theoretically permits a "short commenting period" of thirty to forty-five days,⁷³ the Navy has been unable to use this device. To the contrary, Navy projects are often [5 ELR 50056] delayed more than 120 days from the filing of a Draft EIS with the CEQ to the time work is begun on a project.⁷⁴

These delays are immensely expensive during a period of rapid inflation such as the present. For example, costs for Navy construction projects now increase at a monthly rate of 1.3 percent.⁷⁵ Since Congress appropriates no extra funds to compensate for inflation and delay, these added expenses must be diverted from the basic project.⁷⁶

The delays of the commenting period can also disrupt Navy operations and schedules related to the proposed project. For example, new construction projects may be needed by a certain date to house naval personnel when the naval activity in which they serve is relocated to a distant installation. Thus both military and personal plans can be disrupted by the delay in construction which EIS filing often causes.⁷⁷

Most of the costs of EIS preparation and its attendant delays must be borne by the claimant command. This fact suggests a related reason for the CEIS Review Panel to file few impact statements with the CEQ. Although most Candidate EIS's are prepared mandatorily pursuant to the OP-45 Instruction, some CEIS's are submitted voluntarily by claimant commands. If the added expenses of filing a formal impact statement seemed likely to follow the submission of most CEIS's to the Review Panel, the flow of voluntary CEIS's would probably be reduced greatly. The Navy's internalized program would suffer accordingly.⁷⁸

2. The "Legal" Advantages of Negative Threshold Decisions

To some degree the Navy's environmental authorities are doubtless aware of the legal implications of filing impact statements. Many celebrated court decisions have compounded the burdens of filing since these cases set exacting standards of agency performance in preparing and using NEPA impact statements.

Thus, when an impact statement is filed, at least three areas of an agency's NEPA compliance are exposed to criticism and court challenges: whether the statement's disclosure of all possible environmental impacts has been complete, whether the agency has fairly considered all these impacts and all alternatives to the proposed agency action, and whether the agency's decision on the merits of the project was consistent with NEPA's substantive commands.⁷⁹ Each of these NEPA obligations is judicially tested by a "strict compliance" standard.⁸⁰

Opponents of proposed projects realize that agencies often fail to satisfy these tests for EIS sufficiency. Myriads of legitimate (and some "sham") environmental lawsuits have resulted. Even though a Navy CEIS may be designed to meet such exacting standards, one can understand why the Navy's administrators for NEPA would prefer not to subject a Candidate EIS to such scrutiny in a "borderline case."

The judicial remedy for an agency's failure to fulfill the high standards of procedure and content set for a Final EIS is dreadful indeed for a mission-oriented agency: a preliminary injunction issues against the project until full compliance is demonstrated.⁸¹ Many courts do not even require plaintiffs in NEPA suits to show irreparable harm or a preponderance of equities before the agency's action is enjoined: strict agency compliance with NEPA is enforced.⁸²

Another potential hazard of filing is that the agency may be bound (practically or legally) by commitments made in the EIS process to reduce environmental impacts, or by other plans or statements exposed in the impact statement. Although no court appears to have made a holding on this point to date, strong dicta in a number of cases suggest that an agency may be legally obligated by positions taken in the EIS process.⁸³

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3. The Favorable Prospects of Navy Negative Declarations in Court Contests

a. The Intrinsically Strong Legal Posture of Navy Negative Declarations.

The essential strength of the Navy's position relative to potential critics of its NEPA program permits the Navy to refuse to file a Candidate EIS with relative impunity. Until the present time, at least, potential critics and plaintiffs have been largely uninformed of Navy projects and insufficiently organized, motivated or funded to institute many lawsuits to compel filing. Even though the Navy's Review Panel has declined to file 139 Candidate EIS's, only eight of these "borderline" negative declarations have been attacked in court to date.⁸⁴

The Navy has been especially free from criticism in southern states, where the numerous Navy activities are generally popular for economic and patriotic reasons and where environmental activism is uncommon.⁸⁵ Furthermore, throughout the United States the potential critics of Navy actions have rarely gained the technical information needed to understand or challenge the Navy's more unique impacts on the environment.⁸⁶ Thus serious court challenges to Navy negative declarations have been few.

For the rare instance where a lawsuit is brought to compel filing of an impact statement, the Navy can rely on the considerable resources of the U.S. Department of Justice and the Navy's own Judge Advocate General's Corps to present a strong defense. In addition to the familiar battery of NEPA litigation defenses, the Navy's lawyers can interpose the potent doctrine of "national security" and the restrictions on classified documentary evidense. These defenses have impressed courts in a number of NEPA cases.

In State Committee to Stop Sanguine v. Laird,⁸⁷ plaintiffs demanded a filed impact statement on a planned Navy low-frequency communication system to serve nuclear submarines. The opinion of the district court upheld the Navy's refusal to file because the plaintiffs had failed to allege Navy non-compliance with § 102(2)(F) of NEPA. The court's emphasis on the international aspects of the communication system as part of national defense indicates that the court considered the national security and foreign relations aspects of the Navy's project to outweigh NEPA considerations. One may infer that the court avoided a trial on the merits for these reasons.

Other courts also cited national security as significant reasons for refusing to require Navy filing of impact statements in Smith v. Schlesinger,⁸⁸ and in Citizens for Reid State Park v. Laird.⁸⁹ Both cases are discussed below.

The national security and classified documents defenses were accepted as conclusive by the Tenth Circuit in McQueary v. Laird.⁹⁰ Because that court was satisfied by the mere assertion of these defenses, the Navy frequently defends with the national security doctrine in NEPA cases.⁹¹

"National Security" can be related to the "political question" jurisdictional defense for major Navy programs, which may be significant in international relations. For example, in Concerned About Trident et al. v. Schlesinger⁹² the challenged Navy program is a complete weapons system which may influence the Strategic Arms Limitations Talks ("SALT").

Similarly, the doctrine of separation of powers can be interposed as a Navy defense to preclude judicial interference with the larger Navy activities. Because major Navy programs are specifically mandated by the executive and legislative branches for national defense, courts may refuse to take jurisdiction of challenges to these NEPA negative declarations.⁹³

The Navy has thus concluded that its basically strong legal position usually will overcome legal challenges to its negative threshold decisions for "borderline" Navy actions.

b. The Court Cases Upholding Navy Negative Declarations.

The Navy's disinclination to file impact statements [5 ELR 50058] for close cases is supported by more than a general assessment of its strong legal position. All but one of the eight court challenges to Navy negative threshold decisions have failed.

In each of the Navy's major NEPA victories examined herein, the negative declaration at issue could fairly be considered a "gray area" case for which filing might arguably have been appropriate. Yet the Navy's "internalized" NEPA system persuaded each court that the contested threshold decision was made in compliance with the Act.

The best known case which approvingly cites the Navy's NEPA program is Citizens for Reid State Park v. Laird.⁹⁴ In that case citizens of Maine sought the filing of an impact statement for an amphibious training maneuver in a state park. After citing the many precautions taken by the Navy to protect the park, the court upheld the Navy's determination that the exercise would not be a "major action significantly affecting the quality of the human environment" ("MASAQHE").

Much language in the opinion clearly demonstrates that the Judge was persuaded by the Navy's documented, internal efforts to study and mitigate adverse environmental impacts:

The record conclusively establishes … that from the inception of the planning phase of the operation … to date, the Coordinator of the Environmental Quality Program in the Office of the Commander-in-Chief, Atlantic Fleet, has been engrossed in a continuing assessment of the environmental consequences of the proposed action.⁹⁵

The Navy's detailed Candidate EIS swayed another court in San Diego Coastwatch v. Schlesinger et al.⁹⁶ In that case, local citizens challenged the Navy's refusal to file its CEIS on large-scale construction work at the Navy Electronics Laboratory Center in San Diego, California. The court held that the Navy had adequately evaluated the environmental impacts of its projects and had taken the necessary steps to mitigate them. The plaintiffs' request for a preliminary injunction was dismissed as unlikely to prevail on the merits.

In Smith v. Schlesinger⁹⁷ the plaintiffs sued to compel Navy filing of an EIS for the Shore Establishment Realignment Project. Many environmental impacts were alleged from attendant facility closings and personnel transfers in Long Beach and San Diego, California. Although the court's ruling found the plaintiffs guilty of laches,⁹⁸ much of the court's opinion cites the continuing assessment of environmental impacts which the Navy had conducted internally.

The Navy's refusal to file an impact statement for the Bailey Hill Naval Housing project was sustained in Town of Groton v. Laird.⁹⁹ Again the court was satisfied by the Navy's detailed environmental record of the project's potential impacts.

The court also seemed to support the Navy's reading ofNEPA's basic purpose:

… it is apparent that [The Navy's] decision was guided by the strictures of the Act. The purpose of NEPA is to insure that all federal agencies inform every stage of their decision-making process with consideration of environmental factors, broadly understood. The Navy's process of decision which was followed in this case is fairly designed to comply with this purpose. Its assessment tracks sections 102(2)(C) in its discussion of environmental effects … [T]he 'action forcing procedures' embodied in the statute … have been honored here.¹⁰⁰

The court further cited the Navy's informal discussions with local governmental officials and citizens groups as evidence of compliance with NEPA. Thus a formal impact statement was held to be unnecessary.

The foregoing court victories undoubtedly have reinforced the Navy's reluctance to file impact statements for its borderline projects.

IV. A DIAGNOSTIC DEBACLE FOR THE NAVY'S NEPA SYSTEM: THE FT. STORY CASE

Only one of the Navy's many negative declarations has been overturned in court: that case was Ft. Story - its Future et. al. v. Schlesinger.¹⁰¹ Careful study of this case reveals characteristic features of the Navy's NEPA program and exposes serious weaknesses in the Navy's present system for making NEPA threshold decisions.

A. On Planning a Housing Project Despite NEPA

Ft. Story is a 1,400-acre Army installation at the tip of Cape Henry in the city of Virginia Beach, Virginia. The fort is situated immediately east of Seashore State Park, and for some time certain Virginia Beach residents have hoped to add much of the fort's undeveloped land to the state or municipal park system.¹⁰² Their goals seemed attainable because Ft. Story is now little used by the [5 ELR 50059] Army, which was instructed recently to "excess" unneeded land at the fort.¹⁰³

In early 1973 the Atlantic Engineering Field Division (the "EFD") of the Naval Facilities Engineering Command (NAVFAC) developed plans to build a Navy Family Housing Project of 600 units at Ft. Story at a cost of approximately $15 million.¹⁰⁴ The project site was on eighty-one acres of wooded, stabilized sand dunes within Ft. Story: land which some townspeople wanted for Seashore State Park.¹⁰⁵

The FED acted at Ft. Story under orders from the Commandant of the Norfolk Naval Base, which was the claimant or sponsoring command for this construction venture. The Norfolk command sorely needed quarters for an influx of enlisted personnel recently transferred to Norfolk from phased-out Navy installations elsewhere on the Atlantic coast.¹⁰⁶

The EFD began its site-selection process in 1971 with forty possible locations for the housing project. Following the Navy's normal practice, the EFD made no assessment of environmental factors for any of these sites.¹⁰⁷

By September of 1972 a variety of economic and political considerations had narrowed the forty original site alternatives to two: a Ft. Story site and a privately-owned tract in nearby Chesapeake, Virginia.¹⁰⁸ This latter site was abandoned in December of 1972, when opposition from the Chesapeake citizens and city government became intense. As often happens, the Chesapeake interests preferred private development of that site to augment the city's tax base.¹⁰⁹

Thus, in early 1973 the Navy firmly decided to build its housing project on some site within Ft. Story. At this point no environmental study had been made for any alternative site and no formal or documented study had been made for any Ft. Story site.

The Navy's informal system for environmental protection had been functioning, nevertheless. In the spring of 1972 the EFD had examined one specific building site at Ft. Story which the Army had suggested. The EFD's environmental expert at once declared it unsuitable.¹¹⁰ Construction there undoubtedly would have damaged nearby Seashore State Park and would have destroyed many rare Maritime Live Oak trees indigenous to Cape Henry.¹¹¹

After the Chesapeake location was abandoned, however, the Navy's EFD selected another tract at Ft. Story. This site contained fewer Maritime Live Oaks and was further from Seashore State Park than the first site had been.

Nonetheless, the Ft. Story site finally selected by the EFD for its housing project obviously presented serious environmental problems. Much of the tract consisted of sand dunes, subjected to severe erosion if the light vegetative cover were disturbed. Lying west of these dunes was Seashore State Park, which would probably be damaged unless many elaborate safeguards were enforced.¹¹²

Despite these and other environmental problems, the command sponsoring the housing development was now firmly committed to its Ft. Story building site. Because the funds for the project were appropriated only for Fiscal Year 1973, the claimant command expected to lose those funds permanently if construction contracts were not signed quite soon.¹¹³

As often happens for such projects, time had run out for the claimant command to choose a site. Construction had to proceed despite environmental difficulties or the $15 million funding would be lost.¹¹⁴

B. The NEPA Threshold Determination for the Ft. Story Project

Because this large housing development required a "mandatory CEIS," the sponsor command hired a Philadelphia consulting firm to prepare it.¹¹⁵ However, the command refused to provide the time or funds for the detailed studies which the CEIS contractor wanted to conduct. The contractor insisted that a proper assessment of environmental impacts would require ninety-eight man-days and $24,904;¹¹⁶ he was granted only forty-eight man-days and $9,955 by the claimant command.¹¹⁷

Despite continued protests from the contractor that an adequate study could not be prepared with the alotted time and resources, the claimant command directed him to proceed.¹¹⁸ The contractor hurriedly prepared a [5 ELR 50060] series of drafts during September of 1973 and revised these drafts under advice from the claimant command.¹¹⁹

Still expressing reservations on the adequacy of his study, the contractor submitted his final draft of the Candidate EIS to the sponsor command when his time expired.¹²⁰ The contractor was never consulted thereafter to provide further details or explanations for ambiguities.¹²¹

The claimant command edited the draft CEIS to its liking and forwarded it to the CNO's Review Panel in Washington. The command probably hoped for a negative NEPA declaration to avoid the delays of filing an impact statement. After all, the schedule for awarding contracts in Fiscal Year 1973 was already tight.

On November 9, 1973, the CNO's Review Panel received the claimant command's CEIS, and on November 17 the Review Panel met to consider its threshold decision for the Ft. Story project.¹²² Following their normal practice, the Panel considered only that environmental data which was provided to them by the claimant command's CEIS¹²³ No one at the Panel meeting had been directly involved in planning or designing the project, and the Panel made no attempt to summon additional information.¹²⁴

Only one person at the meeting had any prior dealing with the project. This spokesman for the claimant command was an architect at NAVFAC's Washington headquarters who had limited knowledge of the Ft. Story site.¹²⁵

After a lengthy discussion, the Review Panel's majority voted not to file the Candidate EIS as a formal impact statement with the CEQ.¹²⁶ Accounts of the Panel's discussions establish clearly that the Panel recognized the Ft. Story project as a "borderline" case for which filing might be appropriate. But the Panel's majority followed their usual practice of declining to file, relying instead on the Navy's internal system to minimize environmental degradation of the project's site.¹²⁷

So far as the Review Panel could judge from the Candidate EIS, their negative declaration doubtlessly seemed reasonable. After all, the CEIS did anticipate and propose to mitigate several potential environmental problems associated with the chosen location. The Review Panel's negative declaration was expressly predicated upon enforcement of corresponding safeguards in the specifications for the project's construction contracts.¹²⁸

For example, the Review Panel wished to protect Seashore State Park and to leave undisturbed twenty-one acres of Maritime Live Oak forest on the site. So the Panel's specifications required the building contractor to use less land with row-type construction rather than the disconnected units which are standard for Navy Housing. The Panel also suggested that the construction contractors prevent damage to nearby marshes from storm water runoff and protect sand dune stability during construction.¹²⁹

The Panel's plan was accepted by the higher Navy authorities, all of whom affirmed that the Navy's duties under NEPA had been fulfilled.In fact, the Navy's environmental authorities regarded the Ft. Story project as a "showcase" for the Navy's internalized NEPA program. They believed that the Navy's system had again identified and "mitigated" environmental impacts without a filed impact statement.¹³⁰

Whether or not the Navy's negative declaration was proper, it did free the claimant command to proceed with construction. That command published its invitation for bids for the Ft. Story housing project on March 15, 1974.

Although the Virginia Beach public had never been informed by the claimant command of its plans for Ft. Story, the latent opposition had gained some information from unofficial sources.¹³¹ The environmentalists mobilized quickly to resist the Navy's plans through political and legal means. Their efforts soon generated widespread opposition to the Ft. Story project by many officials of Virginia Beach and an array of citizen groups and individuals.¹³²

On March 18, 1974, the Virginia Beach City Council adopted a resolution declaring themselves

unanimously opposed to … the construction of 600 units of housing by the United States Navy [at Fort Story] but are not opposed to the location of said housing at some other appropriate site and are willing to work with the United States Navy to locate a suitable site ….¹³³

Because the sponsoring Navy command expressed no [5 ELR 50061] interest in revising its construction plans, the citizenopponents of the project organized as "Ft. Story - Its Future, Inc." and prepared for litigation. On June 6, 1974, this group filed suit in the Norfolk Federal District Court to enjoin further Navy actions until a full environmental impact statement was filed for the Ft. Story housing development.¹³⁴

C. A Borderline Negative Declaration Stands Trial

Throughout the Ft. Story trial, Judge Walter Hoffman expressed his dislike for NEPA and its strangling "red tape." The judge also disparaged the environmentalist plaintiffs as "bird watchers … watching the warblers." These malcontents tended to delay the "progress" exemplified by the contested housing development, in the judge's view.¹³⁵

Significantly, Judge Hoffman's opinion states that he conceded the plaintiffs' standing to sue only because a recent Supreme Court decision required him to so rule.¹³⁶ Yet despite the Judge's predisposition to favor the Navy, the facts revealed at trial did not permit the Navy's negative declaration to stand.

During the trial the plaintiffs introduced a vast amount of evidence to discredit the Candidate EIS considered by the Review Panel. Since that document comprised the entire "environmental record" upon which the Panel's negative declaration rested, the Navy's threshold decision was compromised. The plaintiffs' evidence also exposed troublesome defects in the procedures which had developed the Navy's environmental record. As a result of the overwhelming weight of evidence, Judge Hoffman could only overturn the Navy's negative declaration.

One telling blow to the Navy's CEIS was dealt by the EPA in an unconventional manner. As is true for all Navy negative declarations, the Review Panel's refusal to file the Ft. Story CEIS had precluded formal review of the project by the EPA pursuant to § 309 of the Clean Air Act.¹³⁷ During the Ft. Story trial, however, the EPA's Region III Office counteracted the Navy's failure to submit an impact statement on its troubled housing project.

The plaintiffs' attorney had sent a copy of the Navy's CEIS to EPA's Region III Office and asked for an evaluation by the EPA. The EPA's office replied in a letter sent to both plaintiff's attorney and the Navy's OP-45 office.

The EPA's reply condemned the Ft. Story CEIS for inadequate consideration of four major areas of NEPA compliance.For example, the EPA stated that alternatives to the challenged site should have received NEPA evaluations. The EPA also criticized the CEIS for failing to consider air and noise pollution from increased traffic flow. The plaintiffs successfully introduced this letter as evidence to discredit the CEIS, and Judge Hoffman was apparently impressed by the EPA's criticisms.¹³⁸

The purported reliability of the Navy's CEIS was further attacked by a series of expert witnesses called by the plaintiffs. Most of these authorities had been listed in the CEIS as the leading specialists on the relevant environmental impacts of the project.¹³⁹ They included university professors, a United States soil conservation official, and both appointed and elected leaders of the Virginia Beach government. These experts specified many errors and omissions of the CEIS, alleging that these flaws invalidated the entire document.

For example, professors of biology and environmental science asserted that the CEIS provided insufficient or no discussion on many problems at the building site. Neglected impacts included excessive destruction of Maritime Live Oaks,¹⁴⁰ displacement of wildlife,¹⁴¹ and inevitable loss of ground cover leading to dune erosion.¹⁴²

The professors claimed that the CEIS was even less adequate in identifying impacts on Seashore State Park. These adverse effects included pollution from storm water runoffs,¹⁴³ "people pressures,"¹⁴⁴ increased soil erosion¹⁴⁵ and an influx of animals driven from the construction site.¹⁴⁶

Even where potential problems are identified in the [5 ELR 50062] Candidate EIS, the plaintiffs' witnesses showed that the CEIS did not discuss the specific safeguards required to deal with these problems.¹⁴⁷ The plaintiffs' experts asserted that this defect of the CEIS was not corrected by the Review Panel: the Panel had proposed protective measures in hortatory generalities. The plaintiffs claimed that the Review Panel could not have proposed specific safeguards, since the Panel had evaluated the CEIS in vacuo, without access to building plans or other needed data.¹⁴⁸

The plaintiffs insisted that this failing was crucial, since the Navy planned to commit all construction responsibilities to the project's building contractors. These contractors had already "figured their bids:" they might not fully implement the expensive environmental safeguards proposed by the Review Panel.¹⁴⁹

The trial's transcript reveals that many of the oversights and errors of the CEIS can be attributed to the limited amounts of time and money granted to the CEIS contractor. Other flaws reflect inherent difficulties of evaluating environmental impacts. The CEIS contractor might be blamed for careless mistakes and negligent omissions: these are not uncommon in contracted impact statements. Still other indictments of the CEIS were judgmental in nature, concerning matters on which experts might disagree.¹⁵⁰

However, the major thrust of the plaintiffs' case attributed omissions and errors of the CEIS to questionable conduct of the claimant command. Plaintiffs asserted that the claimant command had "doctored" the environmental record to win a negative declaration from the CEIS Review Panel in Washington.

The plaintiffs' experts first demonstrated that the CEIS expressed extremely "optimistic" views on key environmental problems, including traffic impacts¹⁵¹ and inadequate sewer and water facilities.¹⁵² These projections were clearly wrong, though founded on some evidence.

In addition, the plaintiffs contended that the claimant command had encouraged a "pro-project bias" on the part of the CEIS contractor. For example, during September of 1973 the contractor had prepared a series of draft CEIS's for the sponsor-command. The command examined each draft and asked the contractor to revise his conclusions and emphases regarding several environmental impacts. The plaintiffs' evidence indicated that these revisions all tended to de-emphasize environmental problems reported in the CEIS.¹⁵³

Next, the plaintiffs established that the claimant command had realized that the CEIS contractor had included mistakes in the CEIS which grossly understated certain environmental impacts. Yet the command did nothing to correct these errors in the CEIS or to inform the Review Panel that the CEIS was inaccurate.

The judge's comments show much concern with the following example. The CEIS contractor stated in his final draft that only 665 new students would enter the Virginia Beach schools from the housing project. At trial, the school system's official spokesman established the "true" figure at 1,980 new students. The claimant command had learned before the Review Panel voted on its CEIS that the CEIS's figure was quite low. Nonetheless, the claimant command did nothing to change the CEIS or to inform the Review Panel of the mistakes.¹⁵⁴

The plaintiffs' most damaging contention was that the sponsor-command had improperly "edited" the contractor's draft of the CEIS. The effect, claimed the plaintiffs, was the "deletion" from the final CEIS of important data needed by the Review Panel to properly consider their threshold decision. For example, the CEIS which the Review Panel declined to file had said nothing of a potential "environmental controversy" concerning the Navy's plans. The contractor's draft copy of the CEIS had contained some evidence of local opposition to the project and of concern about the project's impact on the fragile ecosystem of Seashore State Park. The plaintiffs showed that this evidence was "deleted" by the claimant command before its "edited" CEIS was sent to the Review Panel.¹⁵⁵

Another "deletion" revealed by the plaintiffs involved an important "alternative" for the architectural design of the project. The contractor's draft CEIS had proposed a high-rise apartment structure to reduce land use, Maritime Live Oak destruction, dune erosion, and other negative impacts. The claimant command, which favored row-type housing, omitted this alternative from its final CEIS. Thus, the high-rise alternative was not considered by the CEIS Review Panel for the Ft. Story [5 ELR 50063] development.¹⁵⁶

Whether or not the plaintiffs' implications of deception by the claimant command were reasonable, they apparently persuaded Judge Hoffman. Clearly disturbed by the plaintiff's mass of evidence, the court ruled that

[T]he Navy Review Panel was not possessed of all facts, findings and conclusions which were known or submitted to the Navy before the … CEIS was forwarded to the Navy Review Panel.¹⁵⁷

The judge's opinion therefore relied on language from Rucker v. Willis¹⁵⁸ to conclude that

When seemingly important facts and views of experts are deleted from the CEIS, it tends to destroy the authorities which support the view that adequate consideration by the agency is all that is required.¹⁵⁹ (Emphasis provided by the court).

Even though Judge Hoffman expressed his fidelity to the Fourth Circuit's "arbitrary and capricious" standard to review negative NEPA threshold determinations, he held that this test does not apply "where shortcuts have been taken by the agency."¹⁶⁰ Convinced that the Navy's threshold decision was improper, the court ruled for the plaintiffs.

Judge Hoffman therefore issued a preliminary injunction against the awarding of construction contracts until the Navy filed an impact statement with the CEQ. Alternatively, the Navy might reissue its negative declaration if it would present the court with more adequate proof that filing was not required under NEPA.¹⁶¹

Despite some unique aspects of the Ft. Story trial, that case probably was not an aberration. To the contrary, the Ft. Story case highlights basic problems in the Navy's system of threshold decision making. Unless the weaknesses inherent in the present structure are corrected, future "Ft. Story cases" seem inevitable.

V. ANALYSIS AND PROPOSALS TO IMPROVE NAVY THRESHOLD DECISIONS

The foregoing discussion suggested serious problems in the Navy's system for NEPA threshold decisions and the functioning of that system to date. The failings of the Navy's generally strong environmental program can be remedied with a variety of solutions, adopted separately or in combination. Recommended improvements will be proposed and analyzed throughout the remainder of this study.

A. Disentangling the Navy Family Housing Imbroglio

As the Ft. Story case indicates, the Navy's system to implement NEPA is especially troubled in the Navy Family Housing Program. These government-owned residential complexes are often built on land purchased by the Navy outside existing naval installations. They therefore present the many environmental impacts of any housing development: increased local population density, secondary development effects, added burdens on all municipal services, crowding of transportation and school systems, etc.¹⁶²

In addition, a Navy Family Housing Project often engenders an "environmental controversy" for special reasons. First, a Family Housing Project is usually large. The average project has between 200 and 300 units of three-to-five bedroom dwellings, and some projects contain more than 900 units. Furthermore, these projects are often completed in a relatively short development time rather than over an extended period of subdivision construction. Thus environmental impacts are large and immediate.¹⁶³

Second, the local real estate tax base is reduced if privately-owned land is acquired for the project.¹⁶⁴ Third, Family Housing Projects proposed for many suburban neighborhoods are opposed by local residents who object to the socio-economic status of Navy enlisted families.¹⁶⁵

Finally, impact upon local school systems is great. This may eventually be offset in part by Federal Impact Assistance, but such aid is not guaranteed in advance of project construction. Federal funds which are allocated for schools arrive considerably after the impact occurs, do not contribute to new capital outlays, and often cover a fraction of added school costs.¹⁶⁶

These environmental perplexities inherent in Navy Family Housing are exacerbated by another problem. The Navy has not yet integrated the requirements of NEPA with the pre-NEPA system which selects sites for and develops housing projects.

Because the "Family Housing Planning Cycle" permits inadequate time (and because the claimant commands usually provide insufficient funds), no serious [5 ELR 50064] environmental assessment is conducted for a potential site before the Engineering Field Division has made the decision to build on that site.¹⁶⁷ When the Candidate EIS is prepared, the "alternatives" considered are usually limited to going forward with the projecton that site (perhaps with minor changes) or "no action" (i.e., abandon the project altogether).¹⁶⁸ The latter alternative is not considered seriously in the Candidate EIS: the command preparing the CEIS has decided already that a Family Housing Project will be constructed.¹⁶⁹

Accordingly, no alternative site for the project is considered for comparative environmental advantages. Instead, one candidate impact statement is made for the one chosen location, often converting the CEIS into a post hoc justification for a firmly made decision.¹⁷⁰ This failure to assess alternative sites violates the mandates of NEPA, which require the Navy to consider alternatives to proposed actions on the basis of environmental considerations.¹⁷¹

After a building site has been selected, the Navy Family Housing Planning Cycle allows insufficient time for the preparation of a satisfactory CEIS. A maximum of two-and-one-half months exists from the time a site is selected until the Candidate EIS for that site is required by the CEIS Review Panel.¹⁷² This time shortage, compounded by the fact that a single Engineering Field Division may have to prepare several CEIS's during that period, often results in hastily prepared and incomplete candidate statements.¹⁷³

Similarly, the present cycles give the Navy's CEIS Review Panel insufficient time to properly review the candidate statements which are submitted on proposed housing sites.¹⁷⁴ The result is that unreviewed or incomplete CEIS's are often the only NEPA statements available to the decision makers in the Office of Management and Budget (OMB) and Congress when they consider Navy Housing Projects. Even when Congress gives its final authorizations, the Navy's Review Panel often has not yet decided which candidate statements will be filed with the CEQ as draft impact statements. Rarely is a final impact statement (FEIS) available to Congress when it votes its authorizations for Navy housing projects.

This failure to inform congressional decision makers with completed impact statements violates NEPA. The CEQ Guidelines provide that

… the final test of the environmental statement and comments thereon should be available to Congress and to the public for consideration in connection with the proposed legislation….¹⁷⁵

To provide at least a partial solution for the problems discussed above, the Navy should require claimant commands to prepare a number of candidate statements for alternative sites before one site is expressly favored. These alternative CEIS's could then be considered by the sponsoring command before it selects the one location which it might propose to higher authorities.

Similarly, the set of alternative candidate or filed impact statements could be considered by the Navy's CEIS Review Panel, by decision makers in the Defense Department, and by OMB and Congress. These authorities could then determine the ultimate location and chracteristics of each housing development after full consideration of environmental factors.

B. Establishing a Dialogue Between the Claimant Command and Its Surrounding Community

Many of the court challenges to agency negative threshold determinations (and many other NEPA entanglements as well) can be explained by an agency's failure to communicate adequately with the local community affected by proposed actions. The Navy's failure to provide local people with timely and complete information on its projects and to obtain their views and objections has caused many practical as well as legal problems.

1. Origins of the Community Relations Problem: the Non-Disclosure Policy.

One reason for the Navy's frequently inadequate interation with local communities on proposed Navy actions is the prerogative of each claimant command to [5 ELR 50065] omit this dialogue if the command so desires. Because there has been no specific directive from OP-45 requiring claimant commands to obtain and document community involvement in preparing candidate statements, these commands rarely spend scarce time and money to do so. To the contrary, some commands attempt to conceal planned actions from the public, hoping to avoid public opposition thereby.¹⁷⁶

The problem is Navy-wide rather than localized, however, since in large part this failure originated in an effective Navy practice of "non-disclosure.¹⁷⁷ This Navy rule reflected the traditional doctrine that the budget proposals and other plans of federal executive agencies were privileged communications. These could be made public only with Presidential approval, which was rarely sought or obtained.¹⁷⁸

The most serious conflicts between NEPA and Navy non-disclosure arise in the military construction and family housing programs. These two programs often engender environmental controversies and impacts, so NEPA's requirements are vital to both.Despite the contrary dictates of NEPA, the Navy has consistently refused to disclose significant data on these construction programs before Congress has officially authorized each specific project.¹⁷⁹

The official justifications for Navy non-disclosure of proposed construction projects have included the following: (1) fear of increasing the costs of land to be purchased;¹⁸⁰ (2) fear of conflicts of interest and improper real estate speculation; (3) "Congressional Courtesy," whereby the local congressman announces construction projects in his district; and (4) the desire to avoid unnecessary controversies on proposals which might later be dropped or greatly altered before Congressional approval.¹⁸¹

2. The Troublesome Effects of Navy Non-Disclosure

The non-disclosure policy is surely one reason why the Navy has favored in-house preparation of candidate statements over the more open EIS-filing system. Even so, non-disclosure not only has restricted the proper development of candidate statements, but has led to the omission of significant information from formal impact statements where these have been filed.

Non-disclosure has had these unfortunate effects in several ways. First, non-disclosure has prevented the open dialogue between representatives of the Navy and those of local governmental and planning agencies from which the Navy must obtain data and cooperation to resolve environmental problems. Because the Navy has followed non-disclosure and refused to use the publicized EIS commenting system, the Navy has been forced to develop its CEIS's through informal, confidential meetings with local governmental officials and planning groups. Although these exchanges have some value, they cannot substitute fully for the open and recognized NEPA commenting process. For example, some local officeholders and groups refuse to comment informally, realizing that they could be misquoted in an unpublished CEIS.¹⁸²

A second problem is imposed on Candidate EIS preparation by these related Navy policiesof non-disclosure and off-the-record informality. The Navy's agents preparing candidate statements often contact only working level personnel in local governments, since this approach avoids publicity and retains flexibility for the Navy's plans.

However, because high-level policymakers are not consulted, they may learn nothing about Navy plans until serious local opposition has developed. At that time, elected officials may resent the Navy's failure to consult them, and they may be forced by political pressures to oppose the Navy's plans.¹⁸³ Similarly, the Navy's reliance upon appointed local functionaries in [5 ELR 50066] CEIS compilation often prevents reporting of a potential controversy in the candidate statement. Public opposition to a project may be revealed by elected officials but rarely by minor appointed bureaucrats.¹⁸⁴

A third major problem derived from Navy non-disclosure policy is that the Navy fails to conduct a dialogue with the local community affected by a proposed action. Since non-disclosure prevents early and accurate reporting of Navy plans, the public often learns of a project through rumors and distorted speculations. Opposition and controersy are obviously inspired, perhaps unnecessarily.¹⁸⁵ Similarly, if the public first learns of the project after congressional approval, resentment is inspired by the fait accompli presented without local advice or approval and without prior assurances that adverse impacts will be minimized.¹⁸⁶

The public opposition caused by non-disclosure disrupts Navy functioning, because the Navy's administrators at the level of the Chief of Naval Operations and above are sensitivie to political pressures and public relations. Thus the generation of opposition by local governments and citizens sometimes forces the abandonment of legitimate Navy projects.

For example, public and political pressure forced the Navy to emasculate "Project Sanguine" in Wisconsin, losing much money and time in the process. Public opposition stymied the project even though the Navy's negative NEPA declaration had been sustained in court.¹⁸⁷ Similarly, two Navy Family Housing Projects near Chicago were abandoned after much expensive planning because of local opposition and resulting political pressures.¹⁸⁸

3. An Incomplete Solution for the Non-Disclosure Problems.

A partial solution to the "open communication" problems discussed above would have the Navy continue its present practices with one major change. Navy representatives would reveal more information about proposed projects but would withhold two facts: the total number of dollars to be spent and the fiscal year in which the project is to be budgeted.¹⁸⁹

The rationale for this modest change appears to be preservation of "Congressional Courtesy." Congressmen could continue to announce the precise time when the project would be budgeted and later proclaim its approval.¹⁹⁰ In particular cases where disclosure of one or both of the two remaining "secrets" might be necessary, these two facts hardly seem sacrosanct and might be released as well.¹⁹¹

This improvement over traditional non-disclosure would doubtlessly permit better technical appraisal of environmental problems on Navy CEIS's. However, the basic problems of Navy interaction with local communities will be solved only by more comprehensive reforms discussed hereinafter.

C. Documenting a Full Environmental Record: the Hanly II Requirements

1. The Necessity for Navy Application of the Hanly II Rules

The most thoroughgoing remedy for the problems discussed above would have the Navy file impact statements for all borderline cases. The practical and legal compulsions for this change are discussed hereinafter.

Obviously, however, economic factors and bureaucratic inertia may cause the Navy to retain the essentials of its present policy. Thus the Navy may continue to file few "gray area" candidate statements, relying on its internal program to satisfy NEPA's requirements.

Even assuming that the Navy will change its interpretation of NEPA minimally, the Navy's system for threshold decisions must be reformed substantially to comply with Hanly v. Kleindienst¹⁹² (Hanly II) and related cases. Adoption of these procedural requisites will resolve many of the Navy's problems with NEPA.

As previously explained, the current Navy practice for making threshold determinations permits each claimant command to develop the environmental record for a proposed action in any degree or manner it considers necessary. The command need only follow the general formula for a CEIS as a guide. This lax arrangement does not satisfy the Hanly cases and their [5 ELR 50067] progeny, which establish formal procedures and standards for threshold environmental records.

The Hanly II rules seem appropriate for precisely that approach to NEPA followed by the Navy. Judge Mansfield's procedural requirements are necessary precisely because some agencies will rarely file impact statements for close cases.

The Hanly II procedures have been adopted by increasing numbers of leading courts. The Second and Seventh Circuits now seem firmly committed to the Hanly II threshold requirements, and the D.C. District Court also appeared to follow the Hanly II rules in First National Bank of Homestead v. Watson.¹⁹³ Since the Navy's negative declarations are subject to suit in these jurisdictions, the Navy must fulfill the Hanly II requirements for its future threshold determinations.

2. The General Hanly II Requirement: A Complete Environmental Record

The majority opinion of Hanly II requires that all "major federal actions," even those which would not necessarily have a "significant effect on the quality of the human environment," must be undertaken in compliance with § 102(2)(A), (B) and (D) of NEPA. Failure of an agency to comply with these sections would invalidate the federal action, since the agency would have acted "without observance of procedure required by law."¹⁹⁴ Ths application of NEPA is derived from the United States Supreme Court case of Citizens to Preserve Overton Park v. Volpe,¹⁹⁵ as the Second Circuit interprets that case.

To implement § 102(2)(B) of NEPA, the Hanly II majority requires federal agencies making NEPA threshold determinations "to review in a general fashion the same factors that would be studied in depth for preparation of a detailed environmental impact statement…."¹⁹⁶ This requires each agency to "affirmatively develop a reviewable environmental record …" or prepare a "mini-impact statement" before a preliminary or threshold determination of significance is made."¹⁹⁷

3. The Navy Actions Governed by the Hanly II Rules

A full environmental record is unquestionably required for all the Navy "gray area" projects now covered by Candidate EIS's. Hanly II and those cases which have followed require this documentation of all environmental factors for every project which might "arguably" affect the environment.¹⁹⁸ Because Navy candidate impact statements are designed to assess major Navy actions which could cause significant environmental impacts, each action covered by a CEIS should require the Hanly II procedures.¹⁹⁹

Thus, in First National Bank of Chicago v. Richardson,²⁰⁰ the Seventh Circuit reviewed a negative declaration on a Federal parking garage and detention center. These facilities clearly presented far fewer environmental problems than did the similar buildings considered in Hanly II.²⁰¹ Yet even though no adverse impacts were foreseen, the court required the defendant agency "to affirmatively develop a reviewable environmental record" consisting of a 142-page supplement to its original environmental assessment. This document, plus many exhibits and much live testimony, were demanded from the agency to prove conclusively the lack of adverse impacts.

4. The Extent of the Environmental Record Required by Hanly II

No legal authority has attempted to prescribe the precise form or extent of the environmental record required for each negative declaration.²⁰² Each agency has some discretion to establish and apply procedures to assure a fair and informed preliminary decision.²⁰³

The form and extent of the mini-impact statement will necessarily vary with the potential environmental impact of the proposed action. Thus in Hanly I the Second Circuit accepted a "terse" one-page memorandum as an adequate environmental record. This memo supported the agency's finding that no formal impact statement was required for a proposed nine-story office building. The memorandum adequately accounted for all relevant environmental factors, since the office building was clearly compatible with the existing character of the neighborhood and would effect little "absolute" change in noise, traffic, air quality, etc.²⁰⁴

[5 ELR 50068]

The Second Circuit more recently has formulated a "rule of reason" to define the required scope of an agency's threshold investigation.²⁰⁵ Thus the Navy need not fear overly burdensome requirements in developing its environmental records.

D. The Revision of Navy Threshold Procedures Required by Hanly II

The Hanly II holding which applies §§ 102(2)(A), (B), and (D) of NEPA to all major federal actions requires the Navy to revamp its implementation of NEPA in several ways. Specifically, these sections require improvements to ensure informed Navy threshold decisions through better "environmental records." More generally, these provisions, with §§ 102(1) and 103 of the Act, require the Navy to revise its entire program for environmental protection under NEPA.²⁰⁶

1. The Hanly II Requirement for Increased Communication Between the Navy and the Public

As previously shown, no mandatory policy on interaction with the public now binds claimant commands. Therefore these commands usually fail to properly inform or receive comments from the communities affected by their actions. No public hearings are now required by either Navy regulations or active intervention from OP-45. In fact, a command is now permitted to keep its activities secret if it can manage this.²⁰⁷

In addition to generating many of the practical problems discussed above, this system clearly violates the sine qua non of Hanly II, as that case applies § 102(2)(B) of NEPA. Section 102(2)(B) requires each agency to develop procedures to consider "unquantified environmental amenities and values" in decision making "along with economic and technical considerations." The Hanly II court interpreted this section to require each agency to develop its environmental records through open communication with citizens' groups and the general public affected by agency actions.

For all major federal actions which are not "obviously insignificant," the Hanly II majority required that "the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold decision."²⁰⁸ The Hanly II court stopped short of mandating a formal public hearing for each threshold determination, but indicated that:

The necessity for a hearing will depend greatly upon the circumstances surrounding the particular proposed action and upon the likelihood that a hearing will be more effective than other methods in developing relevant information and an understanding of the proposed action.²⁰⁹

The Hanly II rule gives each agency some discretion in communicating with the public:

The precise procedural steps to be adopted are better left to the agency … to determine whether solution of the problems faced with respect to a specific major federal action can better be achieved through a hearing, or by informal acceptance of relevant data.²¹⁰

Hearings surely are required for some situations, however. In First National Bank of Chicago v. Richardson,²¹¹ the Seventh Circuit implicitly recognized the requirement for public hearings in appropriate cases. The court did not insist on a public hearing in the case only because that agency "early disclosed its plans to the public and gave all interested parties ample opportunity to present their views and objections…."²¹²

The previously discussed behavior patterns of claimant commands demonstrate that explicit Navy directives must enforce these requisites. To guarantee both the dialogue and the formal documentation thereof, a Navy instruction should require claimant commands to communicate through specified media.

At the very least, claimant commands should communicate through the "A-95 Clearinghouse" mechanism established by the Office of Management and Budget. This system of regional planning authorities and local governments could provide one level of interaction between the Navy and a local community.

However, the claimant commands should not limit their contacts to the official clearinghouse bodies, because Hanly II requires each agency to involve as many citizens and groups as possible in NEPA decisions. For example, the "public" which was to be informed by the procedures of Hanly II were local residents of the neighborhood of a planned federal jail. Such "grass roots" constituencies would not be adequately alerted by the A-95 Clearinghouse procedures, and would have difficulty submitting their views through that system.

The specific methods used to communicate with the public would vary from case to case, necessarily. To ensure adequate notice to the public for most major federal actions, the claimant commands should be required to provide detailed information to the local news media as early in the planning stage as possible.

[5 ELR 50069]

For actions with particularly heavy impacts on a localized area (e.g., a Navy family housing project's impact on the surrounding community), public hearings might be required. For major actions which might affect particular economic interests of a locality (e.g., a dredging operation affecting local oystermen), notice through trade journals or strategically posted signs might be necessary. Public hearings or acceptance of written comments could follow this notice.

2. The Hanly II Mandate for Refinement of the Navy's NEPA Program

The Hanly II decision applied NEPA's §§ 102(2)(A) and (D) — as well as § 102(2)(B) — to all major federal actions. Section 102(2)(A) requires agencies to conduct all their programs using an "interdisciplinary approach which will insure the integrated use of natural and social sciences and the environmental design arts." Section 102(2)(D) requires the agencies to:

study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources….

These duties add specificity to the general commands of §§ 102(1) and 103 of NEPA. All these sections, and their implementing executive directives, require improvements in the Navy's NEPA system to correct the many shortcomings discussed previously. Although innumerable refinements could be proposed, only two major revisions will be advocated here.

a. Proposal for Early Preparation of "Tiered" Impact Statements.

One improvement which could be easily adapted to existing Navy procedures would require that broad impact statements be developed for major Navy programs and plans. These statements would be written long before actual implementation of specific projects and would be filed as "overlapping tiers."

The first, most general statements would assess new proposals from a long-range perspective. For example, these would consider new weapons systems before they are purchased and legislative programs before they are introduced. Subsequent impact statements would assess specifically the environmental considerations for each implementing step or project. These later "tiers" would also update the earlier impact statements where plans have changed.

Although the Navy has not used this type of environmental assessment before,²¹³ program impact statements could be readily integrated into the existing "Master Planning Program." The Navy now makes Master Plans for many large-scale projects and installations, though these plans are not now designed to fulfill NEPA's requirements.²¹⁴

To date no court has construed NEPA to require an impact statement for a general plan of a preliminary nature, so long as appropriate statements are filed when specific parts of the plan are executed.²¹⁵ However, both the CEQ²¹⁶ and the courts have strongly advocated this approach, because:

[i]ndividual actions that are related either geographically or as logical parts in a chain of contemplated actions may be more appropriately evaluated in a single program statement.²¹⁷

Even though the specific implementing stages of a long-range program may take effect years after planning, a Master Plan EIS should attempt to reveal the plan's full potential impact on the environment. If the plan constitutes a "MASAQHE," the program impact statement should be filed well before the first implementing actions are taken.

Even if not formally filed as impact statements, these Master Plan EIS's should be revealed for public scritiny as early as possible in the planning process. Early publication would elicit information to improve the plan and would expose potential problems and controversies.

Because such Master Plans are subject to continuing modification, however, no court reasonably could enjoin such a plan far in advance of its implementation, even if environmental impacts are anticipated. A "rule of reason" would prohibit early court interference, since the Navy should be permitted to foresee and solve potential environmental problems.

b. Proposals for a Navy Environmental Protection Command.

To fulfill most effectively its duties under NEPA, the Navy must greatly revise its environmental program. Even though the present staff of OP-45 strives mightily to enforce NEPA, the Ft. Story case and other cited failings show that reorganization is needed.

The small staff, limited funding, and restricted duties of OP-45 explain many of the Navy's NEPA difficulties. The centralized isolation of OP-45 and the CEIS Review Panel forces these authorities to depend upon [5 ELR 50070] claimant commands for vital environmental data. The Navy's environmental problems will be poorly assessed and reported so long as this dependence persists.

To correct this defect, the Navy should establish a distinct major command devoted to environmental protection. Of necessity, this command would be more than an expansion of the present Environmental Protection Division of the CNO (OP-45).

Although the new command would require a headquarters office, this "Environmental Protection Command" should function primarily from regional divisions and local branches. Thus the new command's structure would resemble that of the Naval Facilities Engineering Command in some respects.

Furthermore, the new environmental command could subsume some of the staff and the "Environmental Data Base" presently employed by the Engineering Field Division of NAVFAC. Unlike the EFD's, however, the new command should be independent of the local base commanders and other "claimant commands."²¹⁸ This independence should forestall the type of "command influence" which appeared to dominate the EFD in the Ft. Story fiasco.²¹⁹

The Environmental Protection Command should also employ a wider range of environmental specialists than the Engineering Field Divisions now utilize. In addition to engineers, the new command should engage, both permanently and as consultants, experts in soil conservation, forestry, several biological specialties, land use planning, waste disposal and pollution control. Similarly, the "Environmental Protection Command" should provide these specialists in every regional office, in contrast to the small number of environmental experts who now work for a few EFD's.²²⁰

One primary function of the Environmental Protection Command would be the full and objective implementation of NEPA. The command's own specialists should prepare many if not all Candidate EIS's and formal impact statements for Navy actions. This important task would thus be removed from the EFD's and hired contractors.

Similarly, the environmental command should not submit draft candidate statements to be edited or approved by the claimant command which sponsors a proposed action. Hopefully this new system would eliminate the mismanagement of NEPA environmental records by claimant commands and their agents which the Ft. Story case suggested.

The new environmental command could improve the Navy's NEPA program in numerous ways; two examples must suffice. First, the environmental command could supplant a questionable practice now used to prepare some Navy Candidate EIS's. Because the Navy presently employs few environmental experts, certain contractors who design or build Navy projects prepare the candidate statements for their own work.²²¹ These arrangements are of dubious legality, since several leading NEPA cases require the staff of the responsible agency to compile the environmental record for each threshold decision.²²² If the new command's experts prepared Navy CEIS's, this problem would be eliminated.

Second, the regional and local offices of the environmental command would permit the Navy to decentralize its present system for NEPA threshold determinations. Even if all formal threshold decisions were still reserved for the Washington headquarters, the local and regional offices could make strong recommendations on filing vel non, in contrast to present practice. Since this advice would be grounded on knowledge of conditions at the "scene of action," it would deserve great weight at headquarters. Alternatively, the new command's local or regional offices could make final determinations to file impact statements. Negative threshold decisions would be reversed when a filed impact statement is deemed appropriate.

VI. THE NECESSITY FOR INCREASED NAVY FILING OF FORMAL IMPACT STATEMENTS

Although the Navy can improve its NEPA program with many revisions, one major change in Navy policy would deal with most of the problems heretofore discussed. The Navy should adopt an affirmative policy of filing formal impact statements for all Navy actions for which filing "arguably" might be appropriate.

This modification of present Navy policy could be described as a "reversal of presumptions" or a "change in attitude" to favor filing in all close cases.As previously explained, this new policy would require the filing of most Candidate EIS's, since by definition each candidate statement assesses a "probable MASAQHE."²²³ The new policy would at least ensure [5 ELR 50071] that any questionable project such as Ft. Story's would be covered by a full impact statement. The specific measures which could effect this policy change are discussed hereinafter.

There are numerous compulsions for the Navy to adopt a new "pro-filing" policy. First, greater use of Filed impact statements would solve many of the problems previously identified in the Navy's NEPA system. Second, regardless of practical or economic considerations, the applicable law requires filing for close cases.²²⁴ Third, recent developments in the enforcement of NEPA by the courts and the CEQ indicate a practical necessity for filing impact statements for "gray area" Navy actions.²²⁵

A. Theoretical and Practical Values of Increased Navy Filing

The preceding discussion of the Navy's NEPA problems renders self-evident the essential benefits which more filed impact statements would provide. A brief review of the rationale for environmental impact statements demonstrates these advantages for the Navy's NEPA system.

The fundamental justification for more filed impact statements is the "full disclosure" which an EIS provides. The hallmark of a final impact statement is the open presentation of all possible environmental impacts and alternatives for a proposed agency action.²²⁶ The processes which develop an impact statement serve to amass all available information on a proposed project and to present these facts to all interested readers.

The many achievements of the Navy's environmental protection program suggest that the Navy's inhouse NEPA system often complies with the spirit of the Act without the full disclosure of formal impact statements filed with CEQ. Nonetheless, the Ft. Story case proved that even the Navy's internalized NEPA system can fail badly without full disclosure. The comment and review processes which develop final impact statements add vital information which an inhouse CEIS might omit. Both Navy and non-Navy reviewers need all relevant data to actually assess environmental impacts and to balance these against the value of the underlying project.

The full disclosure of an EIS is most needed, however, to edify those decision makers and reviewers outside the Navy; a Candidate EIS does not serve this purpose. NEPA requires full disclosure for all close cases to inform the Congress, the other federal agencies, state and local governments, and the general public.²²⁷

These extra-agency reviewers provide the public scrutiny which fully assures that any agency has fulfilled its many NEPA duties. For example, an impact statement is needed to ensure full agency consideration of alternatives to a proposed action, as experience with a recent Navy EIS demonstrates. The Navy filed this impact statement for a controversial practice bombing range in Florida. The comments of a number of reviewers requested that the Navy consider one or more alternative sites. The Draft EIS had mentioned no such alternative before these comments were considered.²²⁸

The process which develops a formal impact statement also provides that open communication with the public which the Navy's NEPA program needs. The official commenting process encourages the most important local planners and officials to participate in agency decisions.

Furthermore, the hearings advocated by the CEQ Guidelines²²⁹ as part of EIS preparation would involve all interested parties. In fact, some judicial authority positively requires agencies to consult the general public through hearings before the final impact statements will be accepted as adequate by the reviewing court.²³⁰

B. The Navy's Legal Duty To File Impact Statements For All "Close Cases"

Obviously, the policies and practical benefits which militate for increased filing of Navy CEIS's are to some degree offset by the disincentives for filing previously discussed.²³¹ Nonetheless, the mandates of NEPA cannot be displaced by the practical difficulties of filing:

"Thus the Section 102 duties … must be complied with to the fullest extent, unless there is a clear conflict of statutory authority. Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance."²³²

Thus the Navy is clearly required to file impact statements for all "close cases," as these are defined by two distinct legal duties. The first requires filing for any action [5 ELR 50072] which "arguably" might cause some "significant environmental impact." The second duty requires filing for any action which might create an "environmental controversy."²³³

1. The Obligation To File for Any Potential Environmental Damage

The terms and theory of NEPA require a filed impact statement for each agency action which would degrade the environment in any way. Section 102 of NEPA requires that all levels of the federal government consider environmental factors "to the fullest extent possible." Several leading NEPA decisions have interpreted this section to demand a formal impact statement for each borderline case. These decisions hold that an impact statement fulfills the statutory command of "full consideration," while a negative declaration does not.²³⁴

To enforce § 102 of NEPA, the implementing directives of the executive branch similarly require a filed EIS if there is any potential for "environmental impacts." The Department of Defense directive provides that:

"… DOD Components shall … prepare and process … a detailed [EIS] on … actions which … could cause a significant effect on the quality of the human environment." [Emphasis supplied]²³⁵

The Defense Department thus requires the Navy to follow the CEQ Guidelines' rule, which requires filing in all doubtful cases:

"Such actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the [EIS] is to be prepared."²³⁶ [Emphasis supplied].

Most of the leading court decisions have demanded filing in close cases to enforce strict agency compliance with NEPA. This strict compliance standard has become well established after its introduction by the D.C. Circuit:

"an agency's [duty] to issue a statement on a project [is] not inherently flexible or discretionary."²³⁷

Thus several "rules of law" have been made by judges to require agency filing for borderline cases. A number of leading decisions hold that if a proposed agency action could "arguably" have significant environmental impact, a formal impact statement must be filed.²³⁸

The Eighth Circuit's rule is a judicial formulation of the CEQ's position:

"An agency's discretion as to whether an impact statement is required is properly exercised only within narrow bounds. Action which could have a significant effect on the environment should be covered by an impact statement." [Emphasis supplied].²³⁹

Plainly, both judicial and executive interpretations of NEPA insist upon a filed impact statement for any action which might significantly affect the environment.²⁴⁰ Objective criteria to define a "significant effect" will be considered later.

2. The Obligation to File For Any Potential Environmental Controversy

In addition to adopting a presumption for filing if any "significant environmental impact" could occur, the Navy should begin to file EIS's for all potential environmental controversies. Although the "controversy" criterion for filing is itself a subject of legal dispute, the Navy's NEPA program clearly requires this mandatory grounds for filing.

The CEQ Guidelines direct that all major actions "the environmental impact of which is likely to be highly controversial" should be assessed with a filed impact statement.²⁴¹ Whether or not the Navy is legally bound by the CEQ Guidelines, the Navy must file impact statements for controversial actions because the controlling Department of Defense Directive requires this.²⁴² In fact, the DoD Directive requires a filed impact [5 ELR 50073] statement for environmentally controversial actions even if the threshold environmental assessment specifically concludes that the action is not a "MASAQUE."²⁴³

The legal duty to file for all potential controversies has not disturbed the Navy's practice of filing relatively few impact statements, however. This fact can be readily explained by the confused legal definition of "environmental controversy."

The Navy's restrictive interpretation of "controversy" finds support in the majority opinion of Hanly II:

"'Controversial' apparently refers to cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use, the effect of which is relatively undisputed."²⁴⁴

The competing definition of "environmentally controversial" is supported by the CEQ,²⁴⁵ and by Chief Judge Friendly's dissent in Hanly II:

"[an environmental controversy is an] action which the agency should know is likely to arouse intense opposition, even if the actual environmental impact is readily apparent."²⁴⁶

The CEQ's reading of "controversy" is more appropriate for Navy threshold decisions than is the Hanly II majority's definition. Writing for the majority in Hanly II, Judge Mansfield defined "controversy" in terms of the technical assessment of environmental impacts. This definition would permit the Navy's internalized NEPA system to avoid filing for all those cases covered by adequate candidate statements.

When such a negative declaration would be challenged in court, the documentation of minimized environmental impacts by an effective Candidate EIS should leave little meaningful dispute on the "size, nature or effect" of the proposed Navy action. Thus filing would not be required for many Navy actions which nonetheless face fierce public opposition.

In effect, the restrictive definition of "controversy" of the Hanly II majority sets a "higher threshold" which requires fewer filed impact statements. This standard is only appropriate where the non-filing agency has adequately considered the views of opponents through the formal procedures of Hanly II. Since the Navy does not employ these procedures, the CEQ's broad definition of "controversy" should apply to the Navy.

C. No "Internal" NEPA System Can Obviate The Legal Requirement For Increased Navy Filing

Because the law affirmatively requires filing for all "gray area" cases, the Navy cannot avoid this duty through continued use of its internalized NEPA system. No matter how effectively an in-house system operates, it cannot substitute for filed impact statements.

Thus, in Wyoming Outdoor Coordinating Council v. Butz,²⁴⁷ the U.S. Forest Service supprted its negative declaration with an extensive, internally-developed environmental record comparable to that often amassed by Navy CEIS's. This record could not supplant a filed impact statement, ruled the court.

Similarly, the defendant agency in Natural Resources Defense Council v. Grant,²⁴⁸ demonstrated "substantial compliance" with NEPA. Its detailed environmental assessment was circulated for comment and otherwise developed as a formal impact statement would be, though it was never filed with the CEQ. The court nonetheless enjoined the subject project until a genuine EIS was filed.

Furthermore, the Navy must recognize the legal duty to file in borderline cases despite contrary implications in the majority opinion of Hanly II. Even though the three Hanly opinions ultimately upheld the agency's negative declaration for a "gray area" project, this holding was predicated upon the agency's compliance with rigorous procedural safeguards. The Navy would have to change substantially its present system for making negative declarations to compile environmental records meeting Hanly II's requirements.²⁴⁹

In addition, no inferences from the Hanly decisions can displace the numerous legal authorities which govern Navy threshold decisions. All these executive and judicial interpretations of NEPA require filing for borderline cases.

This conclusion is reasonable, because even if the Navy eventually adopts the procedural requisites of Hanly II, the need for Navy "full disclosure" will persist. Since "full disclosure" is provided only by filed impact statements, the Navy should file for all potential environmental controversies regardless of the threshold procedures of Hanly II.

[5 ELR 50074]

VII. TRENDS IN NEPA LITIGATION WHICH RENDER UNPROFITABLE OVERUSE OF NEGATIVE DECLARATIONS

Although the foregoing legal mandates provide sufficient justification for increased Navy filing, practical developments relating to NEPA litigation will discourage potential overuse of negative declarations by the Navy or other agencies. Even though the Navy has overcome all but one of the previous court challenges to its negative declarations, those Navy victories do not presage the future; the Ft. Story defeat probably does. If the Navy continues to file few impact statements for "gray area" cases, it must expect to defend many negative declarations in court, to experience delays in Navy programs during this litigation, and ultimately to lose an increasing proportion of the new lawsuits.

A. The New Public Exposure of Negative Declarations

Until recently the Navy did not reveal publicly which of its projects had received negative NEPA declarations. However, recently - adopted federal procedures will require public reporting of all Navy projects and Candidate EIS's for which the Navy refuses to file formal impact statements. The new exposure will surely generate lawsuits challenging these negative declarations for many close cases.

The new negative declaration procedures are designed to implement the Supreme Court's Overton Park²⁵⁰ opinion. That case required federal agencies to develop an administrative record for each significant decision reviewable under the Administrative Procedures Act.²⁵¹

Consequently, the latest CEQ Guidelines²⁵² and the implementing DoD Directive²⁵³ now require the Navy to submit quarterly reports to the CEQ listing all "major administrative actions" for which NEPA impact statements are not filed. The list of negative declarations will be published in the Federal Register, which will reveal many Navy projects to public scrutiny for the first time.²⁵⁴ In addition, for all significant proposed actions the Navy must now maintain a "publicly available record" setting forth the reasons for each negative threshold decision under NEPA.²⁵⁵

Inevitably, potential plaintiffs will be alerted by the published lists of Navy negative declarations. These opponents of the underlying projects will then request from the Navy copies of the "publicly available records" and the unfiled CEIS's or EIA's.

Even if the Navy refuses to give an unfiled candidate statement to a potential litigant, the latter can supposedly obtain it through the CEQ²⁵⁶ or in court under the Freedom of Information Act.²⁵⁷ Since many Navy projects will continue to generate opposition, demands for filed impact statements inevitably will increase. Consequently, a rising tide of NEPA lawsuits will probably swamp the Navy's present usage of negative threshold determinations.

B. Strict Standards of Judicial Review Which Should Dissuade Borderline Negative Declarations

Whether or not Navy negative declarations will face increasing court contests, the Navy and many other agencies must anticipate more delays and losses from those suits which will be filed. Because judges usually favor filed impact statements for close cases, courts apparently are intensifying the already strict standards of judicial review for negative declarations. In fact, some courts apply what amounts to de novo review for negative threshold decisions, even if they do not explicitly adopt this exacting standard.²⁵⁸

A growing number of courts review threshold determinations with the "reasonableness" standard, which is sufficiently strict as to be weighted against borderline negative declarations. Thus, in Wyoming Outdoor Coordinating Council v. Butz,²⁵⁹ the Tenth Circuit emphasized that the filing requirement of NEPA is mandatory, leaving little agency discretion in doubtful cases. The "reasonableness" standard clearly implements this profiling attitude:

"… the compass of the judgment to be made is narrow and … the determination [not to file] must be reasonable in the light of the mandatory requirements and high standards set by [NEPA]."

Sitting en banc, the Eighth Circuit recently adopted the same strict standard of judicial review in Minnesota P.I.R.G. v. Butz.²⁶⁰

Furthermore, the "reasonableness" standard has [5 ELR 50075] sometimes been applied in a manner differing little from de novo review. Thus, in Save Our Ten Acres v. Kreger,²⁶¹ the Fifth Circuit adopted the "reasonableness" standard but examined the agency's findings very closely:

"A thorough study of Overton Park teaches that a more penetrating inquiry is appropriate for court-testing the entry-way determination of whether all relevant factors should ever be considered by the agency [in a filed EIS]."

Although the Second,²⁶² Fourth,²⁶³ and Seventh²⁶⁴ Circuits purportedly follow the "arbitrary and capricious" standard for reviewing negative declarations, the Navy must expect costly delays and many losses under that standard as it is applied. Following the "two step" review of the Overton Park case, the "arbitrary" standard first requires judicial inquiry into whether the agency has considered and documented every relevant environmental factor in its threshold environmental record. Only if each factor was fully considered by the agency does the court review the agency's threshold conclusion under the supposedly deferential standard of the Administrative Procedures Act.

By closely inspecting the agency's fact-determinations during the first step of review, these courts also make the Navy vulnerable to lawsuits. Both the Hanly cases and the Navy's Ft. Story defeat show how plaintiffs can delay federal projects. By pointing out additional factors not adequately documented in a mini-impact statement, plaintiffs can force an agency to issue a series of negative threshold statements while the underlying project is stymied.

Even during the second step of the Overton Park inquiry, the "arbitrariness" standard does not insulate the Navy from a penetrating judicial review. Though the Seventh and Second Circuits indicate a formal acceptance of the "arbitrary and capricious" standard, their decisions show little real deference to agencies' threshold findings. To the contrary, these courts examine meticulously the agencies mini-impact statements, the nature and merits of the challenged projects, and the concluding threshold decisions. In addition, the circuits which follow the "arbitrary" standard require agencies to comply with rigorous procedural steps in compiling threshold environmental records.²⁶⁵

Thus the D.C. Circuit²⁶⁶ was probably correct when it suggested that the officially adopted standard of review makes little difference in effect. All standards are punctilious in considering NEPA negative declarations.

When a negative declaration is challenged and the court ultimately concludes that a filed impact statement is necessary, the agency has wasted much time and effort devoted to its negative declaration and legal defense. The agency would then face further delays to complete the EIS process ab initio, because courts are not satisfied with post-lawsuit impact statements filed merely to rationalize the contested agency decisions. When an agency loses a threshold challenge, it must begin anew all its decision-making procedures, incorporating the EIS to inform each stage of the decision process.²⁶⁷ The prospect of more court losses plus the added procedural burdens of negative declarations surely militate toward increased agency filing for borderline cases.

VIII. JUDICIAL TOLERATION FOR FORMAL IMPACT STATEMENTS AND SUBSTANTIVE AGENCY DECISIONS ARGUES FOR INCREASED FILING

Given that negative declarations will become less attractive to the agencies, the practical virtues of filing for close cases should be reassessed. Even though the burdens of filing remain formidable,²⁶⁸ they are by no means prohibitive. This fact is demonstrated by the many agencies which regularly resolve borderline cases in favor of filing.²⁶⁹

One can even find indications that the strict judicial requisites for filed impact statements will become increasingly tolerant. The Tenth and D.C. Circuits now accept an impact stateent as factually adequate if the agency has shown an objective good faith effort to comply with NEPA.²⁷⁰ These courts would apply the "arbitrary and capricious" tests to an EIS only if the agency showed bad faith by clear non-compliance.

More importantly, the relative freedom of an agency to go ahead with its project after an impact statement is filed argues persuasively for filing close cases. In contrast to the strict judicial overview of negative threshold determinations, courts apply a very limited judicial review or none at all to substantive agency decisions to [5 ELR 50076] proceed with actions after adequate final impact statements have been filed.²⁷¹

The Ninth and Tenth Circuits refuse to review agency decisions on the merits of projects, requiring only procedural compliance with NEPA.²⁷² The Courts of the First, Fourth, Seventh, Eighth and D.C. Circuits interpret §§ 101 and 102(1) of NEPA to require limited judicial review under the "arbitary or capricious" standard for substantive agency decisions.²⁷³

The merits of the Navy's program are even less susceptible to judicial review under NEPA than are the projects which have received substantive review to date.This is true because national defense cannot be subjected readily to the type of "NEPA cost-benefit analysis" which has been applied to dams, irrigation projects and highways.

Assuming that any Navy decision on the merits of a project would not display such complete disregard for environmental impacts as to support an inference of bad faith, most Navy substantive decisions would be nearly immune from judicial interference. Whether or not this situation is optimal, it should provide an additional incentive for the Navy to file its "gray area" CEIS's.

IX. PROPOSED MEASURES TO INCREASE THE FILING OF IMPACT STATEENTS FOR "BORDERLINE" NAVY ACTIONS

To obtain practical benefits and to comply more fully with the law, the Navy should adopt a new policy whereby impact statements would be filed for all close cases. To effect this policy change in practice, the Navy could adopt one or more of the following measures.

Even if the Navy does not restructure its present system for NEPA threshold decisions, the existing CEIS Review Panel might deliberately increase filings. The Panel might infer from the Ft. Story experience that environmental problems are understated by the claimant commands, and file every questionable candidate statement accordingly.

Alternatively, the Review Panel could end its present rule which requires a majority vote of Panel members to file an impact statement. Instead, the Panel could begin to file the Candidate EIS for any project for which one-third or one-fourth of Panel members favor filing.

Additionally, the Review Panel might begin to file close cases if selected changes in Panel membership were made. New Panel members could include additional environmental experts and recognized conservationists, who might be added formally or by the chairman's tacit selections. The Panel's "environmentalist" members would contribute new perspectives to Review Panel deliberations, revealing subtle impacts and unexplored alternatives of Navy projects. Both this contribution of new ideas and "conservationist" votes would often lead to filed impact statements for borderline projects.

If the proposed Environmental Protection Command were established, its local and regional offices would effectively increase filings whether or not they made final threshold decisions. The new command's experts "on the scene" surely would assess environmental problems and controversies more accurately than the claimant commands do now. If threshold decisions were made locally, these objective evaluations would indicate more filed impact statements. If the environmental command's headquarters made threshold decisions, the accurate candidate statements from the field would often be filed, since environmental impacts and controversies would be more fully reported than at present.

To effectuate an official policy of filing impact statements for close cases, the Navy could also adopt "objective criteria" to define the concept "significant effect on the quality of the human environment." The majority opinion of Hanly II provides two tests which the Navy decision makers should apply for every project.

First, if the proposed action could cause adverse environmental effects in excess of similar adverse effects created by existing conditions in the affected area, an impact statement should be filed. An example of such a "comparative" impact would be a Navy project which presents a land-use not conforming with existing local uses or official land-use regulations.²⁷⁴

[5 ELR 50077]

A second objective test by which Hanly II defines "significant impact" considers the "absolute quantitative adverse effects" of the proposed action. This criterion includes the cumulative harms which could result from the project's contribution to adverse conditions already existing in the affected area. An example of such an "absolute" impact would be a Navy discharge of pollutants which would increase the existing pollution of a river or air mass to a dangerous level.

Numerous objective criteria could define general classes of Navy actions which would require "mandatory" filing of impact statements. Thus, in general terms, any action requiring an "irretrievable commitment of natural resources" should receive a formal impact statement.²⁷⁵ An example of such an action is the Ft. Story housing project, since that would have occupied land suitable for addition to an adjacent state park. Another general criterion for filing was proposed by the D.C. Circuit, which stated that any action presenting a genuine question of public health should require a filed impact statement.²⁷⁶

The Navy's objective criteria for defining "significant impacts" should also consider the environmentally beneficial effects of proposed actions. However, as the CEQ Guidelines hold,

"Significant effects can also include actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial."²⁷⁷

The same principle was adopted by the Fifth Circuit as follows:

"… if the court finds that the project may cause a significant degradation of some human environmental factors (even though other environmental factors are affected beneficially or not at all), the court should require the filing of an impact statement or grant [the plaintiff] such other equitable relief as it deems appropriate."²⁷⁸

Both general and specific criteria for defining "significant impacts" are set forth in the DoD Directive²⁷⁹ for NEPA. For example, the DoD's list requires a filed impact statement for potentially controversial actions such as new family housing projects²⁸⁰ and new weapons systems.²⁸¹ However, at present the Navy's implementing instruction²⁸² converts the DoD's categories into criteria for mandatory preparation of candidate statements only.²⁸³ The CEIS Review Panel now recognizes no classes of Navy actions for which impact statements should be filed as a matter of course.²⁸⁴

From the DoD's criteria and the Navy's prior experience, certain categories of Navy actions should be designated for mandatory filed impact statements as well as "mandatory CEIS's." This set of objective criteria for filing statements would reduce the susceptibility of the CEIS Review Panel to the many pressures which discourage filing. Neither claimant commands nor higher authorities would attempt to dissuade the Review Panel from filing if their sensitive projects required formal impact statements at any rate.

Similarly, claimant commands would have less incentive to conceal environmental impacts and controversies for those candidate statements which would have to be filed regardless. Thus, more accurate candidate and draft impact statements would be submitted for "mandatorily filed" Navy projects than under the present system of totally discretionary filing.

X. CONCLUSION

Since the passage of NEPA, the U.S. Navy has developed a sound internal program to prevent degradation of the human environment from Navy actions. However, numerous flaws in the Navy's NEPA program are apparent to one who examines that program from outside the Navy's environmental establishment. Such an outsider's perspective has been the goal of this study.

The remedies and refinements proposed herein similarly seek outsiders' evaluations of Navy compliance with NEPA. Thus, the Hanly II rules and the increased use of public impact statements should ensure continuing outsiders' scrutiny of Navy actions.

Because the Navy's NEPA system has nothing to hide, the Navy should embrace increased public exposure to solve practical problems and to demonstrate [5 ELR 50078] good faith. The compelling mandates of the National Environmental Policy Act will permit nothing less.

SELECTED BIBLIOGRAPHY

Anderson, F. NEPA In the Courts (1973)

Arnold, R. The Substantive Right to Environmental Quality Under the National Environmental Policy Act, 3 ELR 50028 (1973)

Bieber, J. Calvert Cliffs Coordinating Committee v. A.E.C. (449 F.2d 1109): the A.E.C. Learns the True Meaning of the National Environmental Policy Act of 1969. 3 Env. 316 (1973)

Briggs, O. NEPA as a Means to Preserve and Improve the Environment — the Substantive Review, 15 Ind. Comm. L. Rev. 699 (1974)

Council on Environmental Quality.

Environmental Quality: The Fourth Annual Report of the Council on Environmental Quality (1973)

Environmental Quality. The Third Annual Report of the Council on Environmental Quality (1972)

D'Amato, A. Impact of Impact Statements Upon Agency Responsibility: A Prescriptive Analysis, 59 Iowa L. Rev. 195 (1973)

Durchslog, M. & Junger, P. HUD and the Human Environment: A Preliminary Analysis of the Impact of the National Environmental Policy Act of 1969 Upon the Department of Housing and Urban Development, 58 Iowa L. Rev. 805 (1973)

Emery, D. National Environmental Policy Act of 1969, An Attempt to Tailor the Government Processes to Environmental Needs, Okla. L. Rev. 141 (1973)

Friedman, F. National Environmental Policy Act of 1969 — the Brave New World of Environmental Legislation, 6 Nat. Res. L. 44 (1973)

Jordan, R., III. Alternatives Under NEPA: Toward an Accommodation, 3 Ecol. L.Q. 705 (1973)

Karp, J. NEPA: Major Federal Action Significantly Affecting the Quality of the Human Environment, 11 Am. Bus. L.J. 209 (1974)

murphy, A. National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace, 72 Col. L. Rev. 963 (1972).

Peterson, R. & Kennan, R., Jr., The Federal Aid Highway Program: Administrative Procedures and Judicial Interpretation, 2 ELR 50001 (1972)

Presearch, Inc. A Study of the Implementation of the National Environmental Policy Act by the United States Navy. Silver Spring, Md (1974)

Sax, J. (Unhappy) Truth About NEPA, 26 Okla. L. Rev. 239 (1973)

Seeley, J. National Environmental Policy Act: A Guideline for Compliance, 2 Vand. L. Rev. 295 (1973)

Yarrington, H. Judicial Review of Substantive Agency Decisions: A Second Generation of Cases Under the National Environmental Policy Act, 19 S. Dak. L. Rev. 279 (1974).

1. 42 U.S.C. § 4321 et seq., effective January 1, 1970. Citations hereinafter will be made to the original sections of NEPA rather than to the equivalent U.S. Code sections.

2. Each agency is clearly authorized to make threshold determinations for its own projects. See Hanly v. Mitchell, 460 F.2d 640, 645 (2d Cir. 1972), hereinafter Hanly I; Hanly v. Kleindienst, 471 F.2d 823, 828 (2d Cir. 1972), hereinafter Hanly II: S. Rep. No. 91-296, 91st Cong., 1st Sess. 20 (1969).

3. One example is the Forestry Service of the Department of Agriculture, which files impact statements through its Regional Offices. Source: Mr. Malcolm Baldwin of the CEQ.

4. The Department of the Interior is one example cited by Mr. Baldwin.

5. For example, the Federal Highway Administration apparently files full EIS's for practically all of its projects. See Peterson and Kennan, The Federal Aid Highway Program: Administrative Procedures and Judicial Interpretation, 2 ELR 50001 (May 1972). The Department of Transportation as a whole files large numbers of EIS's and the U.S. Army Corps of Engineers appears to resolve doubts in favor of filing. Source: Mr. Baldwin.

6. The Department of Housing and Urban Development (HUD) exemplifies such an agency, according to Mr. Baldwin.

7. This fact is further examined at several sections infra.

8. These and related matters are considered hereinafter.

9. See NEPA, supra n. 1, §§ 102(1), (2); 103, 104; Executive Order 11514 (35 Fed. Reg. 4247) of March 5, 1970, §§ 1, 2; Department of Defense Directive No. 6050.1 of March 19, 1974, §§ IV, V (hereinafter cited as DoD Directive No. 6050.1); Department of Defense Directive No. 5100.50 of May 24, 1973, §§ III, V, VI.

10. This was the conclusion of a management study prepared for the CEQ by "Presearch, Inc.," a consulting firm. Their report, dated March 1, 1974, was entitled A Study of the Implementation of the National Environmental Policy Act by the U.S. Navy. The factual details which demonstrate the immense potential environmental impacts of Navy operations are set forth at §§ 1.8-1.10, pp. 4-5 of that study.

11. Source: CDR James B. Groff, Head, Environmental Protection Division, Office of the Deputy Chief of Naval Operations (Logistics), (OP-45); hereinafter cited as CDR Groff of OP-45.

Throughout this paper several officials of the Navy's environmental programs are cited as authorities for both factual and judgmental matters. Frequently quoted are CDR Groff and other directors of OP-45 who will be identified hereinafter, including Mr. Johnson and Mr. Zillig. Also cited herein are responsible officials of the Naval Facilities Engineering Command, including Mr. Hibbert, Mr. Holmquist and Mr. Walton.

The statements for which these authorities are cited have been expressed to the author in numerous personal interviews. In addition, however, the propositions of this paper are documented in formal testimony given by these and other Navy officials during the several trials discussed in this paper.

To keep citations manageable, most specific references to the trial transcripts have been omitted and only representative officials are specifically cited. However, all of this paper's assertions are supported by testimony in the trial transcripts. In fact, most of this paper's statements are documented in the record of one case, Ft. Story, Its Future?et al. v. Schlesinger, 4 ELR 20820, 5 ELR 20038 (E.D. Va. 1974), 7 ERC 1141. This decision will be cited hereinafter as Ft. Story or the Ft. Story case. The transcript of the Ft. Story trial will be cited as "Record, Ft. Story" or as "Record." The Ft. Story case will be examined in detail later in this paper.

12. Id.

13. This Division was established in September of 1970 by Admiral Zumwalt, primarily in response to NEPA.

14. Sources: CDR Groff and Mr. Edward W. Johnson, Head of the Environmental Impact Statement Branch, Environmental Protection Division, Chief of Naval Operations (OP-45); hereinafter cited as Mr. Johnson of OP-45.

15. Source: Mr. Johnson of OP-45 and OPNAV Instruction 6240.2D of 1 April 1974, § 5(c). This instruction implements NEPA's commands to assess environmental impacts and will be cited infra as "OPNAVINST 6240.2D."

16. Sources: CDR Groff and Mr. Johnson of OP-45.

17. OPNAVINST 6240.2D, § 5(f).

18. See Council on Environmental Quality, "Preparation of Environmental Impact Statements, Guidelines," of August 1, 1973, 40 CFR 1500 et seq. These are the "CEQ Guidelines" for NEPA, revised August 1, 1973, 38 Fed. Reg. 20549 et seq., (hereinafter "CEQ Guidelines").

19. See OPNAVINST 6240.2D, Encl. 1, Sec. 3.

20. Source: Mr. Johnson of OP-45.

21. Sources: Mr. Johnson of OP-45 and Mr. Carl Zillig, Head of the Shore Installation Branch of OP-45. Also see A Study of the Implementation of the National Environmental Policy Act by the U.S. Navy by Presearch, Inc., § 6.24, pp. 180-181 (supra n. 10). This study will hereinafter be cited as Presearch.

22. Mr. Johnson of OP-45 reports that many CEIS's cost more than $15,000, though costs vary greatly depending on the nature of the project under study. In contrast, the average EIA costs only 40 percent as much as a CEIS (Presearch, § 4.18, p. 109). Mr. Johnson estimates the average cost of an EIA to be $850 and states that the ratio of EIA's to CEIS's is about 200 to 1. Many EIA's are merely two-page forms attached to the "work unit" files for minor Navyprojects.

23. Presearch, § 3.7, p. 97.

24. Presearch, § 4.3, p. 100. The same observation was made in the Navy's "Supplemental Memorandum of Law" for the Ft. Story case, supra n. 11.

25. Cited supra at n. 14.

26. OPNAVINST 6240.2D, § 3(c). OP-45 will soon revise this definition in response to the author's suggestion that it describes a "MASAQHE," which requires a formal impact statement.

27. The fiture of 180 CEIS's was provided by Mr. Johnson of OP-45. However, after he reviewed this Article he pointed out to the author that some of these "candidate statements" were not designated formally as "CEIS's" prior to official Navy adoption of that term.

28. Source: Official records of CEIS Review Panel; confirmed by Mr. Johnson of OP-45. These statistics present the Navy's record for filing CEIS's as of December 1, 1974. No change in Navy filing policy was anticipated by Mr. Johnson at that date.

29. OPNAVINST 6240.2D at Encl. (2), § 3.

30. Source: Mr. Johnson and Mr. Zillig of OP-45.

31. The civil service composition of OP-45 and the Review Panel was designed to reduce susceptibility to such pressures. Other pressures are exerted on Engineering Field Divisions to prevent the voluntary submission of CEIS's to OP-45. See Record, Ft. Story, supra n. 11, Vol. II at 456.

32. Mr. Edward W. Johnson, fully cited at n. 14, supra.

33. The one service member is a naval officer trained as an Industrial Hygienist.

34. OPNAVINST 5420.78 of 20 July 1973; this establishes the CEIS Review Panel.

35. The primary disciplines represented on the Panel and on the staff of OP-45 are oceanography, meteorology, geology and the following engineering specialties: civil, mechanical, architectural, electrical and sanitary. (Source: Mr. Johnson of OP-45).

36. Source: Mr. Johnson of OP-45.

37. OPNAVINST 5420.78, supra n. 33.

38. Record, Ft. Story, Vol. II at 487. Although it is official Navy policy to invite representatives of claimant commands to CEIS Review Panel Meetings, they rarely attend.

39. Id., Record, Vol. II at 485-6.

40. Id. at 480-90.

41. Id.

42. Sources: Mr. Johnson of OP-45; LCDR W. Harvey Dalton, JAGC, USN, Head, Environmental Law Branch, Office of the Judge Advocate General of the Navy (hereinafter cited as LCDR Dalton of JAG).

43. Id., Record at Vol. II, 480-90. This conclusion is further examined infra.

44. Id.

45. Id.; Mr. Johnson and Mr. Zillig of OP-45. However, at some few meetings the CEIS Review Panel has tabled written memoranda reflecting views in opposition to Navy projects.

46. Id.; OPNAVINST 5420.78, supra n. 33.

47. Source: Mr. Johnson of OP-45; See the discussion of the Ft. Story case, infra.

48. Id.; OPNAVINST 5420.78, supra n. 33.

49. Sources: Mr. Johnson and Mr. Zillig of OP-45; Capt. James Schuth, USMCR, Litigation Attorney for Environmental Law, Head of the Environmental Law and Command Functions Branch, Office of the Judge Advocate General of the Navy.

50. Id. This mistaken inference of environmental harms from the filing of an impact statement also seems to attract plaintiffs and courts at times. The inference is discussed at n. 266, infra.

51. Id.

52. Cited fully at n. 10, supra.

53. Presearch, § 6.12, p. 173.

54. Sources: Mr. Johnson of OP-45; Presearch § 6.25, p. 181.

55. Presearch, § 5.27, p. 154.

56. Presearch, Table 5.3, p. 155.

57. Id. p. 155-6.

58. Id.

59. Source: Mr. Johnson of OP-45.

60. Presearch, supra n. 10, p. 1649

61. Presearch, Table 5.7, p. 164.

62. Id.

63. Presearch, § 6.33, p. 184.

64. Source: Mr. Johnson of OP-45. This fact is further discussed infra.

65. The analyses of the Navy Family Housing Program and the Ft. Story case, infra, support this conclusion.

66. E.D.F. v. Corps of Engineers, 470 F.2d 289 at 296 (8th Cir. 1972) (Gillham Dam).

67. These and other functions are discussed infra.

68. Sources: CDR Groff, Mr. Johnson, and Mr. Zillig of OP-45.

69. Id.

70. Mr. Johnson of OP-45 estimates that these may add twenty percent to the initial costs of CEIS preparation.

71. Mr. Johnson of OP-45 estimates at least a twenty percent increase in costs to process an FEIS.

72. Sources: Mr. Johnson of OP-45; Mr. Hibbert of NAV-FAC. (see n. 74, infra). One specific example of this failure is the Navy Family Housing Program, examined hereinafter.

73. See CEQ Guidelines, supra n. 18, § 1500.11(b). See also F. Anderson, NEPA in the Courts, pp. 238-239, (1973), hereinafter cited as Anderson.

74. The Navy consistently takes more than 90 days to develop an FEIS; more than 30 days pass after filing the FEIS before action is taken. Source: Mr. Richard T. Hibbert, Architect, Head of the Technical Staff, Navy Family Housing Division, Naval Facilities Engineering Command Headquarters, Washington, D.C. (hereinafter cited as Mr. Hibbert of NAVFAC). This conclusion is confirmed by Mr. Johnson of OP-45.

75. Sources: Mr. Hibbert of NAVFAC: Mr. Johnson of OP-45.

76. Id. Record, Vol. I at 277 (testimony of ADM Walton of NAVFAC).

77. Id., also Record, Vol. I at 229-34, 278).

78. Mr. Johnson of OP-45 concurs in this analysis.

79. A fourth area of compliance is also exposed during a court challenge of an impact statement: whether the agency's procedures and bureaucratic structure satisfy the requirements of NEPA §§ 102(1), 102(2)(A) and (B), and § 103.

80. Many demanding judicial tests for impact statements have followed from the "strict compliance" required by Calvert Cliffs Coordinating Comm. v. A.E.C., 449 F.2d 1109 (D.C. Cir. 1971), cert. denied 404 U.S. (1972). That seminal decision required the A.E.C. to complete an FEIS before any binding decision was made on the project, to raise and evaluate all environmental questions with its own staff, and to consider every alternative to the proposal in as great detail as the major proposal.

81. A representative set of injunction cases are collected by Anderson at p. 239.

82. See Anderson pp. 242-43 and the cases there cited.

83. In Hanly II Judge Mansfield cited a statement of the defendant agency that no drug maintenance program would operate from the Metropolitan Correction Center at issue in that case and said "If the Government should later change the use of the premises to include a drug treatment center, or any change that might significantly affect the quality of the human environment, then a detailed § 102(2)(C) impact statement would be required at that time." (471 F.2d at 834, Fn. 15). Indications that a cause of action might arise from an agency's failure to fulfill its EIS commitments are found in Sierra Club v. Mason, 4 ELR 20186 (D. Conn. 1973). This court cited NEPA to hold that the defendant agency must fulfill its commitments to release to the public the results from studies promised to the EIS process.

84. Only eight lawsuits have sought filing of Navy impact statements as of November 15, 1974. Sources: Official records of OP-45, the author's study of all Navy cases under NEPA, and Mr. Johnson of OP-45.

85. Sources: Mr. Johnson and Mr. Zillig of OP-45.

86. Id.

87. 317 F. Supp. 664 (W.D. Wis. 1970).

88. 371 F. Supp. 559 (C.D. Cal. 1974).

89. 336 F. Supp. 783 (S.D. Me. 1972).

90. 449 F.2d 608 (10th Cir. 1971).

91. The better view, however, is reflected in the decision of "Project Cannikin" (Committee for Nuclear Responsibility v. Schlesinger, 404 U.S. 917 (1971)). In that case the Supreme Court indicated that "National Security" is not an absolute bar to judicial enforcement of NEPA.

Mr. Johnson and Mr. Zillig of OP-45 candidly admit that classified documents almost never prevent the filing of an adequate impact statement. Even if parts of a Navy program or device are classified, their environmental impacts are not.

92. No. 74-1184, (D.D.C. 1974) (case pending).

93. This defense is also presented in Concerned About Trident, Id.

94. 336 F. Supp. 783 (S.D. Me. 1972).

95. Id. at 788.

96. 371 F. Supp. 559 (C.D. Cal. 1974).

97. Although the defense of laches is often interposed in NEPA suits, it seems especially useful for an internalized system such as the Navy's, which files relatively few impact statements. By the time a plaintiff's group organizes and sues to compel filing, many Navy projects are nearly completed. However, some sort of notice (other than through NEPA's procedures) can usually be proved against the plaintiffs.

98. 353 F. Supp. 344 (D. Conn. 1972).

99. Id. at 349.

100. Id. at 350.

101. 4 ELR 20820, 5 ELR 20030 (E.D. Va. 1974) (supra, n. 11). The transcript of trial will be cited in this section as Record.

102. Record, Vol. I at 214-19; also see the Findings of Fact for Ft. Story, Id.

103. Record Vol. I at 270, Vol. II at 353.

104. Id.; also see Record, Vol. I at 9, 229-31, 270.

105. Id.

106. Record, Vol. I at 229-31, 278.

107. Record, Vol. II at 288.

108. Id. at 289.

109. Record, Vol. I at 270, Vol. II at 460.

110. Record, Vol. II at 314-15.

111. Record, Vol. II at 314-15, 338-40.

112. Record, Vol. I at 62-69.

113. Record, Vol. I at 233, 270-1.

114. Id. This problem, related to faulty Navy planning and funding cycles, is further discussed hereinafter.

115. Record, Vol. II at 457.

116. Record, Vol. II at 414.

117. Id. at 417. The consequent inadequacies of the CEIS are discussed infra.

118. Record, Vol. II at 418.

119. Id. at 423-26.

120. Id. at 418.

121. Id. at 441, 470.

122. Record, Vol. II at 457, 458.

123. Record, Vol. I at 4, Vol. II at 484-9.

124. Record, Vol. II at 484-88.

125. Record, Vol. I at 487.

126. Record, Vol. II at 473.

127. Id. at 472-76; also Mr. Johnson of OP-45.

128. Id. at 466-68.

129. Record, Vol. II at 469-73.

130. Sources: Mr. Johnson of OP-45; Record, Vol. II at 475, 501, supra n. 11.

131. Id. Vol. I at 198-202, 204-6, 215.

132. Id. at 216-18.

133. Record, Vol. II at 203, supra n. 11; Ft. Story, supra n. 11, 4 ELR 20821, 7 ERC 1143 (E.D. Va. 1974).

134. Id., at 4 ELR 20821, 7 ERC 1143(E.D. Va. 1974).

135. Record, Vol. I at 12, 99, 242; Vol. II at 336.

136. See Ft. Story, supra n. 11, 5 ELR 20821, 7 ERC 1141 (E.D. Va. 1974). The controlling case was U.S. v. S.C.R.A.P., 412 U.S. 669 (1973).

137. P.L. 91-604, 42 USC 1867 h-7; also see the CEQ Guidelines § 1500.9(b). The Navy has been criticized for this characteristic failure to file statements on borderline cases, since the EPA's scrutiny is frequently avoided in this manner. See Record, Vol. II at 498.

138. Record, Vol. II at 329-38, 496-99. The letter of June 25, 1974, from EPA's region III office, was supposedly issued under authority of § 309 of the Clean Air Act even though it probably did not meet the formal standards of the EPA or of the CEQ for such a commentary. The EPA's letter was never published in the Federal Register and did not address the question of whether or not such a commentary on a CEIS is authorized by applicable EPA regulations.

139. Although a few of these witnesses had been fleetingly consulted by the CEIS-contractor, most had not been. Record, Vol. I at 161, 195.

140. Record, Vol. I at 68-72.

141. Id. at 106-8.

142. Record, Vol. I at 72-4, 130.

143. Id. at 75-77.

144. Id. at 106.

145. Id. at 71-5, 129-31.

146. Id. at 107-8.

147. Record, Vol. I at 78, 80-1.

148. Record, Vol. II at 500-6.

149. Id. at 9-10; Vol. II at 296-7, 468-73.

150. Record, Vol. II at 410-440.

151. Record, Vol. I at 169-83.

152. Id. at 188-95.

153. Record, Vol. II at 425.

154. See Record, Vol. I at 138-43, 156-60; Vol. II at 284-5, 298-300.

155. The most notable "deletion" involved Dr. Delzell, a biology professor at Old Dominion University. He was cited in the final CEIS as a leading expert on the ecosystem of the proposed site.

The draft CEIS had correctly stated that Dr. Delzell was opposed to the Navy's project because any construction on the site would devastate the fragile surrounding environment (including Seashore State Park). The claimant command's final CEIS still listed Dr. Delzell as a consulted authority but omitted his statements and conclusions. See Record, Vol. II at 429, 491-2.

156. Report at Vol. II, 436-38.

157. Fort Story, supra n. 11, 5 ELR at 20038, 7 ERC at 1142.

158. 484 F.2d 158 (4th Cir. 1973).

159. Fort Story, supra n. 11, 5 ELR at 20038, 7 ERC at 1142.

160. Id., 5 ELR at 20038, 7 ERC at 1142.

161. Id., 4 ELR at 20821 (Paragraph 2 of the Order of the Court).

162. Record, Vol. I, at 136-200, supra n. 11.

163. Sources: Mr. Hibbert of NAVFAC; Mr. Johnson and Mr. Zillig of OP-45; Mr. Ray Walton, architect, Technical Branch, Navy Family Housing Division, Naval Facilities Engineering Command Headquarters.

164. Sources: Mr. Johnson of OP-45; Record, Vol. I at 232.

165. Sources: Mr. Johnson and Mr. Zilling of OP-45; LCDR Dalton of JAG, Ms. R. A. Holmquist, Housing Offices, Great Lakes Branch, Northern Division, Naval Facilities Engineering Command (hereinafter cited as "Ms. Holmquist of NAVFAC").

166. Source: Ms. Holmquist of NAVFAC; Record, Vol. I, at 136-168.

167. Sources: Ms. Holmquist of NAVFAC; Mr. Johnson and CDR Groff of OP-45; Record, Vol. I-II, at 278-324.

168. Id.

169. Sources: Record, Id., Mr. Hibbert and Ms. Holmquist of NAVFAC.

170. Sources: Ms. Holmquist and Mr. Hibbert of NAVFAC, Mr. Johnson of OP-45; Record, Vol. II at pp. 315-364; Presearch, § 6.26, p. 181. The "major alternative" to Navy Family Housing as a program is privately constructed housing in the vicinity of the naval installation. This "alternative" receives some consideration independently of NEPA, since in theory Navy Family Housing is constructed only when the private housing industry has failed to meet the perceived need.

171. See NEPA §§ 102(2)(C)(iii) and 102(D). The latter Section applies to every major Federal action whether or not a formal impact statement is filed. This point is further discussed infra.

172. Both Mr. Hibbert of NAVFAC and Mr. Johnson of OP-45 agree with the author's conclusion that this is inadequate time. Also see Presearch, § 2.71, p. 56.

173. The Ft. Story CEIS discussed above exemplified this inadequacy.

174. The current OMB Circular sets October 30 as the due date for the "DoD Budget Package," which must include whatever environmental statements are available at that time, even though incomplete.

175. Sec. 1500.12(B). This guideline states the law under NEPA § 102(2)(C), in the opinion of the author.

176. Sources: OPNAVINST 6240.2D; Mr. Johnson, Mr. Zilling and CDR Groff of OP-45; Mr. Hibbert of NAVFAC; Record, Ft. Story, Vol. II at 445-47.

177. Source: Mr. Hibbert of NAVFAC; cf., Presearch, § 2.122, p. 86.

178. Id.

179. Sources: Mr. Hibbert and Ms. Holmquist of NAVFAC.

180. This policy is required by the CEQ Guidelines, § 1500.11(b), which forbids public disclosure "where advance disclosure will result in significantly increased costs of procurement to the Government. This clearly valid requirement can hardly justify Navy non-disclosure for the many projects which are built on land already owned by the Government." (e.g., the Ft. Story project).

181. Sources: Mr. Johnson, Mr. Zilling of OP-45; Ms. Holmquist, Mr. Hibbert of NAVFAC. Naval Procurement Directive No. P-4202 of 30 September 1974 provides that there shall be no public release of successful bidder or contract price unless this is directed by the Chief of Naval Information. Announcements of any Navy executed contracts or modification valued at $1 million or more must be forwarded to the Chief of Naval Information. (See Id., p. L 188, P1-1004).

182. Source: Mr. Johnson of OP-45; cf., Presearch, § 5.3, p. 145. This instance on the formal safeguards normally employed in the filed EIS commenting process (conducted through Office of Management and Budget A-95 Clearinghouses) has proved reasonable in certain circumstances. The Ft. Story CEIS provides a graphic example.

183. This problem arose in the Ft. Story case, where the CEIS contractor consulted only lower-level appointed officials of the Virginia Beach government. Even though Navy spokesmen earlier had informed Virginia Beach city councilmen of the Navy's plans for Ft. Story, the councilmen asserted that the Navy had presented them with a fait accompli and had not considered their objections to the project. Before the Navy began new efforts to satisfy the city council, a groundswell of local opposition discouraged cooperation of the Virginia Beach authorities with the Navy. See Record, Vol. II at 437-41, cf., Presearch at 247.

184. Sources: Ms. Holmquist of NAVFAC: Record, Vol. II at 439.

185. This occurred in the Ft. Story case. Record, Vol. I at 197-207, 214-20, cf., Presearch, § 5.3, p. 145.

186. The Ft. Story case and the Chicago area cases discussed at n. 188, infra, provide examples. See Record, Vol. I, at 197-217.

187. Source: Mr. Johnson of OP-45. See n. 87, supra. Project Sanguine may be revived eventually in some state other than Wisconsin, but much money spent on the Wisconsin effort apparently was lost due to public opposition.

188. Ms. Holmquist of NAVFAC reports that public opposition forced relinquishment of the Arlington Heights and Vernon Township sites after the Navy had invested much money and time in plans, specifications and CEIS preparation. The Navy ultimately was forced to abandon the entire housing project, though the official reasons cited by DoD included statements that some of the housing units were unneeded.

189. Sources: Mr. Johnson and Mr. Zillig of OP-45 and Mr. Hibbert of NAVFAC. This approach has recently been established as official Navy policy.

190. Id. Cf., Presearch, § 2.125, at 87-88.

191. Mr. Johnson and Mr. Zillig agree with this inference.

192. Supra n. 2, 471 F.2d 823 (2d Cir. 1972).

193. 363 F. Supp. 466, 474 (D.D.C. 1973). The Controlling cases will be discussed hereinafter.

194. 471 F.2d at 834-35.

195. 401 U.S. 402 (1971).

196. 471 F.2d at 835.

197. Id.

198. 471 F.2d at 838; Maryland Nat. Cap. Pk. and Pl. Com'n. v. U.S. Postal Service, 487 F.2d 1029, 1039 (D.C. Cir. 1973); S.C.R.A.P. v. U.S., 346 F. Supp. 189 (D.C. Cir. 1972) rev'd other grounds, 412 U.S. 669 (1973).

199. See the text supra at n. 26.

200. 484 F.2d 1369 (7th Cir. 1973).

201. The Court stated that the detention center would be an architectural benefit to the area. Further, there were no residential areas nearby and no question of drug maintenance program (though both problems had been confronted in Hanly II).

202. Hanly II, 471 F.2d at 835.

203. Id., at 834-36.

204. The acceptance of the one-page negative declaration in Hanly I contrasts with the adoption of more formal procedures in Hanly II, which are apparently required only for actions which arguably could require filed EIS's (e.g., the criminal detention center of Hanly II).

205. See Harlem Valley Transport Assn. v. Stafford, 4 ELR 20638, 20642 (2d Cir. 1974). Also see Morningside Renewal Council, Inc. v. A.E.C. 482 F.2d 234 (2d Cir. 1973).

206. The legal requirements for this general revision are set forth at n. 9, supra.

207. Sources: Mr. Johnson and Mr. Zilling of OP-45 and OP-NAVINST 6240.2D, supra n. 15.

208. 471 F.2d at 836.

209. Id.

210. Id.

211. 489 F.2d 1369 (7th Cir. 1973).

212. 484 F.2d at 1376.

213. The development of an EIS for the general Navy plans for Groton, Conn., is the only approximation of this proposal to date. That effort was quite successful, according to Mr. Johnson and Mr. Zillig of OP-45.

214. See Presearch, §§ 2.74-2.75, at 59-60.

215. See, e.g., Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1278 (9th Cir. 1973); Life of the Land v. Secretary of Defense, 4 ELR 20295, 20296 (D. Ha. 1974).

216. 32 C.F.R. § 214.5(d)(3)(i). Also see the CEQ's Memo to Federal Agencies on Procedures for improving EIS's (dated May 16, 1972, 2 ELR 46162.

217. Sci. Instit. for Pub. Info., Inc. v. A.E.C. 481 F.2d 1079 (D.C. Cir. 1973).

218. The necessary independence of the new command's local offices is exemplified by the status of each JAG Corps "Naval Legal Services Office." These centers for military justice were recently made independent of local commands to avoid "command influence" problems.

219. Though not necessarily true, this was the assertion of the plaintiffs in the Ft. Story case. The judge's opinion suggests that he agreed with the plaintiffs' charges. See supra at n. 216.

220. Mr. Johnson of OP-45 reports that relatively few EFD's now employ any "environmental engineering" specialists.

221. Sources: Mr. Johnson and Mr. Zillig of OP-45.

222. The author has drawn this conclusion from the following cases: Harlem Valley Transport Assn. v. Stafford, 4 ELR 20638 (2d Cir. 1974); Greene County Planning Bd. v. FPC, 455 F.2d 412 (2d Cir. 1972, cert. den. 41 USLW 3184 (1972)); Goose Hollow Foothills League v. Romney, 334 F. Supp. 877 (D. Ore. 1971); but cf., Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973).

223. See the definition and analysis of the CEIS, supra, at n.

224. This statement expresses the author's opinion, which is supported by the authorities cited in Section VI B infra.

225. This opinion in developed at Section VII, infra.

226. See § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), ELR 41009-10.

227. This statement expresses the author's view of the law under NEPA, as documented in Section VI B, infra.

228. Presearch at 274, 276.

229. Section 1500.7(d), supra, n. 73.

230. See Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), modified on rehearing, 455 F.2d 1122. This case also cited statutes other than NEPA to require public hearings and thus does not clearly hold that NEPA alone would require public hearings.

231. See, supra, at notes 68-83.

232. Calvert Cliffs, supra, n. 80, 449 F.2d at 1115 (D.C. Cir. 1971).

233. These statements express the author's interpretation of the law, as explained infra.

234. See Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); Minnesota PIRG v. Butz, 4 ELR 20700, 20702, 6 ERC 1694, 1697-8. (8th Cir. 1974).

235. DoD Directive No. 6050.1, supra, at n. 9 at § IV(B)(5).

236. CEQ Guidelines, supra, n. 73, § 1500.6(a).

237. See, e.g., Jones v. D.C. Redevelopment Land Agency, 4 ELR 20479, 20482 (D.C. Cir. 1974); Scientists' Instit. for Public Info; Inc., v. A.E.C., 481 F.2d 1079, 1091 (D.C. Cir. 1973); Calvert Cliffs Coordinating Com. v. A.E.C., 449 F.2d 1109, 1115 (D.C. Cir. 1971).

238. Maryland Nat. Cap. Park & Pl. Com'n v. U.S. Postal Service, 487 F.2d 1029, 1039 (D.C. Cir. 1973); also see, S.C.R.A.P. v. U.S., 346 F. Supp. 189 (D.C. Cir. 1972), rev'd on other grounds, 412 U.S. 669 (1973), and Friendly, Chief Judge, dissenting in Hanly II, 471 F.2d at 838.

239. Minnesota PIRG v. Butz, 4 ELR 20700, 20702; 6 ERC 1694, 1698 (8th Cir. 1974).

240. Although some authority suggests that an action must be "major" to require an EIS independently of the "significant effects" test, the author prefers the view of the cited authorities. These cases support the CEQ's position that "significant effects" demonstrate that the subject action is also "major."

241. Since the terms of NEPA itself say nothing of "controversy," one might infer that the CEQ views controversy as a conclusive indicator of a "MASAQUE." The "controversy" test would permit the general public affected by an agency's actions to determine which projects have "significant effects." See F. Anderson, NEPA In the Courts (1973).

242. Supra, n. 9. Section IV(B)(5) requires a filed EIS for "actions which are expected to be environmentally controversial." Of course, the Navy is legally bound by the DoD Directive. See. e.g., Accardi v. Shaughnessy, 347 U.S. 260 (1964). In Nolop v. Volpe, 333 F. Supp. 1364 (D.S.D. 1971), the U.S. Department of Transportation was forced to file an EIS because its regulations recognized "controversy" as mandatory grounds for filing.

243. See DoD Directive, Id., Att. 1 to Encl 1, § E.

244. 471 F.2d 823 at 830 (2d Cir. 1972).

245. Sources: Mr. Baldwin of CEQ: CEQ Guidelines, supra, n. 73, § 1500.6.

246. 471 F.2d 823 at 838-839.

247. 484 F.2d 1244 (10th Cir. 1973).

248. 341 F. Supp. 356 (E.D.N.C. 1972).

249. These changes are examined supra at Sections C and D of this paper.

250. Supra, n. 195, 401 U.S. at 419-420.

251. See the CEQ's Third Annual Report at p. 232 (August, 1972); Admin. Proc. Act, 5 U.S.C. § 701 et seq.

252. CEQ Guidelines, supra, n. 73, § 1500.6(e).

253. DoD Directive 6051.1, supra, n. 9, § VI; § VII of Enclosure 2 thereunder.

254. Sources: Id.; Mr. Johnson of OP-45.

255. Id.

256. CEQ Guidelines, supra, n. 73. § 1500.11(f). The prerogative of the CEQ to require submission of any unfiled CEIS or EIA may pressure an agency to file in a doubtful case. For example, the CEQ has already required the Navy to submit its CEIS on the Ft. Story project. (Sources: Mr. Johnson, Mr. Ziling of OP-45).

257. 5 U.S.C. § 552 et seq., NEPA § 102(C).

258. See Sherr v. Volpe, 336 F. Supp. 886, 888 (W.D. Wisc. 1971) aff'd on other grounds, 466 F.2d 1027, 1034 (7th Cir. 1972); N.R.D.C. v. Grant, 341 F. Supp. 356, 366 (E.D.N.C. 1972).

259. 484 F.2d 1244 (10th Cir. 1973).

260. 4 ELR 20700, 6 ERC 1694 (8th Cir. 1974).

261. 472 F.2d 463, 466 (5th Cir. 1973).

262. Hanly I & II, supra, n. 2.

263. Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973).

264. First National Bank of Chicago v. Richardson, 484 F.2d 1369 (7th Cir. 1973).

265. These procedures are examined in Section V of this paper.

266. Sci. Inst. for Public Info., Inc., v. A.E.C., 481 F.2d 1079, 1095-96 (D.C. Cir. 1973).

267. See, e.g., S.C.R.A.P. v. U.S., 371 F.Supp 1291, 1300 (D.D.C. 1974).

268. See text supra, at notes 68-83.

269. See supra, n. 5.

270. See, e.g., Nat. Helium Corp v. Morton, 4 ELR 20041 (10th Cir. 1973); Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972).

271. See § 10(e) of the Administrative Procedures Act, supra, n. 251. Of course, this assumes compliance with the rigorous procedural standards for preparation of an FEIS (discussed supra, n. 79-83).

272. EDF v. Armstrong, 487 F.2d 814 (9th Cir. 1973); Nat. Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971). The Second Circuit has not dealt directly with this question.

273. See, e.g., Silva v. Lynn, 484 F.2d 1282, 1283 (1st Cir. 1973); Conservation Council of N.C. v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); EDF v. Corps of Eng'rs, 470 F.2d 289 (5th Cir. 1974); Sierra Club v. Froehlke, 486 F.2d 946, 951-3 (7th Cir. 1973); EDF v. Corps of Eng'rs, 470 F.2d 289, 298-300 (8th Cir. 1972), inj. denied, 409 U.S. 1072; Calvert Cliffs Coord. Comm. v. AEC, 449 F.2d 1109, 1112, 1115 (D.C. Cir. 1971). The Eighth Circuit case cited in this note expressed the scope of review of substantive agency decisions as follows. First, was the decision within the scope of the agency's authority; if so, was the decision arbitrary because of failure to consider all relevant factors or commission of a clear error in judgment. The court nonetheless upheld the agency's decision to proceed despite environmental harms considered in the FEIS.

274. The courts have practically established as a per se significant impact any action presenting a distinctive difference in kind or degree from established land uses, or any action for which potential environmental impacts could extend beyond the geographic limits of one local planning authority. The rationale for requiring a filed EIS for a non-conforming use was discussed in Md.-Nat. Cap. Pk. & Pl. Com'n v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973). A proposed juvenile detention center was enjoined pending an EIS where it constituted a variance from a planned, low-density residential area in Tierrasanta Comm. Council v. Richardson, 4 ELR 20309, 20310 (S.D. Cal. 1973). In Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971), a proposed prison facility was held a nonconforming land-use in a rural, historic area, thus requiring a filed impact statement.

275. See NEPA § 102(2)(C)(V) and 102(2)(D); Maryland-Nat. Cap. Pk. & Pl. Com'n v. U.S. Postal Service, 487 F.2d 1029, 1040 (D.C. Cir. 1973).

276. Id.

277. CEQ Guidelines, supra, n. 73, § 1500.6(b). Even though the Navy has denied at times that it is bound by the "advisory" CEQ Guidelines, the quoted position of the CEQ was adopted by the DoD Directive, which clearly governs the Navy. See DoD Directive 6050.1 of the Mar. 19, 1974, Att. 1 to Encl. 1 § A. Although the Hanly II criteria refer only to "adverse" environmental impacts, they are not necessarily inconsistent with the CEQ's rule.

278. Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973).

279. DoD Directive 6050.1, supra, n. 277 at Att. 1 to Encl. 1.

280. Id. at D(12).

281. Id. at D(2).

282. OPNAVINST 6240.2D, supra, n. 15.

283. Id. at § 3.

284. OPNAVINST 6240.2D, supra, n. 15; Mr. Johnson of OP-45.

5 ELR 50049 | Environmental Law Reporter | copyright © 1975 | All rights reserved