CEQ Issues Less Ambitious Seventh Annual Report

Without much fanfare, the Council on Environmental Quality has issued its seventh annual report, a document notable for both its brevity and relative punctuality.Entitled Environmental Quality — 1976,¹ it totals only 378 pages, barely half the length of last year's report.As CEQ notes in the Preface, this shortening is purposeful; the Council has adopted a new format which it hopes will make the report more useful as a reference document. Lengthy chapters on special topics such as those on carcinogens in 1975 and land use in 1974 will henceforth be issued as individual publications rather than included in annual reports. The first example of this new policy seems to be Environmental Impact Statements: An Analysis of Six Years' Experience by Seventy Federal Agencies, a 103-page study issued by the Concil in March 1976. Perhaps as a consequence of this separate publication, the section in this year's report dealing with the National Environmental Policy Act (NEPA) has shrunk to 15 pages as compared to 38 pages in last year's volume.

Rather than a number of chapters covering broad subject areas, the 1976 report is divided into only two parts: "Events of the Past Year," which recounts new legislative, judicial, administrative and private sector developments affecting the environment, and "Conditions and Trends," which analyzes data relating to environmental improvement or deterioration. These two sections are then broken down into subject area subcategories within which discrete events or issues are described and discussed.

The report's brevity may in large part be due to the short interval since issuance of the last annual report. The customary publication date for past volumes has been December, but the 1975 report did not appear until February of this year. The 1976 report, which covers events up to July 1976, was issued at the end of September, an unexpectedly early debut that followed by only seven months publication of the 1975 volume.

[6 ELR 10279]

This reduction in bulk has been accompanied in some instances by a devaluation in substance. Generally, the 1976 report parallels last year's volume in its conclusions and recommendations, but provides shorter, more descriptive, and less analytic treatment of environmental issues in all areas. This year's short recitation of international agreements and events does not measure up to last year's penetrating analysis of the problems of global food production and overpopulation, exploitation of marine resources and oil pollution of the oceans. Similarly, the 1976 report's discussion of land use and coastal zone management focuses solely on descriptions of specific state measures and accomplishments in this area, rather than providing an additional broader analysis of these issues at the national level as did the 1975 volume.

The 1976 report also suffers when compared to last year's volume in two other areas, environmental economics and hazardous pollutants. The 1975 report devoted a 41-page chapter to the topic of carcinogens in the environment, and spent a total of 47 pages elsewhere discussing hazardous pollutants. This year's report allocated only 24 pages to this subject. The economics of pollution control merited a 75-page chapter in 1975, but only 23 pages in this year's volume. The 1976 discussion of environmental economics is keyed to the problems individual industries face because of pollution abatement costs, while last year's report undertook an extensive examination of pollution damages (to health, wildlife, vegetation, recreation, and aesthetics) as well as an analysis of abatement costs.

"Issues to Watch For," a very useful feature which appeared after each of the various subject area entries in the 224-page "Perspectives on the Environment" chapter of the 1975 volume, has been dropped. These sections provided analysis as well as prognosis, and gave the reader a broader understanding of the most important unresolved issues in each particular area. This year's report, in contrast, fails to provide this long range view in a consistent fashion.

The thrust of CEQ's 1976 Report is to announce gradual but continued progress in the improvement of environmental quality despite bureaucratic retrenchment in the implementation of the nation's pollution control programs under the Clean Air Act and the Federal Water Pollution Control Act in the face of growing technological, economic, and administrative complications. At the same time, the report points to the quickening pace of regulatory action in other areas, such as toxic substances control, coastal zone management, wetlands protection, and energy policy. The report also notes that progress is being made in improving the management of mineral, grazing, and timber resources on the public lands, but points out the difficulties currently facing the national park system because of rapidly increasing use without commensurate personnel or budgetary increases.

On the subject of energy, the report emphasizes the growth of federal funding for energy conservation and development of solar energy technology, but notes the serious environmental problems associated with other energy technologies which might serve as alternatives to petroleum, such as converting existing oil-fired power plants to coal, production of synthetic fuels, and increased reliance on nuclear power plants.

CEQ points to public resistance and the as yet-unresolved problems of radioactive waste disposal to show that the expansion of nuclear still faces most of the same difficulties it has for the past several years. The Council devotes more extensive consideration to the various alternative technologies for making greater use of coal in power generation, however.CEQ's analysis suggests that high-Btu gasification of coal may be the most preferable a ternative from an economic as well as an environmental point of view, but the Council acknowledges that more testing of currently unregulated pollutants which may result from coal conversion technologies is necessary to validate this hypothesis.

In discussing conditions and trends in air and water quality, the report presents a variety of data to support its twin conclusions that progress has been made but that some of the toughest implementation problems remain in both areas. This extensive use of data is representative of the substantial documentation of the entire volume with charts, graphs, and figures, which allows the report to function as a handy reference source as CEQ hoped.

One other area in which the report is disappointing is its discussion of matters relating to NEPA. CEQ's 1974 and 1975 annual reports both devoted a full chapter to judicial and administrative implementation of NEPA at the federal level, as well as chronicling events at the state level relating to "little NEPA's" modeled on the federal statute. The separate publication of a study on federal agency compliance with NEPA may have justified shortened treatment of this aspect of the Act in the annual report, but the document inexplicably circumscribes the customary description and consideration of state experience with "little NEPA's."

The three pages devoted to NEPA-related events in the courts contain a brief discussion of the Supreme Court's decision in Kleppe v. Sierra Club,² clearly the most important judicial ruling interpreting the Act to come down between July 1975 and July 1976. This section also mentions the Second Circuit Court of Appeals' decisions in Conservation Society of Southern Vermont v. Secretary of Transportation³ and Natural Resources Defense Council v. Nuclear Regulatory Commission,⁴ which, like Kleppe, concerned program impact statements. The short section on judicial events ends with a one-paragraph discussion of the other NEPA case decided by the Supreme Court last term, Flint Ridge Development Co. v. Scenic Rivers Ass'n,⁵ which held NEPA [6 ELR 10280] inapplicable to the Department of Housing and Urban Development's receipt and review of property reports filed by developers pursuant to the Interstate Land Sales Full Disclosure Act because of an irreconcilable statutory conflict. While these decisions merit treatment in any discussion of judicial events during 1975-76 which concerned NEPA, restricting such a disscussion only to these four cases necessarily gives the analysis a cursory character.

On balance, CEQ's seventh annual report fulfills the Council's expressed hope that the document serve as a usable reference source on environmental matters. However, the report is less ambitious that those of the last several years in attempting to identify and analyze legal trends, or to act as a catalyst or advocate a point of view on particular environmental issues.⁶ This lowering of the report's profile and its surprisinglyearly release date may reflect a changing of the guard at the agency,⁷ as well as a clearing of the decks in preparation for whatever role the Council will be called upon to play in the new Administration.

1. Available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402, Stock Number 041-010-00031-2, $3.50.

2. __ U.S. __, 96 S. Ct. 2718, 6 ELR 20532 (June 28, 1976). See Comment, NEPA Off the Top: Supreme Court Interprets Impact Statement Requirement, 6 ELR 20164 (Aug. 1976).

3. 531 F.2d 637, 6 ELR 20207 (2d Cir. Feb. 18, 1976). See Comment, Fallout from SCRAP II and the 1975 NEPA Amendments: Second Circuit Reverses Itself in Conservation Society, 6 ELR 10081 (Apr. 1976).

4. __ F.2d __, 6 ELR 20513 (2d Cir. May 26, 1976). The court later denied a motion for rehearing, __ F.2d __, 6 ELR 20723 (2d Cir. Sept. 8, 1976). See Comment, Second Circuit, CEQ Clarify Permissibility of Interim Actions Prior to Completion of Program EIS, 6 ELR 10254 (Nov. 1976).

5. 426 U.S. __, 96 S. Ct. 2430, 6 ELR 20528 (June 24, 1976).

6. The 1974 annual report emphasized the need for land use planning and control, while the 1975 volume stated the case for federal legislation controlling toxic substances.

7. Russell Petersen resigned as CEQ Chairman effective October 1, 1976.