The purpose of the National Environmental Policy Act, in the words of the Senate Committee Report on it, was to establish a "clear statement of the values and goals which we seek … a set of resource management values which are in the long-range public interest and which merit the support of all social institutions … in short, a national environmental policy."¹ The report argued that such a policy was necessary, in view of the accelerating spread of pollution, crowding, and other forms of environmental degradation; that it was an unavoidable responsibility of the Congress, since "only there could competing political interests be adequately represented and accomodated;"² and that it must be implemented within the activities of all agencies of the federal government, since "environmental programs are presently administered by 63 Federal agencies located within 10 of the 13 departments as well as 16 independent agencies of the executive branch."³

Consistent with the Senate Committee Report, the preamble to the law itself stated four interdependent purposes of the legislation:

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment;

To promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man;

To enrich the understanding of the ecological systems and natural resources important to the Nation; and

To establish a Council on Environmental Quality.⁴

The purpose of this paper is to assess the accomplishments and limitations of NEPA as it has been implemented. Its principal conclusion is that NEPA has proven far more significant as an administrative reform statute than as a substantive policy mandate, and that in the former capacity, though not the latter, it has proven extraordinarily effective. While important problems remain in the law's procedural implementation, these are less important for the future agenda than the tasks of preserving the essential administrative reforms so far achieved, and remedying the lack of attention so far given to the law's substantive purposes.

What Has Been Implemented?

An essential first question is, how much of NEPA has been implemented to any significant degree? The law contains three basic elements: the policy declaration of § 101, the so-called "action forcing" procedural requirements of § 102, of which the requirement for "detailed statements" (EIS) is one; and the establishment of the Council on Environmental Quality in Title II.

It is not too strong to say that the attention of virtually all federal agencies, from the Council on Environmental Quality (CEQ) on down, has been directed almost exclusively to the procedural implementation of § 102(2)(C),⁵ which required the preparation of detailed statements. The guidelines of the CEQ have been directed solely to the preparation of these detailed statements; not until the 1973 revision was there even an explicit reminder that the statements were intended to insure implementation of the policy goals of § 101 rather than serving as ends in themselves.⁶

[6 ELR 50002]

It is not surprising that CEQ took this tack, or that the agencies followed its lead. The detailed statement was by far the most tangible requirement in the law, with the sole exception of § 103, which required a one-time-only statement of conflicts between NEPA and prior mandates of each agency. Moreover, the proceduralism of the agencies was strongly reinforced, beginning less than two months after the law's enactment, by vigorous judicial review in the proceduralist tradition of the courts.⁷ The use of the courts as a source of pressure for implementation has had demonstrable benefits, but it also reinforced a narrow emphasis upon the detailed statement per se rather than upon the fundamental purposes and other provisions of the law.

In reviewing the implementation and results of NEPA to date, therefore, one must bear in mind throughout that these results are based upon implementation principally of the law's two or three most tangible requirements, rather than its entirety. I shall return to this point below, in suggesting needs for further discussion and future action.

Current Status of NEPA Implementation

Within the framework of NEPA's statutory requirements, the guidelines of the Council on Environmental Quality, and the emergent lines of judicial precedent, the actual implementation of NEPA's mandate was deliberately left by law to the initiative of each individual agency of the federal government. A principal consequence of this circumstance has been great diversity in the ways NEPA has been interpreted and applied, even to similar types of actions that happen to be taken by different agencies. This diversity has frequently extended even to actions taken by different field units of the same agency, a point which can only be noted here rather than explored in detail.

This diversity should not necessarily be construed as a miscarriage of the law, since there is inherently great variance in the authorities and actions of different agencies, and since such diversity within reasonable constraints may be a precondition for innovation. In assessing the results of the law, however, one must attempt to capture at least a general sense of the similarities among agency interpretations of the law, as well as an illustrative range of the significant differences that have also developed.⁸

First, most if not all agencies now have at least procedural guidelines concerning the implementation of NEPA, and most of these guidelines have been published in the Federal Register. It is well recognized that for the first several years after NEPA's enactment, most agencies' guidelines centered upon the preparation of the "detailed statements of environmental impact" which it required; and more particularly upon the procedures by which such statements must be prepared and reviewed, rather than upon the substance of the statements.

However, a substantial minority of agencies have not yet developed internal guidelines that go beyond the general guidelines of the Council on Environmental Quality. In a survey performed for the U.S. Geological Survey in August 1974, the MITRE Corporation found that 11 out of the 65 agencies whose guidelines had been published in the Federal Register, or 17 percent, had no guidance beyond that of the CEQ.⁹ It is not even reassuring that most of these are not project construction agencies, since at least some of them (for instance, the Interstate Commerce Commission, the National Aeronautics and Space Administration, and the General Services Administration's Property Management and Disposal Service) are responsible for non-project actions that may have serious environmental impacts.

Third, many agencies, probably at least two-thirds of them, now have guidelines that enumerate either types of agency action that may give rise to environmental impacts, categories of environmental impacts that should be considered in environmental analyses, or (sometimes) both. The MITRE study found that of the 65 agencies examined, 30 enumerated actions and 20, with some overlap, enumerated categories of impact. There was no obvious pattern or consistency, however, between these two types of guidance.

Most agencies' recent guidelines seem to emphasize more and more comprehensive descriptive enumeration of the existing environmental setting, and pay far less attention to more crucial substantive issues (such as quality and reliability of impact predictions, development and assessment of alternatives, and choice of methodologies for environmental analyses).

The apparent reason for this trend is the emphasis placed by reviewing courts on whether or not all conceivable impacts have at least been "considered," thereby stimulating the agencies to describe or at least mention every conceivable facet of the environment in order to demonstrate that each had crossed its mind. Problems associated with this trend include (a) burial of genuinely significant impacts under mountains of descriptive verbiage, (b) weakening of the EIS as an analytic document, by emphasizing description rather than prediction, and (c) creation of a serious impediment to policy- or program-level EIS's, which are unlikely to come into broader usage if they are compelled to "consider" every site-specific issue that may result from individual actions within their realm.

Notwithstanding this trend toward comprehensive description, there is little consistency among agencies' guidelines concerning either the range of impacts to be considered, or the depth to which each should be analyzed. Some of this inconsistency can be attributed to a preference for ad hoc professional judgment rather than standardized enumeration, but some of it is also due to continuing contention concerning the proper definition and scope of "environment." For example:

(a) Agencies differ dramatically in the extent to which they include impacts on the social environment in their EIS's. Among others, the Forest Service, Nuclear Regulatory Commission, and Departments of Commerce, Housing and Urban Development, and [6 ELR 50003] Transportation reportedly believe that such impacts should be fully considered in the EIS; but the EPA and the Department of the Interior reportedly believe that they should not, or at least that they should be given only limited consideration.

(b) The same is also true of economic impacts, with only four agencies giving full consideration to economic impacts in the EIS.

(c) Only eight to ten agencies discuss the impacts of proposed actions on energy conservation.

(d) Virtually no agencies require discussion of the distribution of environmental impacts on receptor populations. One possible exception is the Department of Housing and Urban Development, which reportedly requires discussion not only of the distribution of adverse environmental impacts, but also of the distribution of access to the benefits of proposed actions.

(e) Only one agency (HUD) requires discussion of the impacts of the surrounding environment on the environment to be created by a proposed action (for instance, airport noise on a proposed hospital), or of the quality of interior environment that is to be created by the proposed action.

(f) Many guidelines require identification of impacts of proposed actions on the achievement of program goals and objectives, but few if any require discussion of impacts on NEPA's stated substantive goals and objectives (cf. § 101(b)).¹⁰

Generally, the agencies' guidelines per se do not specify research design or data collection procedures. However, at least 12 to 15 agencies now have, or have contracted for the development of substantive "handbooks" or "manuals" for environmental impact analysis.¹¹ The range of impacts covered in these handbooks varies widely, as does the quality of their content; but collectively most of them share three major similarities:

(a) They are intended for use in analyzing site-specific, project-type actions, such as as highways, waste treatment plants, power plants, etc. Few if any provide guidance for other types of actions, such as policy or programmatic actions.

(b) They seek to provide "cookbooks" for analyzing impacts frequently associated with each type of action. A typical approach would be to define a type of action (for instance, a highway or power plant), develop a "checklist" of impact categories specific to that type of action, and then for each of these impact categories to describe why that impact might cause concern, under what circumstances it is likely to occur, how it can be measured, and where to look for either site-specific data on it or further literature references.

(c) In essence, they provide a new element of depth to the "checklist" approach, but by the same token they still do not solve the weakness of checklists for dealing with other substantive issues; e.g., choice of alternatives for analysis, depth of analysis that should be devoted to each type of impact (and associated costs), prediction of secondary, interrelated, and cumulative impacts, and relationship of specific impacts to decision issues.

Most guidelines now require citation of the sources of information and predictions used, but few elaborate upon or enforce this requirement. Most do not require demonstration of the basis of impact predictions in sufficient detail that they could be independently validated; and most do not require identification of individual authorship of the impact statement, nor of the credentials of experts whose professional judgments provided the basis for impact predictions. This deficiency appears to encourage or at least permit superficial judgments and glib literature analogies. Few if any guidelines require or even encourage the use of ex post analyses as a check on the reliability of impact predictions.

Approximately 20 percent of the agencies' guidelines include either quantitative, or definitive but non-quantitative criteria for use in environmental impact analysis; the MITRE study¹² identified eight of the former, and five of the latter. In most cases, however, these criteria concern only the decision of whether or not to prepare an EIS, not the magnitudes or acceptability of the impacts themselves.

Finally, most agencies have issued little or no substantive guidance for the preparation of EIS's on nonsite-specific actions, although an increasing number of agencies are actively experimenting with the preparation of such EIS's. As noted above, most of the "handbooks" currently in vogue are directed toward project-type actions and site-specific impacts. The following examples, however, suggest types of EIS's recently prepared or in progress which do not fit these models:

(a) EIS's on multi-action composites, such as western coal or oil shale leasing (Department of Interior).

(b) EIS's on regional plans, such as the Forest Service's unit plans and the National Park Service's management plans.

(c) EIS's on generic or prototype actions, such as the Atomic Energy Commission's breeder reactor [6 ELR 50004] prototype, Housing and Urban Development's Modular Integrated Utility Systems, Federal Energy Administration's alternative energy sources, or other introductions of new technologies.

(d) EIS's on fiscal allocations, such as annual budgets for particular agencies or block grants for particular purposes.

(e) EIS's on mission-oriented programs, such as the Bureau of Land Management's western range management program or the Forest Service's fire control program.

(f) EIS's on policy actions, such as the Project Independence energy policy or the Forest Service's 5-10 year national resource production targets and programs.

(g) EIS's on non-project regulatory actions, such as the Interstate Commerce Commission's freight rates for recycled materials and Food and Drug Administration's approval of plastic soda bottles.

A more fundamental point than any of the preceding, however, is that the agencies differ significantly in their interpretations of the purpose of the EIS; and these interpretations obviously play a major role in shaping the substantive content of their EIS's. The Department of the Interior, for instance, considers the EIS a specialized technical input into decision processes, but separate from the "decision document" in which tradeoffs among environmental and other considerations are made. The water resource development agencies, in somewhat different fashion, appear to be treating the EIS increasingly as a byproduct informational document for public consumption, while their decision analysis of both environmental and other information flows through the "accounts" system established by the Water Resource Council's "Principles and Standards." At the other extreme, the Forest Service professes to be fully integrating the environmental impact statement with its unit plan and other decision documents, even to the point of unofficially advocating use of the draft EIS as a decision option paper that would lay out alternatives and their impacts as a full basis for informed choice.

In summary, despite five years of experience and the current flurry of expensive "cookbooks" for environmental assessment, the agencies' substantive guidelines for NEPA implementation still are quite general, quite varied, and fragmentary, and leave many central questions unaddressed. This appears true even at the most general level, leaving aside the whole ranges of questions bearing upon the choice among alternative measures and models for predicting specific types of impacts. Some agencies now have substantive criteria to determine thresholds of need for EIS's, and handbooks of methods for analyzing individual types of impacts; but most of these efforts are still quite crude and experimental, and little has been done to develop good substantive criteria of EIS adequacy or for choice among alternative action.

In addition, there is not yet much evidence of systematic change in substantive activities as a result of NEPA, particularly in fundamental federal priorities for action, despite the considerable number of changes in individual action proposals that have been credited to NEPA influence. To the extent that environmental impacts could be ameliorated by design changes, beneficial progress has occurred; to the extent that they required site changes, some changes have also taken place; but to the extent that they resulted inherently from certain types of government actions, such as construction of dams, highways and nuclear power plants, little if any substantive change in priorities has been shown except as a function of budgetary, political, and other considerations broader than the requirements of NEPA.

Results

The most tangible result of NEPA unquestionably has been the preparation of some 6,000 "environmental impact statements," each of which describes what is stated to be a "major federal action which might significantly affect the quality of the human environment," and attempts to document the likely impacts of that action as well as "reasonable" alternatives to it. The actions described vary immensely in their scale and cost; in the nature, extent and timing of their likely impacts; and in the nature and range of alternatives considered.

Despite this variance, and the related variance among the practices of different agencies, the preparation of the detailed statements has had generally similar effects upon most agencies. Controversy has existed ever since the law's enactment as to whether its achievements outweigh the strains and costs it has imposed upon the federal administrative establishment; but there is little dispute concerning the nature of its achievement.¹³

First, the EIS requirement has compelled far broader and more systematic questioning of the consequences of proposed government actions, from the top down to the lowest levels of federal decision making. Whatever decision might eventually be taken, every federal decision maker at every level has had to ask himself and his staff what the broad impacts of an action might be, rather than merely relying on the oversimplified traditional tests of conformity to law, expected economic benefits in excess of monetary cost, and client satisfaction. Impact statements from the start required discussion of impacts upon man's physical and biological environment; in recent years, there has also been increasing pressure to document likely impacts upon social, economic, and other dimensions of the quality of the human environment.

Second, an indirect but major benefit of this increased comprehensiveness hasg been a heightened awareness of interrelations among actions, and between actions and consequences, both within administrative agencies and in the public at large, impact statements have stimulated broader questioning and thought within administrative agencies; they have also provided a vehicle for broader public education and debate about the desirability of alternative consequences, and hence of the actions which give rise to them.

[6 ELR 50005]

Third, EIS requirements have stimulated increases in the mobilization of expertise; particularly on the part of some agencies that were under most effective pressure to improve their implementation of the law. The extent of this practice should not be overestimated, particularly since agencies' environmental offices frequently include substantial numbers of traditional professions under new labels, and most are isolated in a staff capacity rather than integrated into the line of authority; but to the extent that some changes in professional staffing have occurred, the potential for both broader and more intelligent planning has increased.

Fourth, the necessity of documenting environmental impacts of proposed action has had both a moderate direct effect and a substantial indirect effect, on influencing particular decisions concerning proposed actions. In some cases actions have been halted; in others they have been modified, either slightly or substantially; in still others they have been studied far more carefully before the decision was made to proceed with them. This is understandably a controversial achievement of the law, particularly from the perspective of those who would have benefited from actions that would otherwise have been taken; but the requirements should hardly be blamed for serving the law's intended purpose.

The impact statement device has proven to be a valuable new instrument both of federal interagency coordination, and of state governed efforts at environmental management and intergovernmental relations. In this regard, two features of the EIS are paramount: first, the fact that notice is given of proposed actions to all relevant agencies, with a waiting period for comments (a waiting period which was established by guideline rather than by the law, it must be noted); and second, the fact that the document states the likely consequences of the action. Formally, or course, these statements need not be circulated until quite close to the actual time of action; but in fact, the prospect of possible negative public comments from agencies has led most agencies to far greater and earlier informal coordination than had previously occurred.

It is easy to forget, after five years of NEPA, the extraordinary lack of communication that previously prevailed in many cases, between federal and state agencies whose efforts might conflict.¹⁴ The reviewability of the impact statement by other federal and state agencies, and of their comments on it by the public, has had substantial and documented value for the ability of all those agencies to carry out their responsibilities.¹⁵

Fifth, the public availability of impact statements, and of agency comments on them, has provided an extraordinarily effective vehicle for making nongovernmental groups and private citizens aware of government actions affecting them, and for bringing their preferences as well as their knowledge to bear upon those decisions. The public availability and waiting period are obvious prerequisites to such participation; but another essential characteristic is the fact that impact statements must address the issues that are most of concern to affected citizens: namely, the consequences of proposed actions rather than merely the justifications for them. In some cases these participants have been scientists or other experts, with knowledge of environmental relationships that had escaped the agency responsible for the statement,¹⁶ in others they have been citizens or interest groups whose environments, as perceived by themselves, would be degraded by the proposed actions.¹⁷ The propriety of each ultimate decision can be debated; but the legitimacy of a process by which all perspectives are better heard, and the value of impact statements for insuring that result, are evident.

Sixth, and finally, NEPA has had an indirect but substantial effect in stimulating applied research on ecosystems and other elements of the human environment, and upon relationships between human actions and those relationships. At the least, EIS efforts have made us acutely aware of how much we do not know when we take a major action; at most, in some cases they have served to reduce important uncertainties and to bring important scientific issues onto the public agenda. A most obvious example is the present concern over freon damage to stratospheric ozone, a problem which might have taken far longer to reach public attention had it not been for the well-publicized controversy over the supersonic transport EIS on 1970, shortly after NEPA's enactment. While impact statements were not intended to stimulate basic environmental research,¹⁸ and are arguably inefficient mechanisms for it, they have clearly had a valuable effect in refining the agenda of research needs in this area.

Causative Force

In noting the principal effects of the impact statement requirement, it is important to recognize that the most effective instrument of its implementation clearly has been politicalpressure rather than voluntary commitment on the part of the agencies.¹⁹ Many instances can be cited in which actions were not changed despite political pressures; but few if any significant policy changes took place in response to NEPA in the absence of such pressure.

Unexpectedly, the environmental impact statement has proven to be not a single "action forcing mechanism," as it was described in the law, but the pivotal document of three such mechanisms: review of environmental information within the originating agency [6 ELR 50006] as the proposal proceeds upward, review and comment by other agencies having "jurisdiction or special expertise," and finally, review and comment and potentially legal action by members of the public. Each of these mechanisms functions in a different fashion; the first, by bringing new and more complete information to the attention of officials responsible for federal actions; the second, by increasing the circulation of information among agencies of differing jurisdictions and expertise; and the third, by increasing opportunities for ad hoc objection by individuals who would be adversely affected by proposed actions.

Among these three mechanisms, it was the third that proved by far the most effective in stimulating efforts toward conscientious implementation. It achieved that success principally by providing a new channel of effective access, through which concerned individuals could both review such proposals and their impacts, and make their views known.²⁰ Its direct effect was to raise a credible threat of challenge to any potentially controversial federal action, thus creating new and tangible incentives for administrators to implement at least that portion of the law conscientiously.

In short, the essence of NEPA's effectiveness to date has not been its articulation of a clear environmental policy, but rather the very ambiguity of that policy combined with tangible and effective reforms in administrative procedures: broadened standing to sue, disclosure of actions and likely consequences, notice in advance of proposed actions, reviewability of the basis for decisions as well as interagency comments on them, and opportunities to insert material into the record. These instruments are in the tradition not of environmental legislation, but of the Administrative Procedure Act and the Freedom of Information Act; and their values should be recognized, evaluated, and maintained accordingly.

NEPA was in three respects both a logical and an appropriate response to the recent history of federal administrative practice. First, it challenged the "incrementalist" behavior patterns so elegantly described by Braybrooke and Lindblom, on behalf of increasingly important social values that were either ignored or eroded by those patterns.²¹ Second, interagency relationships in the federal government for the last 30 years have exhibited a pattern of increasingly comprehensive requirements for "coordination," due at least in part to the persistent unwillingness of the Congress to permit strong central planning within the Executive; and NEPA's reviewable impact statements provided virtually the ultimate instrument of such coordination, requiring as it did review by all agencies having "jurisdiction or special expertise" rather than by the traditional hodgepodge of bilateral arrangements.²² Finally, NEPA's public review provisions offered a genuinely egalitarian, pluralist response to the growing power of the federal administrative establishment, power based upon congressional delegation of increasing amounts of discretionary authority to mission-oriented agencies.²³ Administrative processes were already politicized on behalf of each agency's client constituencies;²⁴ NEPA simply completed this politicization, by affording additional access to "victim" constituencies.

Reviewable statements of impacts and alternatives before decisions have thus proven an important reform in administrative decision making, on both rational and democratic grounds; rational, in that they permit independent scrutiny and verification of the analytic bases for government decisions; and democratic, in that they provide broader access to advance knowledge of government agencies' intentions. In both these respects they are significant and valuable in themselves, as well as contributing modestly to the achievement of NEPA's policy goals.

Strains on the Administrative System

At the same time, one must admit candidly that these results have only been obtained through the application of sometimes severe stresses upon the administrative system, and that these stresses should be eased wherever it is possible to find less stressful means of achieving the same results.

Fundamentally, NEPA has made decision making more complex, albeit appropriately so. It posed a direct and effective challenge to the traditional mechanisms by which the American governmental system has historically dealt with the complexity of the human environment: fragmenting complex problems into component issues, spreading them among disparate agencies for solution, and tending to different aspects of the problem sequentially rather than attempting an unattainable degree of comprehensiveness.²⁵ Dominating all other strains, NEPA's mechanisms have necessarily introduced into the administrative system the anxiety, uncertainty, and friction of increased pluralism, on an action by action basis. While this strain can be mitigated somewhat by such devices as "programmatic impact statements" (which might provide appropriate forums for debating the impacts of fundamental policies, rather than fighting these principles by attrition on an action by action basis), such friction can never wholly be removed if the purposes of the law are to be achieved.

In addition to this basic strain, numerous managerial costs have been cited as problems in the law's implementation.²⁶ While the two strains most frequently raised by the agencies are the relatively conventional issues of budgetary cost and administrative delays, both of which can and will be resolved by the conventional processes of politics and administration, several more difficult strains do require additional comment and discussion.

The first of these is the introduction of more and more pervasive uncertainty into the administrative system, which at the extreme can result in a stalemating [6 ELR 50007] of government action or disinvestment by private agents. This suggests the desirability of seeking more efficient structures and processes for government decision making, if such can be found, consistent with the administrative reform cited above.

The second concern involves the strain imposed by the impact statement process upon a much scarcer and less fungible resource than either budget or time, namely the availability of trained expertise in some necessary environmental professions. There simply are not enough archeologists or ecologists, for example, to invest their effort in preparing environmental assessments for all government actions that we might wish; and even if there were, there would still be a serious question as to how much of their time should be allocated to these tasks as opposed to programmatic activities of research and environmental protection. The solution of this issue will almost certainly require thought that goes beyond NEPA per se, and seeks more coherent relationships between the production of impact statements for particular actions and the production of basic scientific knowledge which might form a better basis for those assessments. The latter is in fact a prerequisite to the former, yet may require a very different conceptual and methodological basis than the administrative definitions and guidelines that shape the content of the impact statements themselves.

A third strain is the pattern of judicial precedent that has tended to reward exhaustive descriptive "consideration" of every conceivable impact, at the expense of discriminating comparisons of alternatives on their most significant environmental differences. One can speculate on the reasons for this trend, but its effect has been to exacerbate the diversion of expertise into a mechanical writing exercise, and to make the impact statement itself less valuable both for decision making and for general communication with the public. It has also militated against some agencies' efforts to utilize "programmatic" impact statements at earlier and more fundamental stages of decision making, since some such statements have been rejected by the courts for failure to "consider" site level impacts.

The fourth strain that is of concern here is the interaction of the requirements of NEPA with the requirements of other legislation, particularly the Endangered Species Act and the Historic and Archeological Preservation Act. These present special cases of the concern just mentioned above, in which mandatory consideration of site level impacts precludes the use of impact statements at more general levels of policy and program decision making (which are arguably more "major" in their scale and "significant" in the breadth of their impacts than the unit actions which may follow from them). These are not strictly NEPA problems, but they must be dealt with in the context of NEPA, both because they are important constraints on its implementation, and because it has occasionally been blamed for the strains imposed by their requirements.

The Broader Context: What Has Not Been Implemented

If the behavior of the agencies showed that political pressures were necessary for the achievement of significant administrative change, however, it did not insure that the forms those pressures took between 1970 and 1974 were sufficient to the achievement of NEPA's purposes.

The procedures established by § 102 of NEPA were intended to be instruments, not ends in themselves. Yet virtually all agency guidelines through 1974 were devoted to implementation of the procedures rather than of NEPA's substantive policies. Great scrutiny has been devoted to whether or not impact statements discuss every category of impact that might be considered significant; but no action has yet been rejected because it failed to "approach the maximum attainable recycling of depletable resources," or because it failed to promote the achievement of NEAP's other stated goals and objectives. The fascination of both administrative agencies and courts with NEPA's procedural requirements has so far neglected, if not obscured, the policy purposes which the procedures were intended to serve.

As a result, there has been a growing gap between the usage of environmental statements as new documents accompanying routine forms of agency action — dams, nuclear reactor licenses, highway links, etc. — and the increasingly compelling need for an environmental perspective in truly major federal policy decisions, such as those setting he fundamental directions for food and energy use, resource consumption, pollution, and population. As one author notes,

The outright hostility that characterized agency responses to NEPA in its early years has given way partly to an accomodation on the project level and partly to a more subtle strategy of avoidance and inaction at the policy level.²⁷

This gap presents a crucial issue of philosophy and goals for those who would involve themselves in influencing the future course of NEPA implementation. On the one hand, the availability of NEPA's procedural instruments for ad hoc use by citizen groups has been the key force driving NEPA's implementation as far as it has come; and it continues to be the key force insuring that environmental consequences are actively considered in the daily operations of the agencies, and that new precedents are applied to other actions as appropriate rather than ignored. On the other hand, this grassroots approach has also fostered a serious danger of trivializing the more fundamental purposes of the law, limiting its application to environmentally controversial actions rather than to those causing the most significant impacts.

One does not attack a hydra by clubbing at one head at a time, or even at 30 of them; one does not change fundamental policies and priorities by wars of attrition against a few of their individual applications. Environmental interest groups can derive little satisfaction from delaying strip mining proposals on a few tracts in Montana on procedural grounds, until they are able to effectively challenge the policies upon which those proposals are based, such as the "Project Independence Blueprint." The delays may be useful or even necessary as tactics, but they are doomed to eventual frustration [6 ELR 50008] unless they are embedded in broader strategies of effective challenge to basic policy directions.

If NEPA is to achieve its goals, it must work effectively at the policy and programmatic levels of government, not merely in procedural applications to individual projects; and it must work from the basis of its own statutory goals, rather than merely from the ephemeral power base of ad hoc controversy.²⁸ A first step in this direction would be to foster the initiative already begun in applying NEPA to policy and "programmatic" actions; and to identify the best of these as models for emulation by other agencies.

The fundamental step that is necessary, however, and one which is so far lacking, is the development of guidelines for achieving NEPA's policy goals, which could be applied substantively to the evaluation of federal action proposals. This is not a novel idea — it was discussed in articulate terms by Professor Caldwell in 1973,²⁹ and there is a growing legal literature on the subject³⁰ — but so far the Council on Environmental Quality, which has the logical responsibility as well as the authority for this task,³¹ has not addressed it. I would suggest it as the single highest priority issue concerning NEPA implementation in the immediate future, far more important for the long term than recent battles over delegation of EIS responsibilities to state governments. Such guideline development would be a vital form of policy making in itself; and it would also provide a powerful new substantive basis for congressional and judicial as well as administrative review.

Once this effort has been undertaken, an appropriate sequal would be to re-implement § 103 of NEPA, which required determination of inconsistencies between NEPA and other statutory responsibilities, and proposal of measures to remedy such conflicts. This section was originally implemented in a wholly pro forma fashion under a tight deadline, before judicial review compelled more strenuous efforts at compliance,³² it would be a very different, and potentially a far more fruitful task in the context of guidelines for implementing § 101.

These proposals may seem idealistic; it is easy even to dismiss them as extraneous, from the perspective of many administrators' preoccupation with the evolving procedural requirements of § 102. They clearly have at least short-range political weaknesses: first, because of the recent ascendancy of the energy production lobby as a counterforce to the momentum of environmental policy making, but second, because it is the very ambiguity of § 101 that has permitted the maintenance of a coalition of support for NEPA from groups whose interests in "environmental quality" are quite varied.³³ Yet in a longer range perspective, it is NEPA's substantive policy that is its essence, and which provides the ultimate legitimacy for the burdens which its procedures impose upon the administrative process. Not every environmental change has earthshaking significance, despite its importance to individuals; but some do, and too many of these have generally eluded the framework of NEPA so far for want of coherent implementation of § 101. The continued maintenance of NEPA's procedures without its substance would be a Pyrrhic victory indeed.

Conclusion

NEPA's "action-forcing mechanisms" have been extraordinarily effective in raising the level of debate over the consequences of proposed actions, but not yet very effective in resolving these debates. They have forced procedural action throughout the federal executive to document the impacts of proposed actions, but much less substantive action to implement NEPA's policy goals. They have been successful beyond any apparent expectations of their authors in drawing attention to environmental problems and issues, in a vivid and case-by-case fashion, but they have not yet resulted in coherent and consistent environmental policy making. While major battles are fought between opposing interest groups over particular issues, major policy decisions continue to be made with only limited understanding or concern for long-term man-environment relationships.

NEPA's impact statement mechanism was, to borrow the punch line from a familiar anecdote, the two-by-four that got the government mule's attention. It remains to be seen, however, where that stubborn creature of habit will go from here.

A depressing but not unlikely scenario is that either by direct attack or by gradual "bureaucratic nibbling,"³⁴ various agencies and their supporters will do away with NEPA's action-forcing mechanisms and thus with the necessity of dealing with its substantive policy. NEPA's mandate poses a direct challenge to fundamental patterns of agency behavior; it may be difficult for such a challenge to survive indefinitely against such deeply ingrained norms. If it does, it might do so only because it has been proceduralized and trivialized to the point that its continued existence is irrelevant to the policics of decision making.³⁵

A more optimistic scenario, on the other hand, is that [6 ELR 50009] in the context of continuing environmental problems, the implementation of NEPA's procedures may prove to be merely the chaotic but necessary first step towards serious implementation of its policies. The preparation of impact statements by itself has not forced, and will not force this outcome; but the policy principles that NEPA espoused, and the climate of awareness that its "action-forcing provision" have fostered, may well prove it a profoundly important watershed in the philosophical basis for administrative decision making.

1. S. Rep. No. 91-296, 91st Cong., 1st Sess. 13 (1969).

2. Id.

3. Id. at 6, n. 2.

4. Pub. L. 91-190, 42 U.S.C. § 4321, ELR 41009.

5. 42 U.S.C. § 4332(2)(C), ELR 41009.

6. U.S. Council on Environmental Quality, "Guidelines: Preparation of Environmental Impact Statements," 38 Fed. Reg. 20550 (Aug. 1, 1973), 40 C.F.R. § 1500.1(A). See also Andrews, Environmental Policy and Administrative Change, Ch. 3 (in press).

7. See generally Anderson., NEPA in the Courts (1973).

8. The author appreciates the research assistance of Ms. Patience Drake, Mr. John Hall, and Mr. John Kelley in this section of the paper.

9. G. Bennington, S. Lubore, & J. Pfeffer, Resource and Land Investigations Program: Methodologies for Environmental Analysis, vol. 1 (1974).

10. For instance, § 101(B) of NEPA requireseach agency to "use all practicable means, consistent with other essential considerations of national policy," to

(1) Serve a trustee of the environment for succeeding generations;

(2) Assure for all Americans safe, healthful, productive, and pleasing surroundings;

(3) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) Preserve important aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity;

(5) Achieve a balance between population and resource use; and

(6) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

42 U.S.C. § 4331(b), ELR 41009.

11. Among these agencies are the departments of the Army, Air Force, Housing and Urban Development, Navy, and Transportation; the Bureaus of Land Management and Reclamation; the Environmental Protection Agency, the General Services Administration, the Nuclear Regulatory Commission, the Soil Conservation Service, and the Geological Survey.

12. Supra n. 9.

13. Cf. Baldwin, Environmental Impact Statements: An Evaluation of their Effects and Problems, Based on Experience in the United States, Apr. 12, 1974 and the testimony of Gerard P. McCarthy, representing the National Governors' Conference before the Subcomm on Fisheries and Wildlife Conservation and the Environment. House Merchant Marine and Fisheries Comm. Sept. 18, 1975.

14. See House Comm. on Science and Astronautics, Subcomm. on Science, Research and Development, Managing the Environment, Serial S (1968).

15. See Hufschmidt, Environmental Statements and Water Resources Planning in North Carolina (1974); and Curran & King, Jr., NEPA and a State's Role in Water Resources Management, 10 Water Res. Bull. 127-136 (Feb. 1974).

16. For instance, Institute of Ecology, A Scientific and Policy Review of the Final Environmental Impact Statement for the Prototype Oil Shale Leasing Program of the Department of the Interior (K. Fletcher & M. Baldwin, eds. 1974).

17. See H. Friesema & P. Culhane, Social Impacts, Politics, and the Environmental Impact Statement Process, Nat. Res. J. (forthcoming, May 1976).

18. Note, however, that a separate provision of the law (§ 102(2)(G)) did suggest this task. 42 U.S.C. § 4332(2)(G), ELR 41010.

19. R. Andrews, Agency Responses to NEPA: A Comparison and Implications, Nat. Res. J. (forthcoming, May 1976); see also Andrews, supra n. 6.

20. Id.; see also H. Ingram, Information Channels and Environmental Decisionmaking, 13 Nat. Res. J. 150-169 (1973).

21. D. Braybrooke & C. Lindblom, A Strategy of Decision (1963).

22. Andrews, supra n. 6, ch. 4; see also A. Maass, Public Investment Planning in the United States: An Analysis and Critique, 18 Pub. Policy 213-216 (1970).

23. C. Reich, The Law of the Planned Society, 75 Yale L.J. 1227-1270 (1966); see also T. Lowi, The End of Liberalism (1969).

24. F. Rourke, Bureaucracy, Politics, and Public Policy (1969).

25. Braybrooke & Lindblom, supra n. 21.

26. See, for instance, the McCarthy testimony, supra n. 13, and testimony of various federal agencies at the same oversight hearings.

27. H. Steck, NEPA After Five Years: A Second Look (paper prepared for delivery at the annual meeting of the Society for the Study of Social Problems, San Francisco, Aug. 1975) at 13.

28. R. Andrews, Environment and Bureaucracy: Progress and Prognosis, 6 J. Environ, Ed. 1-6 (1974). See also M. Olsen, The Logic of Collective Action (1968); and A. Downs, Up and Down With Ecology: The Issue Attention Cycle, Public Interest, Summer 1972, at 38-50.

29. L. Caldwell, The National Environmental Policy Act: Status and Accomplishments (Apr. 1973).

30. See especially F. Anderson, NEPA In the Courts, 303-311 (1973). See also Steck, supra n. 27, at 14-19, n. 85.

31. See Executive Order 11514, dated March 5, 1970 (ELR 54003), especially subsections 3(a) and 3(i).

32. In the statements submitted by the agencies in compliance with § 103, all but one agency simply stated categorically that NEPA posed no conflict with their other statutory mandates. The Department of Agriculture did identify a number of specific conflicts that might arise; some of those conflicts were in fact later ameliorated by other legislation, though without any reference to § 103 of NEPA as an antecedent. See Andrews, supra n. 6, ch. 5.

33. For instance, the Wilderness Preservation and National Parks groups; the air and water pollution control lobby; the hunting and fishing organizations; the outdoor recreation industry; and the groups concerned about the urban environment.

34. Cf. J. Sax, Defending the Environment (1970).

35. Efforts have already been made to weaken or elimitate NEPA's impact statement requirements, both generally and in arguments to exempt particular classes of actions; and one may expect such efforts to continue as long as NEPA has any effectiveness. Such efforts on fact provide an important indicator of the mechanism's value, since it is only worth a political battle if its presence or absence has politically significant consequences.

6 ELR 50001 | Environmental Law Reporter | copyright © 1976 | All rights reserved