The National Environmental Policy Act (NEPA)¹ has been heralded as the greatest piece of legislation in recent history for improving the environment. Some critics, However, believe it is vastly over-rated and accomplishes little more than allowing a few lawyers to go to the courts and delay actions needed in the best intersest of the nation as a whole. Between these views lies a balanced appraisal of how NEPA has worked in its first six years. And one of its most impressive accomplishments is the way it has led to greater public perception of environmental issues.

When NEPA first went into operation in early 1970, most attention centered on how the Council on Environmental Quality might influence an Administration that up until then had done very little for the environment. Also, those of us on the Council of Environmental Quality hoped, as had the congressional framers of NEPA, that it would force the executive agencies to build environmental concerns into decision making at and early point, although no one had any great expectation that this would happen overnight.

By the end of 1970, it was evident that neither of these things were occurring. Yet NEPA was having a major effect in focusing public attention on environmental issues. Much of this citizen impact was due to the environmental impact statement (EIS) process which was the sleeper in the legislation.The EIS provision had not been discussed in the Senate Interior committee, and was inserted into the bill as § 102(2)(C) at the final moment, and unsuspectingly passed without major debate.

Except for the provision's authors, Prof. Lynton Caldwell of the University of Indiana, Senate Interior Committee counsel William Van Ness, and staff member Daniel Dreyfus, few people foresaw the consequences of § 102(2)(C). Looking bank over the articles which I wrote then as environment editor of The Christian Science Monitor, I note that I, too, missed its significance.

The record shows that only Rep. William H. Harsha (R.-Ohio) voiced a prediction on the impact of § 102. Rep. Harsha, ranking minority momber of the Public Works Committee, said in House debate on the conference report:

[I]f it becomes law, I am convinced that it-would be so wide-sweeping as to involve every branch of the government, every committee of Congress, every agency, and every program of the nation. This is such an important matter that I am convinced that we here should consider it very, very carefully and make a clear record as to exactly the direction in which we wish the various elements of our government to move. I regret that so important a matter is being that handled in so light a manner.²

But in the rush to adjourn for Christmas, the House approved the conference report by voice vote.

Although other parts of NEPA have served to advance public perception of environmental issues, the focal point has been the EIS provision.

Information Gains

Probably NEPA's formost contribution to public perception has been forcing federal agencies to provide information about major actions affecting the environment. Credit must also go to the courts and to environmental lawyers and citizen organizations. Without the lawsuits, and strict interpretation of NEPA by many courts, much less information on environmental issues would have been made public.

A good case in point is the Alaska oil pipeline. Because of the requirement for an environmental impact statement, the consortium of oil companies and the Department of Interior were forced to make extensive studies, and to make the results of these studies public. Thus the public was alerted to problems such as possible interference with caribou migration, earthquake dangers, the problems of oil spills in Prince William Sound or while transporting oil along the coastline of the Pacific Ocean or in Puget Sound, and the hazards of burying pipe in permafrost.

Awareness of Alternatives

Linked to providing information is the requirement that the responsible official must consider alternatives to proposed major federal actions significantly affecting the quality of the human environment. In the Alaska pipeline, the issue was thus enlarged to consider an alternative route through Canada, or use of rail or submarine, or the alternative of placing the pipeline above ground.

Power to the Citizen

The National Environmental Policy Act has furnished the opportunity for the citizen to bring environmental issues into court either by himself, or through citizen environmental organizations such as the Natural Resources Defense Council, the Sierra Club Legal Defense Fund, or Environmental Defense Fund. Although for the most part the issues have been procedural rather than substantive, the effect has been to give citizens a sense of being able to do something about environmental quality.

An example of this new opportunity for the citizen is the SCRAP case³ in which some law students and their professors at George Weshington University succeeded in giving national attention to the recycling issue. They [6 ELR 50011] brought suit against the Interstate Commerce Commission (ICC) for failing to prepare an environmental impact statement and consider secondary environmental effects when the ICC issued a rate increase for hauling freight by rail. The students said that by not allowing reduced rates for recycled materials, the ICC was contributing to harmful environmental effects such as littering, dumping, and incineration of solid wastes, and thereby adding to pollution.

The case eventually went twice to the Supreme Court, where the students lost. The first time, Solicitor General Erwin Griswold opened his argument before the Court by saying: "Your honors, the question before this court is whether seven law students can bring the railways of this country to a halt."

Understanding of Ecological Relationships

The SCRAP case was also useful for showing the underlying ecological relationship — that if paper could not be shipped for recycling, it had to be burned, or dumped, causing pollution. The studies for the Alaska oil pipeline impact statement revealed the fragile nature of the arctic ecosystems, known to scientific experts but not adequately considered by the pipeline engineers, and virdtually unknown to the public or to the federal government officials who had been urged in 1969 to make a quick decision granting the first construction permits. The studies done by the Interior Department's Bureau of Land Management for an EIS covering the annual Las Vegas-Barstow motorcycle race across the Mojave desert revealed how the vegetation was being impacted by these races. The rate permit was denied this year as a direct result of this assessment. And in the area of nuclear power plants, the combined ecological impacts of a series of nuclear plants being planned for Lake Michigan and Lake Ontario, as uncovered by the Atomic Energy Commission and by public comments on the impact statements done for individual plants, has brought a new perspective into the public debate over the plants.

Secondary or Indirect Effects of an Action

NEPA has in many cases served to uncover the fact that a proposed action may have extensive impact on the environment not apparent in the initial proposal. One of the best examples of this occurred while oversight of the environmental impact statements was still developing at the Council on Environmental Quality. The case concerned a vehicle toll bridge which was to be built across San Francisco Bay five miles south of the present San Francisco-Oakland Bay Bridge. No federal funds were involved. No environmental impact statement was prepared until the spring of 1970 when an alert official in the Department of Transportation (DOT) discovered that an application for a permit to build the bridge had been submitted to the U.S. Coast Guard (a part of DOT) by the California State Division of Bay Toll Crossings. The initial Coast Guard reaction was in effect, "What's an Environmental Impact Statement?" But the DOT convinced them to file one anyway, because the issuing of a bridge permit could be construed as a "major action significantly affecting the human environment." The EIS was not very extensive: it consisted only of six pages. It started by saying that no federal funds were involved in the bridge or its immediate approaches, that a public hearing had been held, that comments were received from the public or other agencies, that the U.S. Bureau of Sport Fisheries and Wildlife had advised that the design of the bridge would minimize damage to the fish and wildlife resources of the Bay, and that the California Air Resources Board had stated that the bridge would have little effect on general air pollution in the Bay area. Everything seemed to be in order.

Then came a section about "Adverse environmental effects which cannot be avoided should the proposal be implemented." The EIS said:

The effects which may result directly from the bridge are considered to be minor and action is planned by the applicant to further minimize these effects. However, the commitment here may not be to the bridge link alone, but implicitly to additional freeways that may be generated by it.

The EIS went on to note that a decision to proceed before the Bay Area Rapid Transit (BART) system was fully operational might be detrimental to this intermodal approach to transportation needs. The bridge was an implicit commitment to additional freeways which might preclude the development of a balanced transportation system. The Southern Crossing and its resulting freeways would increase automobile traffic in San Francisco with its limited street and parking capacity with likely aesthetic and community effects. And, the EIS noted, a major expansion of the freeway system would also affect the future urbanization in the area and growth patterns.

The section of the EIS on "alternatives to the proposed action" suggested the possibility of not building the bridge.It said the State and the Federal Highway Administration considered the bridge vital to the bay area highway system. But then it noted that the BART system, if successful, could provide an alternative to the bridge and related highway systems. Another paragraph balanced short term uses against long term productivity, concluding that although it had been argued that the bridge would move population and commerce across the bay, it would also beget lateral freeways not yet planned that would require use of shoreline. Thus the issue that had to be faced was whether or not a commitment should be made now affecting the people's future.

This environmental impact statement was a key factor in bringing pressure to bear to reverse the decision to build the Southern Crossing. Newspaper articles and editorials were written. The Council on Environmental Quality sent a letter to Secretary of Transportation John A. Volpe strongly urging that action on the permit be deferred. It was, Meanwhile, the San Mateo County Board of Supervisors reversed an earlier motion of support for the bridge. Governor Reagan announced after a state cabinet meeting that he was reviewing previous support for the Southern Crossing. The State Assembly voted 53-7 against the bridge. The matter was finally put to a statewide election, and the voters turned it down.

Opening up the Planning Process

Many agencies' NEPA guidelines require public hearings to be held on the draft environmental impact statements. [6 ELR 50012] This requirement has resulted in envirnmental issues coming to public attention at an earlier stage than ever before, and has allowed public comments on the planning process. Some agencies have gove beyond this. The Forest Service has changed its planning practices noticeably due to NEPA's influence. Citizens in local areas are now invited to provide ideas and to help identify issues and alternatives early in the planning process. The Forest Service has also undertaken studies of several controversial areas such as the Bitterroot and Monongahela National Forests, with the results being made available to help in the planning process.

Another byproduct of NEPA has been greater openness in the planning process and increased public participation in the consideration of social implications of major projects. Now, for instance, when the Department of the Interior considers a major offshore oil tract sale, or lease of lands for coal strip development, it must include consideration of the impacts of the oil or coal developments on the surrounding communities, in terms of added population, congestion, transportation, housing, water supply, etc. These issues have been subjects for discussions by the public at hearings on the environmental impact statements. The National Park Service, in its master planning for Yosemite National Park — even before an environmental impact statement has been written — has held hearings across the nation to open the planning process to citizens. At these informal hearings, citizens are briefed on the problems and options and can write statements or give opinions as to what should be done.

NEPA as a Symbol for Improving the Environment

Just as NEPA provided a new institutional base for questioning government actions in the courts, it has provided the institutional base for publicizing the cause of a better environment. Many cartoons have been drawn concerning NEPA. Many dinner speakers have sought to loosen up an audience by repeating the story about how God told Moses He had some good news and some bad news. The good news was that He had picked Moses to lead the Children of israel out of captivity by parting the Red Sea. The bad news was that first Moses was going to have to prepare an environmental impact statement on his proposed actions.

With references, such as this; with summary articles on NEPA's progress during the first year, or first four years, in the New York Times and in news magazines; with editorials about how NEPA has been used or abused, or been a target for amendmant by Congress; NEPA and the environmental impact statement procedure have become part of the jargon of our era.

Opening New Areas for Public Awareness

Little-known issues have received national attention through environmental impact statements, and especially from court decisions regarding those statements. And the environmental spectrum has been broadened. For instance, the issue of potential investors' rights to information on the environmental actions of corporations was little thought about until the Natural Resources Defense Council sued the Securities and Exchange Commission. NRDC charged that SEC had to comply with a little known part of NEPA, § 103,which required all agencies of the federal government to review their regulations, policies and procedures and "propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this Act."⁴

Specifically, the Executive Order implementing NEPA had required all agencies to "initiate measures needed to direct their policies, plans and programs so as to meet national environmental goals," and directed the agencies to "develop programs and measures to protect and enhance environmental quality."⁵ When SEC did nothing, NRDC filed a petition requesting that the Commission implement the NEPA mandate. NRDC wanted the SEC to require companies which file with the agency to describe the nature and extent of their activities that have resulted or might result in pollution or injury to natural areas and resources. U.S. District Judge Charles R. Richey required the SEC to hold a rule-making hearing on the issue.⁶ And although this did not achieve all that NRDC wanted, the SEC has, as a result of the hearing, proposed to require additional environmental information disclosure by companies filing with the Commission. Judge Richey brought the issue into focus by stating in his opinion: "There are many socalled 'ethical investors' in this country who want to invest their assets in firms which are concerned about and acting on environmental problems of the nation. This attitude may be based purely upon a concern for the environment; but it may also proceed from the recognition that awareness of and sensitivity to environmental problems is the mark of intelligent management."⁷

Increased Public Perception of Factors Required to Balance Environmental Costs and Economic Benefits

The idea of cost/benefit analysis within the NEPA impact statement was given a boost in the landmark Calvert Cliffs case when D.C. Circuit Court of Appeals Judge J. Skelly Wright ruled that: "NEPA mandates a case-by-case balancing judgment on the part of federal agencies. In each individual case, the particular economic and technical benefits of planned action must be assessed and then weighted against environmental costs."⁸ Also, the preparation of environmental impact statements for many Corps of Engineers projects made the public aware of questionable cost/benefit economics which they became public issues.

NEPA as Focus for "Anti-Environment" Forces

Just as NEPA has been the institutiona framework for bringing environmental issues into the national public spotlight, it has also been used by opponents as a focus for the harm to the nation allegedly being done in the name of environmental good. NEPA, and especially the [6 ELR 50013] environmental impact statements, are blamed for delays in development projects, which, the opponents claim, lead to unemployment or exacerbate energy shortages. Some politicians have charged that if it were not for NEPA we could have averted the energy crisis because we would already have had Alaska oil. (They neglect to say that the Department of Interior now admits that if the pipeline permit had been granted when originally requested in 1969, it would have been a disaster, because not enough research had been done on how and where to build it.)

The business "public" has also become aware that the environmental impact statement process can be used in the courts to counter environmental tegislation. In a number of suits, industrial plaintiffs have argued that the Environmental Protection Agency violated NEPA when it did not formulate and publish an environmental impact statement in conjunction with a particular regulatory action.⁹

Increased Public Perception of Environmental Issues Through Council on Environmental Quality Activities

In addition to the environmental impact statement, provision of NEPA, the Act's § 202 establishing the Council on Environmental Quality in the Executive Office of the President, and § 201 requiring the President to transmit to Congress an annual "Environmental Quality Report" have contributed to public perception of issues in ways that are not quantifiable.

The annual reports have been judged extremely useful by schools, environmental groups, industry and citizens. More than 200,000 copies of the five annual reports to date have been printed and distributed by CEQ or sold byd the Government Printing Office.

In addition, the Council on Environmental Quality has produced or commissioned special reports which have added to public perception of environmental issues. These reports have concerned themselves with ocean dumping, toxic substances, land use, the taking issue, urban sprawl, offshore oil and gas, energy soncervation, offshore huclear power plants, leisure homes and recreational development, and the costs of urban sprawl. And during the past year CEQ has conducted public hearings on continental shelf oil development, and on the ERDA energy program.

In sum, it appears that the information-gathering and disseminating functions of NEPA have to date been its most substantial contribution. Given the costs of acquiring information, and bureaucrats' constitutional aversion to sharing data with the public, this is no mean achievement.

1. 42 U.S.C. §§ 4321 et seq. ELR 41009.

2. 115 Cong. Rec., Dec. 23, 1969.

3. Students Challenging Regulatory Agency Procedures v. United States, 346 F. Supp. 189, 2 ELR 20486 (D.D.C. 1972), rev'd and remanded sub nom. United States v. SCRAP, 412 U.S. 669, 3 ELR 20536 (U.S. 1973), on remand, 371 F. Supp. 1291, 4 ELR 20267 (D.D.C. 1974), rev'd sub nom. Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289, 5 ELR 20418 (U.S. June 24, 1975).

4. See Comment, Corporate Disclosure of Environmental Information: The SEC Announces a Public Proceeding, 5 ELR 10039 (Mar. 1975).

5. E.O. 11514, ELR 45003 (Mar. 5, 1970).

6. Natural Resources Defense Council v. SEC, 389 F. Supp. 689, 5 ELR 20074 (D.D.C. Dec. 9, 1974). See Comment, SEC's New Corporate Disclosure Rules Hinge on Overly Narrow Reading of Both Its Law and NEPA, 6 ELR 10033 (Feb. 1976).

7. 389 F. Supp. at 700, 5 ELR at 20078.

8. Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 449 F.2d 1109, 1123, 1 ELR 20346, 20353 (D.C. Cir. 1971).

9. See e.g., Appalachian Power Co. v. EPA, 477 F.2d 495, 3 ELR 20310 (4th Cir. 1973).

6 ELR 50010 | Environmental Law Reporter | copyright © 1976 | All rights reserved