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6 ELR 50014 | Environmental Law Reporter | copyright © 1976 | All rights reserved The Scientific Basis of NEPA — Is It Adequate?Richard Carpenter [6 ELR 50014]It is the thesis of this paper that the ultimate success of the National Environmental Policy Act (NEPA) is strongly dependent upon reasonably complete and timely scientific information. Implementation of NEPA requires scientific descriptions of environmental quality and productivity, and the essence of the environmental impact statement (EIS) is a capability to anticipate the environmental consequences of a proposed action. Prediction of ecosystem behavior includes both degradation from technological change and recovery or improvement due to pollution abatement. The state of knowledge in environmental sciences fundamental to NEPA is unsatisfactory compared to the magnitude of the management decisions being made and the values at stake. The uncertainties of descriptions and predictions in ecosystem analysis are greater than in other natural sciences but the expectations of legislators and administrators for complete, unambiguous, and verified information remain high. Some strategies are developing for optimizing decision making in the face of uncertainty and these can be useful in implementing NEPA. Just as science is important to NEPA, the Act has implications for science that have not been exploited. The concurrent effort in controlling environmental pollution (over the six years of NEPA) has concentrated research funding into work on air and water pollutant sources, transport, effects and abatement technology. The more comprehensive ecosystem studies have not been well supported. Historical and current "base line" information is lacking; e.g., there is nothing for ecological data akin to the U.S. Geological Survey or the Department of Agriculture's soils mapping. Much of the necessary work in environmental sciences is tedious and unattractive to investigators and is not rewarded by the career building systems of academia or research institutions. Nevertheless, those interested in the objectives of NEPA need not resign themselves to frustration and despair over the state of scientific knowledge. Enhanced use can be made of the data at hand. Interested parties can understand the limitations and uncertainties inherent in these fields of study. Opportunities for more efficient allocation of available research funds can be identified by a cooperative effort of government officials and the scientific community. The National Environmental Policy Act of 19691 states one of its purposes is "to enrich the understanding of the ecological systems and natural resources important to the nation." Its declaration of policy emphasizes repeatedly the goal of a balance between society and natural systems: "productivity harmony," "widest range of beneficial uses," "balance between population and resource use." The means of achieving this goal, as expressed in the Act, are clearly based in science: "a systematic, interdisciplinary approach;2 environmental impact assessment procedure;3 initiation and utilization of ecological information.4 The Council on Environmental Quality (CEQ) is to report on "the status and condition of the major natural, manmade, or altered environmental classes" and "current and forseeable trends…." The CEQ was also (until this function was transferred to the Environmental Protection Agency by Reorganization Plan No. 3 of 1970) "to conduct investigations, studies, surveys, research, and analyses relating to ecological systems and environmental quality."5 Thus, the action-forcing, procedural elements of the Act were to be concerned with, and undergirded by, a comprehensive knowledge of the environmental sciences. In the first six years of the Act, a profound and unanticipated change in bureaucratic procedures has been wrought by the EIS function and the Calvert Cliffs decision6 (ordering federal agencies to trade off environmental impacts against economic and social factors in a "finely tuned and systematic balancing analysis"). In contrast to this procedural development, the scientific basis of NEPA has been obscured and neglected. But what is happening to the environment? Progress has indeed been made because the gross and obvious wrongs are being righted without a great deal of controversy. As progress continues in environmental management, the comparison of marginal costs of protection with marginal benefits will become increasingly important. These comparisons require a detailed knowledge of ecosystem health and productivity which is not available today in many instances. In more subtle yet important problems a pattern is emerging of triumphs for environmentalists in questions of mechanical adherence to EIS procedure and defeats for the Environmental Protection Agency in court tests of enforcement.7 Both the failures of agency performance in environmental impact statements and the alleged inequities of regulations and standards have a root in the inadequacy of scientific information about the environment. At this time, in assessing the progress and future of the Act, it is important that those concerned do not preoccupy themselves with continued refinement of [6 ELR 50015] procedure to the exclusion of examining the state of scientific knowledge. Otherwise, an elegant administrative implementation of a keystone national policy may be so inadequately supported by facts and reasoning that the original objective of placing the full fair weight of environmental values on the decision-making scales is lost. Aside from the fascination with forcing mission-oriented, narrow-minded bureaucrats to considerations beyond their agency program, what other factors have worked to submerge consideration of the state of the environmental sciences? And what is that state today? I. Scientific Considerations in the Development of the Act During the years when the Act was being developed (1967-69), most of the testimony of scientists in congressional hearings was in support of the concept that man's activities were having impacts on nature in important and long-lasting ways that were ultimately detrimental to society. Despite the resilience and assimilative capacities of natural systems, they could be overwhelmed by technological changes and a concentrated, high-consumption civilization. Finite natural resources were contrasted with exponential rises in exploitation. Man's triumph over nature and his shields from its cruel laws, it was argued, are illusory and the sooner our actions conformed with the long term health of the environment, the better. These warnings from scientists were warmly received by politicians and citizens who were developing a visceral perception that all was not well with the highly technological society. Acceptance was increased by the omission of any mention of the costs and life style changes which would be necessary to accommodate and harmonize truly with nature. Nor was there recognition of how fragmentary and flimsy was the evidence that any specific activity of man could be related to a deterioration of the environment in a conventional cause-and-effect manner. The scientific community was not asked, and did not volunteer, the adequacy of its resources (trained manpower, money, facilities and institutions, theories and data bases) for substantively supporting the management decisions envisioned in the air and water pollution control laws and NEPA. The usual lip service was paid to research, discounted by those skeptical of self-serving requests of scientists for more money. In short, NEPA was passed in an emotional (if correct) attitude that change was necessary and that if the scientific community knew enough to warn society, it knew enough to diagnose and prescribe. Implementation of the Act began with little attention by government to the enhancement of ecological knowledge. II. Federal Support of Environmental Sciences The term environmental sciences is not particularly delimiting. Those sciences relevant to NEPA range from astronomy to zoology. The tendency in "grantsmanship" to color all proposals for research support to match the hue of currently popular federal policy made it possible to count up impressively large sums which were presumably dedicated to supporting the environmental quality programs. However, the amount of money going into ecosystem analysis (even broadly defined) is very small. Funding for the United States component of the International Biological Program in its entirety was $40 million over the years 1967-73 (of which only a part went for comprehensive biome and synthesis work). In 1974, an ad hoc CEQ Committee on Ecological Research found ecological research efforts and monitoring and survey activities scattered throughout the government with little coordination or definition of priorities.8 "Without a Federal focus, response to problems which require ecological information or capability will continue to be fragmented, costly, redundant, and reflexive rather than strategic, efficient, and contributory to national goals and productivity."9 Using a broad definition of ecological research, a total expenditure of $182 million was calculated for fiscal year (FY) 1973.10 The distribution of funding sources among the agencies is shown below. A more restrictive definition is used in Special Analysis "Q" of the FY 1976 Federal Budget to show outlays for "ecological and other basic environmental research" of $88.8 million in FY 1974, $100.7 million in FY 1975, and $114.9 million in FY 1976.
An attempt was made by the EPA office of Research and Development to overcome this handicap to rational management by establishing a National Environmental Research Center at Corvallis, Oregon, with the theme of ecology. In a recent reorganization, this theme concept has been abandoned. The National Science Foundation continues to support basic research in ecology and this is a valuable source of coordination and funding for the sciences. But NEPA intended an augmentation of ecological knowledge beyond that which would be expected from the NSF where competition with other sciences for scarce dollars would limit growth. Some special recognition of the needs of ecology must be given by the Congress and the Executive Branch. The authorization in NEPA is clear. Its implementation by CEQ might never have materialized since the Council was never viewed as an operating agency, but EPA has had the opportunity for four years and there is little to show for it. Ecology has not yet achieved a predictive capability to the extent that other natural sciences such as chemistry and physics have. There are few established "principles" of ecology upon which to construct a prediction. Most importantly, ecology by its very definition involves such a broad and complex number of things and interactions that adequate knowledge for practical application is very difficult to obtain. The synthesis of observations and data into a complete and accurate description of a natural system to be impacted by technology, and the prediction of some future state of that system is a science (perhaps art) practiced by a very few and not satisfactorily. All science is probabilistic, but ecology is much closer to the social sciences in terms of uncertainties and random processes than it is to other natural sciences. The findings of ecosystem analysis are site specific; there is little opportunity for generalization or for transfer of conclusions reached in one geographical location to application in another. The success of application of ecological principles in managed ecosystems of agriculture, forestry, fisheries and wildlife has been due to great simplifications. These successes should not invite analogies to natural ecosystems and the possibilities for their precise management. Legislators and administrators should be advised of these characteristics of ecology and not encouraged to expect now or in the near future predictions with high reliability and complete detail. Basic monitoring and survey data which would be valuable even in simple extrapolations of "before and after" analyses are generally lacking. Most EIS's do not contain ecosystem data; there are discussions of individual species or parameters of physical environmental quality but no descriptions of communities, productivity, etc. The delegation of the preparation of EIS's to local and state agencies in federal grant programs (e.g., Housing and Urban Development) will further weaken the substantive scientific content of the assessment. For many areas there are no historical data. In the early 1900's the suggestion of a nationwide Botanical Survey was made but never carried out. The concept of an Ecological Survey has been revived by CEQ recently but never fully developed into a proposal for budgetary support. Good ecological information is most often found where indigenous ecologists have stayed at the task for a number of years, even decades. It is impossible to move a team of scientists into a potentially impacted area and in a short time generate data valuable to the analysis intended by NEPA. Time-series of measurements of the most ordinary water quality characteristics are sparse and fragmented. The basis for the expected "finely tuned and systematic balancing analysis" is utterly nonexistent in most instances. Despite the dearth of principles, coherent theories, cause-effect relationships, descriptive data and empirical information on trends, attempts are made to deal with the complexities of environmental quality problems via mathematical models. The system to be modeled must be defined large enough to include all the important components and interactions but not so large as to be unworkable. Assumptions must simplify the real world to manageable dimensions but not predetermine the result (the fate of the first Club of Rome effort). The intriguing capabilities of computers and their software must not replace common sense in constructing and using the model (past practice has not honored this caveat in many instances). Given these constraints, it is easy to understand the general disappointment with simulation modeling in implementing NEPA. The information valuable to the development of most EIS's has to do with the adverse consequences to the environment of some proposed technological change or major manipulation of the landscape. Equally important is the ability to judge the impacts of projects and programs designed to restore environmental quality, rehabilitate the landscape, or abate pollution. Decision makers wish to compare the costs of these efforts to the benefits as expressed in enhanced ecosystem health and productivity. Recently, the findings of a report14 prepared for the National Commission on Water Quality described the state of the art of aquatic ecosystem analysis and found [6 ELR 50018] it applicable not only to water but to ecosystems generally. The following discussion is based on that document. An ecosystem consists of organisms and their interactions in and with a bounded physical-chemical environment. It may be a lake or a watershed or a smaller subsystem such as a rock ledge. An ecosystem is described in terms of structure (species and their distribution) and function (transfer of matter and energy). Table 3 gives some ecosystem descriptors.
Often, no biological data is available in heavily polluted areas and an assumption must be made of the types of organisms which would be present in the absence of wastes. Organism lists may range from Audubon Society counts to (rarely) extensive spatial, temporal and quantitative documentation. Ecosystem function data may be for single organisms or in terms of indicator species or productivity for the whole. In any event, the system is described to the best extent possible and an assessment is made. The sophistication (and thus the reliability for decision-making purposes) of the assessment increases with increasing information. For example, in assessing changes in aquatic ecosystems, five levels of methodology are possible. At present, with the generally disappointing lack of input data and skepticism as to whether models simulate reality, it is still possible to be helpful to the layman decision maker. What is needed is a strategy to adapt the assessment to the data and be forthright as to the confidence which can be placed in the analysis. To this end it is important to include a statement as to the value of additional experimental or monitoring work to the improvement of the assessment. In some instances a relatively small effort could greatly enhance the reliability and certainty of the prediction. A good ecosystem analysis is also a good planning device for further ecological research. In summary, NEPA will be of better use to society only if the scientific basis for its implementation is substantially improved. The neglect of environmental science, particularly ecosystem analysis, may result in a blizzard of paper fulfilling legal and administrative procedures without any further understanding of how "man and nature can exist in productive harmony." IV. What is Reasonably Required? The foregoing discussion in this paper leads to the question of what could and what should be required of EIS's in terms of ecological information. Given the ecological scope and character of many environmental management decisions and accepting the paucity of data and models, what is a realistic expectation of those who analyze environmental impacts? The CEQ guidelines are necessarily general and related to form. There is no demand for substance. As experience has been gained it would appear possible to construct special guidelines for different types of projects: i.e., the impact assessment requirements would be different for offshore oil leases, airports, or water resource programs. A recognition in the EIS that few ecosystems are unperturbed at the outset would be helpful. The new project in question might introduce different ecological impacts which counter or exacerbate manmade changes already present. It is true that there is evidence for the principle that all interferences with the natural system are deleterious; but where impacts exist, an additional change may be an opportunity to improve the net situation. For example, the fishing industry is not perfect and an impact analysis on OCS oil recovery might review the adverse impacts of present fishing practices in the area in question. All presentuses of the environment are to be judged in terms of its long range productivity. A "good" EIS does not necessarily contain an exhaustive analysis of the ecosystem. It is always possible for a critic to find some additional questions to ask. The guidelines should suggest a reasonable limit dictated by the fact that the resources for preparation of EIS's are limited and should be allocated to support the most important and far-reaching decisions at any one time. The scientific community bears the responsibility for [6 ELR 50019] setting forth its capabilities and limitations. A joint effort should be undertaken with the decision makers in understanding their needs and applying presently available knowledge. It is inappropriate merely to plead for more research money and excuse ecology as a young science. It has been thrust into the debate of urgent national issues. Furthermore, a great deal of assistance can be provided with the present state of the art.
On their own initiative, government agencies should take action to 1) improve the use of ecological information in the preparation of EIS's, 2) allocate scarce ecosystem analysis and expert judgmental competence to assure full assistance of the most important programs to be assessed, 3) accelerate research and training programs in the environmental sciences which undergird NEPA, and 4) begin regular follow-up assessments of environmental impact after projects have been implemented to provide a measure of the accuracy of predictions and an improved basis for future EIS's in similar situations. 1. 42 U.S.C. §§ 4321 et seq., ELR 41009. 2. NEPA § 102(2)(A), 42 U.S.C. § 4332(2)(A), ELR 41009. 3. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR 41009. 4. NEPA § 102(2)(G), 42 U.S.C. § 4332(2)(G), ELR 41010. 5. NEPA § 204(5), 42 U.S.C. § 4344(5), ELR 41011. 6. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971). 7. F.g., Ethyl Corp. v. EPA, 5 ELR 20096 (D.C. Cir. Jan. 28, 1975), vacated pending rehearing en banc 5 ELR 20450 (D.C. Cir. Mar. 17, 1975). 8. Committee on Ecological Research, Council on Environmental Quality and Federal Council for Science and Technology, The Role of Ecology in the Federal Government (1974). 9. Id. 10. Id. at 38. The table is reproduced infra. 11. Id. at 43. 12. Id. at 38. 13. Text accompanying n. 5, supra. 14. National Research Council/The Institute of Ecology Joint Pan on Ecosystem Analysis, Methods for Aquatic Ecosystems Analysis, A Report to the National Commission on Water Quality (1975). 15. Id. at 7. 16. Id. at 27. 6 ELR 50014 | Environmental Law Reporter | copyright © 1976 | All rights reserved |