Reorganization: Council on Environmental Quality Emerges Stronger, Review of Federal Agencies Continues

In the proposed reorganization of his Executive Office,¹ President Carter rejected the suggestions of his Office of Management and Budget (OMB) reorganization team to abolish or greatly de-emphasize the importance of the Council on Environmental Quality (CEQ). Mr. Carter decided instead to keep CEQ in its position of environmental advisor to the President and coordinator of government implementation of the National Environmental Policy Act (NEPA). This action preserves CEQ's basic integrity even though some administrative functions were lost and represents a clear victory for those opposed to derogation of environmental considerations in the highest levels of executive decision making. The decision also seems to vindicate those who expected the President to have greater sensitivity than his predecessors to protection of the environment. In addition, because of the visible political support for CEQ generated² by the threatened destruction of its present role and the important new tasks that have been assigned to it by the President in his Environmental Message,³ the Council has actually emerged in a stronger position and promises to play a very significant part in the setting of federal environmental policy.

Creation of the Council

The Council on Environmental Quality was brought into being and given specific duties by Title II of NEPA.⁴ It has sometimes been compared in function to the Council of Economic Advisors,⁵ but CEQ in fact has much broader substantive authority and has played a far larger role in interactions with the public on presidential policy. Since its creation in 1970, CEQ has carried out three major functions: NEPA oversight, research and public education, and furnishing advice to the President.

CEQ's Roles

The agency's NEPA oversight role, which is specifically mandated by NEPA,⁶ consists of analyzing trends in the environment and government programs to determine if they are contributing to NEPA's goals, reviewing environmental impact statements (EISs), and supervising line agency compliance with NEPA. In its seven plus years of activity, CEQ has been successful in cajoling federal agencies to account for the environmental effects of their actions, primarily through its Guidelines for NEPA compliance.⁷ The Guidelines, however, are not mandatory [7 ELR 10169] and not all courts have required agencies to comply with all their directives.⁸ On the other hand, CEQ's comments from reviewing environmental impact statements for their compliance with NEPA have, in at least one instance, been dispositive of whether a federal project should be enjoined pending compliance with NEPA.⁹ Besides its Guidelines, CEQ has also made extensive use of memoranda to government agencies to discuss court decisions and legal developments regarding NEPA compliance. Although not mandated, the memoranda nonetheless are useful tools to guide government agencies.¹⁰

For a number of reasons, the NEPA oversight role has had limitations. Because CEQ has not had any enforceable legal authority, the courts have had to provide the substantive legal strength to the agency's NEPA compliance directives. But CEQ has consistently chosen to argue for environmental values on an interagency level, perceiving this role as being more effective than seeking the authority to block federal actions which are particularly harmful to the environment.¹¹

Small staff size at CEQ has created two other problems. As the recipient of all agency environmental impact statements for final review, CEQ is usually able to review only the most controversial and broadly based of the tremendous number of EISs it receives.¹² Another problem that has been widely noted is that CEQ has not been able to appraise government programs in light of their contribution to the broad substantive goals found in § 101 of NEPA, a task mandated for the Council but one which it has not had time to do.¹³

CEQ's second role of research and public information has likewise been marked by some successes and a number of still unattained goals. Notwithstanding its small staff, CEQ has produced many reports and studies that have been and will continue to be very useful.¹⁴ Yet this research work has been criticized for being too policy oriented as well as for providing incomplete information on related research in other branches of the federal government.¹⁵ Again, the cause of these complaints can be attributed not only to lack of staff but also to a misconception of CEQ's function in this area, which is to develop broad policy initiatives; detailed studies are often better left to program agencies such as the Environmental Protection Agency (EPA) or the Department of the Interior. The second major element ofthis role is CEQ's annual report on environmental quality. While a number of these reports have been hailed as being very comprehensive and of high quality, others have been criticized as failing to set out policies or to look to future developments.¹⁶

The most sensitive role for CEQ has been that of advisor to the President on environmental matters. Although location in the Executive Office of the President (EOP) is a tremendous advantage in terms of presidential access, CEQ's effectiveness will must depend on the President's proclivities. In its early days under President Nixon, which coincided with the dawn of political concern for the environment, CEQ had an enormous role in the 1971-73 environmental messages and legislative programs. Other events soon eclipsed this early presidential activism, however.

Under Nixon's successor, CEQ had greater access to the President but was harmstrung by a lack of interest in environmental concerns in the Oval Office. CEQ is simply one of many groups competing for presidential attention. In addition, CEQ had to compete with the Office of Management and Budget which coordinates all legislative and regulatory initiatives for the executive branch. As a consequence, CEQ tended to take its concerns directly to the public. While it remained open to field public inquiries and attempted to act as some sort of public ombudsman for the environment, CEQ continued to play the role of a neutral advisor within the upper councils of government when the opportunity presented itself. A further reason for CEQ's isolation was the gradual waning of the highly visible momentum of the environmental movement as its glow wore off and strong laws were passed in the early 1970s. What remained was the trench warfare of administratively consolidating hard-won legislative gains. This task seemed more suited to the line agencies than to a small, broadly oriented presidential advisor.

Changes Under the Carter Administration

President Carter was elected with the help of strong, active environmentalist support, and his expressed sensitivity to environmental concerns led many to anticipate a rejuvenation for CEQ. Indeed, the first few months of the Carter presidency lent substance to this anticipation. The Carter appointees to the Council are well known and active environmental advocates.¹⁷ CEQ [7 ELR 10170] played a major coordinating role in developing the reevaluation of water resource projects, and the President's Environmental Message¹⁸ was essentially the Council's work. In addition, in late May, Charles Warren, the Chairman of CEQ, as well as Douglas Costle, the Administrator of EPA, began regular attendance at meetings of the President's Cabinet.

It was with much dismay then that environmental groups learned of the threatened downgrading of CEQ by the OMB team charged with reorganizing the Executive Office of the President. Although the full analysis was never made public, the reorganization group favored either abolishing CEQ or moving it to a line agency such as EPA or the Interior Department. Other options included taking away the NEPA oversight role or simply cutting back staff to fulfill the President's promise of cutting the swollen White House bureaucracy. Choosing either of the first two options would have been a clear signal that the Carter Administration no longer perceived the environment with great concern and would have implicitly contradicted the Environmental Message delivered just a short time before which emphasized the overriding and pervasive importance of environmental considerations to the federal government. Taking away the NEPA oversight role would have meant the loss to CEQ of its most important and successful statutory role. Simply cutting back the staff was the least unattractive of the seriously considered alternatives, but there apparently was no serious thought given to actually increasing the staff of CEQ in light of the new duties given the Council in the President's Environmental Message. It may well the that the symbolism of cutting back — on anything — rather than a substantive analysis of an agency's operation was the only guiding star in the OMB reorganization team's firmament.

Reorganization

In announcing his reorganization plan, President Carter said that CEQ "should remain in the EOP as an environmental advisor to the President."¹⁹ The option chosen was simply to abolish or move eight of 40 authorized positions, and with this staff cut went several relatively less important functions. The administrative aspects of receipt and handling the environmental impact statements, as well as routine review, has been moved to EPA. Presumably, however, CEQ still retains the responsibility for assuring that the EISs comply with NEPA. In addition, EPA will take over CEQ's evaluation responsibilities under the Federal Non-Nuclear Energy Research and Development Act.²⁰ Finally, CEQ will continue to edit and publish the annual report, but first drafts of the sections will be written by other government agencies.

The main aspect of the reorganization plan was the decision to keep the Council in the Executive Office. CEQ will continue to have the opportunity for direct access to high-level policy making rather than having first to go through a departmental maze.²¹ In many respects, the role of the Council may also in fact have been strengthened. The intense lobbying from Congress and from environmental groups over the threatened demotion or destruction of CEQ served as a solid education to the President and to OMB that CEQ cannot be regarded lightly. The impact of this effort can be seen not only in the President's specifically bestowing the label of "environmental advisor to the President" on CEQ but also in the remarks of OMB chief Bert Lance that the reorganization "will in no way downgrade the importance of the Council in the development of the Administration's environmental policies. By sharpening and focusing this role, we believe that the Council can be more effective in formulating policy at the Executive level."²² In the long run, however, the effectiveness of CEQ as the President's advisor will depend upon the chief executive's continued interest.

Because CEQ will continue to operate with a staff shortage, the agency's research role will continue to be less than it could be. CEQ's Annual Report may suffer because the remaining final editing responsibility may not be sufficient to revive less-than-fully analytical first drafts from line agencies where the rule often is to emphasize successes and ignore everything else. In addition, the criticisms that the annual report is neither farsighted nor expressive of policy may become more widespread if CEQ is unable to substantively direct the publication.

In its NEPA oversight role, CEQ will continue to work closely with the rest of the government on environmental impact statements, but it will continue to be limited to substantive review of only the more significant ones. More importantly, however, pursuant to the Environmental Message, CEQ will be developing mandatory regulations for NEPA compliance in the federal government.²³ The regulations will be legally binding on line agencies whereas the Guidelines were only advisory. This new authority foretells an especially strong role for CEQ in coordinating agency NEPA compliance throughout the government. Unfortunately, appraisal of government programs for compliance with the NEPA § 101 goals may continue to be a largely unattained goal.²⁴

[7 ELR 10171]

Other Reorganization

After completing work on the EOP, the OMB reorganization team will move on to the entire federal bureaucracy.²⁵ A number of the departments and agencies have already begun their own internal reorganizations,²⁶ and environmental advocates have been placed in key slots.²⁷ In addition, there doubtless will be serious consideration of a proposal to change the Interior Department to a more comprehensive department of the environment or department of natural resources possibly incorporating EPA, the Army Corps of Engineers, the Forest Service (presently part of the Department of Agriculture) and the National Oceanic and Atmospheric Administration (presently part of the Department of Commerce). Regardless of future events, the whole reorganization effort has at least cemented the essential notion that environmental considerations are a necessary part of government decision making, as well as reiterating the important position that CEQ must play within the White House.

1. Reorganization Plan No. 1 of 1977, 13 WEEKLY COMP. OF PRES. DOC. 1007 (July 15, 1977).

2. From the Hill, 62 Representatives and 11 Senators sent letters regarding CEQ. The Conservation Foundation sent two letters signed by 43 groups ranging from the AFL-CIO and the National Academy of Sciences to the World Wildlife Fund and Zero Population Growth. Nine authors of extensive writings on NEPA also wrote the President.

3. The Environment — President's Message to Congress, May 23, 1977, 7 ELR 50057 (July 1977). See also Comment, The President's Environmental Message: Better Regulatory Coordination, More Vigorous Enforcement, 7 ELR 10016 (July 1977).

4. Sections 201-09, as amended, 42 U.S.C. §§ 4341-47. ELR 41010 et seq. The Office of Environmental Quality was created by § 203 of the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4372, ELR 41012, and made part of CEQ.

5. The Council of Economic Advisers, also located in the Executive Office of the President, plays a broad advisory as well as data collection role. 15 U.S.C. § 1023. Russell Train, the first chairman of CEQ, often analogized CEQ to CEA for staff size purposes. Under the new reorganization, CEA went from 42 to 35 positions while CEQ went from 40 to 32 positions.

6. NEPA §§ 204(2) and (3), 42 U.S.C. §§ 4344(2) and (3), ELR 41011.

7. 40 C.F.R., pt. 1500, ELR 46003.

8. SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS, THE COUNCIL ON ENVIRONMENTAL QUALITY — OVERSIGHT REPORT 23 (Nov. 1976) [hereinafter cited as CEQ OVERSIGHT REPORT].

9. Warm Springs Dam Task Force v. Gribble, 4 ELR 20666, 418 U.S. 910, 4 ELR 20669 (U.S. 1974). See also Comment, Supreme Court Ushers in New Era for CEQ in Warm Springs Case, 4 ELR 10130 (1974).

10. See R. LIROFF, A NATIONAL POLICY FOR THE ENVIRONMENT — NEPA AND ITS AFTERMATH 40-43 (1976); Comment, Second Circuit, CEQ Clarify Permissibility of Interim Actions Prior to Completion of Program EIS, 6 ELR 10254 (1976).

11. Russell Peterson, former chairman of CEQ, was opposed to the Council playing a police officer's role. CEQ OVERSIGHT REPORT 23.

12. Through 1975, more than 7,000 draft environmental impact statements were filed with CEQ. CEQ, ENVIRONMENTAL QUALITY — 1976: THE SEVENTH ANNUAL REPORT 132 (1976).

13. Section 101 is the congressional declaration of a national environmental policy. See CEQ OVERSIGHT REPORT 24; Symposium, Implementing NEPA's Substantive Goals, 6 ELR 50001 (1976).

14. The 1970 and 1971 CEQ reports on ocean dumping and toxic substances, respectively, ultimately led to legislation. In 1977, CEQ published a book on wildlife law that will be used as the basis for recommending new legislation. M. Bean, The Evolution of National Wildlife Law (1977) (portions published at 7 ELR 50013 (1977)). Through FY 1976, CEQ has awarded $8.4 million for contract studies. For a list of the contracts and the topics see CEQ OVERSIGHT REPORT App. K.

15. CEQ OVERSIGHT REPORT 24-34.

16. Id., 30-33. See also Comment, CEQ Issues Less Ambitious Seventh Annual Report, 6 ELR 10278 (1976).

17. Charles Warren, a former California state legislator extremely active in the areas of energy and land use problems, is the new chairman. Gustave Speth, co-founder and former staff attorney of the Natural Resources Defense Council, a public interest environmental firm, is one of its members. The other member, not yet confirmed by the Senate due to its August recess, is Marion Edey, founder and former chairwoman of the League of Conservation Voters.

18. Supra note 3.

19. President's Message to Congress Transmitting Reorganization Plan No. 1 of 1977, 13 WEEKLY COMP. OF PRES. DOC. 1007 (July 15, 1977).

20. Section 11, 42 U.S.C. § 5910, ELR 41280. This work may be transferred again to the new Department of Energy.

21. On the other hand, the reorganization initiated a Policy Management System at a level just beneath the President to funnel policy recommendations to him. If this system works as planned, with a committee of presidential advisors, there should not be the extremely limited access to the President that existed in prior administrations.

22. Testimony before the Senate Committee on Government Affairs, Aug. 1, 1977.

23. In June, CEQ held three days of hearings on NEPA reform, and it recently distributed a 37-page questionnaire soliciting further public comment on improving the EIS process and drafting the regulations.

24. In its own internal reorganization, CEQ has divided its staff among the following seven areas: pollution (air, water, and solid waste), data and monitoring, toxics and health, land and natural resources, energy, economics, and environmental oversight and land use. In addition, its component on scientific and international affairs will continue, and CEQ is beginning work on a Year 2000 Global Study on the interrelationships of the environment, industrial growth, and population.

25. One of the seven OMB reorganization teams will study natural resources, the environment, and energy. Its results are not expected for a year or two, but it is soliciting public comments now. In all likelihood, the agencies will do the detailed reorganization work, and the OMB team will coordinate the process. This team was to be headed by John Hoffman, former executive director of the Sierra Club Defense Fund, but the appointment was rejected by OMB Director Lance because the appearance of an environmentalist bias might call into question the objectivity of the team's recommendations. 8 BNA ENVIR. REP. CURR. DEV. 550 (Aug. 12, 1977). At ELR press time, no new candidate had been selected.

26. For example, EPA has created a new Assistant Administrator for Toxic Substances and has moved responsibility for solid waste management to the Assistant Administrator for Water and Hazardous Materials. In an apparent retrenchment, however, the Department of Transportation has abolished a separate assistant secretaryship for environmental affairs and has included this under the Assistant Secretary for Policy, along with international affairs, safety, consumer affairs, systems development, and technology. The new Department of Energy is expected to have an Assistant Secretary for the Environment who will handle the environmental impacts of energy programs and administer DOE's large energy and the environment research program.

27. For example, new assistant administrators at EPA include David Hawkins (air), former staff attorney with the Natural Resources Defense Council, and Steven Jellinek (toxic substances), former staff director at CEQ. The new Assistant Attorney General for Land and Natural Resources will be James Moorman, formerly a Sierra Club attorney, and Angus Macbeth, formerly with NRDC, will head the pollution control section.