New Rules for the NEPA Process: CEQ Establishes Uniform Procedures to Improve Implementation

On November 29, 1978, the Council on Environmental Quality (CEQ) opened a new chapter in the implementation of the National Environmental Policy Act (NEPA)¹ by issuing final regulations² establishing substantially revised NEPA compliance procedures. The rules replace CEQ's 1973 Guidelines,³ which some agencies and reviewing courts considered merely advisory,⁴ with binding requirements that envision a set of uniform and streamlined procedures applicable to all federal agencies. The regulations are the clumination of an 18-month rulemaking process set in motion by Executive Order No. 11991,⁵ in which President Carter directed the Council to reform the NEPA process so as to reduce paperwork and make the statutory required environmental analysis more useful to federal decision makers and the public.

The final rules reflect numerous and in some instances noteworthy changes from the proposed draft published in June 1978⁶ which stimulated heavy public comment. An examination of the final regulations indicates that CEQ has done much to assure that paperwork and delay will be reduced and to foster agency decisions that are based on a full understanding of environmental consequences. Moreover, while there is some uncertainty as to the reach, legality, and efficacy of particular provisions, the new regulations as a whole promise to produce major improvements in NEPA's implementation.

Basis and Scope

As the basis of its authority for promulgating the regulations, CEQ cited NEPA, the Environmental Quality Improvement Act of 1970,⁷ § 309 of the Clean Air Act,⁸ and Executive Order No. 11991. Some observers, however, continue to question whether any of these authorities empower the Council to impose uniform NEPA procedures on other federal agencies. These doubters note that none of the cited statutes explicitly authorize either the promulgation of regulations by CEQ or the issuance by the President of an executive order directing the Council to do so. In the absence of an express congressional directive for the establishment of uniform NEPA procedures, the argument goes, the adoption of specific implementation methods should be left to the discretion of each agency.

In the preamble to the final regulations,⁹ CEQ offered a convincing rebuttal to this charge, at least with respect to agencies headed by cabinet officers, by emphasizing that Executive Order No. 11991 was issued pursuant to the President's constitutional power to ensure that the laws are faithfully executed.¹⁰ The amenability of regulatory agencies which are formally independent of presidential control to the imposition of NEPA compliance procedures pursuant to presidential directive is more problematic, however, and will almost certainly require judicial resolution.

Unlike the 1973 Guidelines, which concerned only § 102(2)(C) of the Act,¹¹ governing the preparation of environmental impact statements (EISs), the new regulations cover all nine subsections of § 102(2).¹² The broader reach of the final rules thus encompasses application of NEPA's procedural requirements throughout the entire agency decision-making process, from the earliest planning stages to the monitoring of mitigation measures after the decision has been implemented and the action completed. The procedural regime imposed by the new regulations includes many significant and in most cases constructive alterations of the NEPA process. In a number of instances, however, innovative provisions put forward in the June 1978 proposals have been scaled back or deleted in light of comments by the public and other federal agencies.

Agency Planning Provisions

Lead Agency Designation

The regulations introduce two noteworthy new procedures into the pre-EIS planning process. In an attempt to prevent delays in the onset of environmental analysis due to the failure of two or more agencies involved in a project or program to determine which agency will be primarily responsible for coordinating NEPA compliance,¹³ CEQ spelled out a method for the expeditious resolution of such disputes.¹⁴ If after a written request [9 ELR 10006] from a "substantially affected" federal, state, or local agency or private person, the agencies involved cannot agree or simply fail to designate a lead agency within 45 days, the affected agency or person may request CEQ to make the designation.¹⁵ The Council will allow the agencies involved in the project 20 days to respond, after which the Council will make the lead agency determination. The regulations also allow two or more agencies to act as "joint lead agencies."

The Council expressly declined to assume the broader role of taking all lead agency determinations upon itself, explaining in the preamble to the rules that individual agencies are in the best position to decide these questions and that CEQ lacked the staff to shoulder this burden.¹⁶ These provisions for the first time give the public a potentially important role in lead agency designation. In addition, they impose a timetable for the resolution of interagency designation disagreements and formalize CEQ's position as the arbiter of such disputes.

Once designated, the lead agency may call upon other agencies with jurisdiction over the project or special expertise concerning any relevant environmental issue to cooperate in completing the NEPA process.¹⁷ The final regulations contain a new provision which permits such a "cooperating agency" to decline to participate, however, if its other program commitments preclude such involvement.¹⁸ This provision responds to expressions of concern from the few "environmental" agencies that they would be inundated with requests to cooperate in EIS preparation and that their resources would quickly be exhausted if they were required to comply with such requests in every case.

Scoping

In an important and promising innovation, the regulations establish a mandatory "scoping" mechanism which is designed to identify key issues that merit full analysis in the EIS and designate those that deserve only cursory discussion.¹⁹ As soon as is practicable after it decides to prepare an EIS, the lead agency must invite affected federal, state, and local agencies and interested members of the public to participate in this process. In addition to determining the issues which will receive in-depth treatment in the impact statement, the participants are to identify other environmental review and consultation requirements so that other required analyses or studies can be prepared concurrently with the EIS. The proposed regulations would have required the lead agency to hold a meeting of all participants "when practicable," but the final rules give the agency discretion to eliminate such a meeting from the scoping process.²⁰ Another change from the proposed version permits an agency to combine scoping with its environmental assessment process.²¹

The scoping mechanism constitutes one of the central changes effected by the new regulations. If successfully implemented, it promises to reduce delay and to eliminate redundant or extraneous discussion from impact statements. Moreover, by focusing attention on disputed issues at the outset, it will facilitate the preparation of draft statements which fully consider the points deemed important by interested parties and thereby lessen the likelihood of later judicial challenges to statement adequacy. It is even conceivable that the scoping process, by bringing agency officials and their traditional adversaries into a joint endeavor, will engender a spirit of cooperation and negotiation in lieu of pre-litigation conflict.²²

The Council decided against imposing time limits for the entire NEPA process on the ground that such a rigid schedule could not accommodate the divergent circumstances surrounding the myriad types of federal actions.²³ The regulations do provide, however, that if a private party requesting the proposed government action in a particular case asks the lead agency to set time limits for portions of the NEPA process, the agency must do so.²⁴ State or local agencies and members of the public may also request the setting of such deadlines, but the agency is not bound to comply with their requests.²⁵

EIS Form and Content

The regulations emphasize that environmental impact statements are not simply disclosure documents; they are to be "analytic rather than encyclopedic."²⁶ More precisely, impact statements must be "concise, clear, and to the point,"²⁷ focusing on significant environmental issues and alternatives and simply referencing background data or relegating it to appendices. Statements are to be prepared using an interdisciplinary approach and must be written in "plain language" readily [9 ELR 10007] understandable to the public.²⁸ Normally, impact statements are to be less than 150 pages in length, although up to 300 pages may be allowed for proposals of unusual scope or complexity.²⁹ The Council acknowledged the tension between these page limitations and the requirement for a thorough analysis of environmental issues, but it voiced the opinion that a fully adequate EIS can be prepared under NEPA within these limits.³⁰

The regulations recommend a standard format for impact statements including a 15-page summary, a brief statement of the purpose and need to which the proposed action is addressed, and a list of preparers setting forth their professional disciplines and qualifications.³¹ The EIS is required to list all federal permits, licenses, and other entitlements that must be obtained prior to implementing the proposal, and must be integrated with surveys and studies required by other environmental review laws.³²

The regulations envision abandonment of the traditional EIS structure, which consists of five sections paralleling the five subsections of § 102(2)(C), in favor of a condensed three-part approach. As the heart of the impact statement, the regulations require a detailed comparative analysis of all reasonable alternatives to the main proposal and their environmental ramifications.³³ Consideration of the no-action alternative is specifically mandated, as is identification of the alternative or alternatives preferred by the agency.³⁴ The proposed requirement for identification of the environmentally preferable alternative or alternatives in the EIS has been dropped, however.³⁵

The Council also took the position that § 102(2)(B) of NEPA does not necessitate a weighing of the merits and drawbacks of various alternatives in the form of a monetary cost-benefit analysis, and the regulations thus do not require the preparation of such an analysis in conjunction with the EIS. The rules do specify, however, that if the agency conducts a cost-benefit analysis, it is to be appended to the impact statement or incorporated by reference.³⁶

The second basic component of the EIS is to be a succinct description of the environment of the area to be affected by the proposed action or project.³⁷ The regulations explicitly warn against verbose descriptions on this point that simply contribute to useless bulk. The direct and indirect environmental consequences of the proposal, including energy requirements and conservation opportunities, depletable resource demands, and impacts upon urban quality and historic resources, are the third major point that the EIS must discuss.³⁸ The impact statement must in addition set forth appropriate mitigation measures not already incorporated in the proposal.³⁹

The regulations emphasize that impact statements are sometimes required for broad federal programs.⁴⁰ CEQ suggested rather than directed that when preparing such statements, including those covering multiple proposals, agencies may find it useful to evaluate the proposals on the basis of geographic proximity, generic similarity, or stage of technological development.⁴¹ The regulations also allow the encourage the "tiering" of impact statements, whereby the program statement analyzes broad policy issues while a later EIS for a particular action or project focuses on site-specific impacts and alternatives.⁴²

A provision embodying a significant innovation mandates that the lead agency identify gaps in relevant information concerning adverse environmental effects; if it is essential to a reasoned choice among alternatives and the costs of obtaining it are not exorbitant, the agency must obtain the information and set it out in the EIS.⁴³ If the costs of obtaining the additional information are prohibitive or the means to do so are unknown and the agency decides to proceed with the project in the face of this uncertainty, it must weigh the risks and severity of the possible adverse impacts. This risk assessment must include a "worse case" analysis, along with an indication of the probability or improbability of its occurence.⁴⁴

[9 ELR 10008]

The imposition of an affirmative obligation to go beyond the limits of currently available information when necessary for an informed decision is a major innovation and improvement in the EIS process. Current ecological knowledge is still in many instances quite limited, and a duty to develop new information will serve both to expand the frontiers of environmental knowledge and prevent agencies from hiding behind their ignorance of a project's true environmental ramifications.

Referrals of Environmentally Unsatisfactory Actions

The rules also establish procedures for the referral to CEQ of interagency disputes concerning the acceptability of a proposed federal action's environmental effects. EPA is specifically authorized to make such referrals pursuant to § 309 of the Clean Air Act,⁴⁵ and the regulations deduce analogous authority on the part of the other agencies from their general obligation under § 102(2)(C) to review impact statements.⁴⁶ Referrals may be made only after attempts to resolve differences with the lead agency have proven unsuccessful and must come within 25 days of the date on which the final environmental impact statement is made available to the public.⁴⁷ The referral itself must contain factual evidence and a reasoned explanation of why the proposed action is unsatisfactory from the standpoint of the public health or welfare or environmental quality.The rules impose a prudential limitation against overuse of the mechanism in that the referring agency must explain why it considers the dispute to present issues of "national importance."⁴⁸ The referring agency must also make a recommendation as to how to remedy the situation, and the lead agency then has 25 days after the referral to deliver its reponse, although the Council may grant an extension if given assurances that the challenged action will not proceed in the interim.⁴⁹ Interested persons including the applicant may deliver written views to CEQ.⁵⁰

Once it receives its response or is informed that no response will be forthcoming, CEQ has 25 days to act upon the referral. The options open to the Council at this point are numerous. It can determine that the issue is in fact not of national importance and hence inappropriate for the referral process, or that the agency disagreement is not yet irreconcilable. It can hold informational hearings, assume the role of mediator, or publish findings and recommendations. Finally, when "appropriate" it can submit the referral and response together with its own recommendation to the President for a decision.⁵¹ Any such proceedings by the Council must be completed within 60 days.⁵²

Agency Decision Making

One of the most persistent and profound criticisms of the NEPA process has been that it is in practice often an academic exercise having little real relation to the agency's ultimate decision.⁵³ The final regulations address this concern by requiring that where an impact statement is prepared the agency also prepare a concise public record of decision, explaining how environmental considerations were factored into the decision-making process. This new document must first state the agency's decision.⁵⁴ In addition, it is to identify all alternatives considered by the agency, including specifically the alternative or alternatives which were environmentally preferable.⁵⁵ The agency must then identify any economic and technical factors or "essential considerations of national policy" which it balanced in making its decision and discuss how they entered into the result.⁵⁶

This requirement has been changed somewhat from that included in the proposed version, which demanded an explanation as to why "other specific considerations of national policy overrode" the environmentally preferable alternative if it were not chosen.⁵⁷ As presently stated, the regulations clearly do not require an agency to opt for the environmentally preferable alternative in every instance. This provision may nonetheless lead a reviewing court to inquire into the agency's substantive decision not to adopt that choice in order to assure itself that the actual balance struck was not arbitrary and capricious.

Finally, the record of decision is to state whether all practicable means for mitigating environmental harm from the alternative selected have been adopted, and if not, why not.⁵⁸ The regulations also provide that the lead agency must impose appropriate conditions in grants, permits, licenses, and on federal funding of non-federal actions in order to assure that mitigation measures that have been proposed as a result of the NEPA process are implemented.⁵⁹

The requirement of a public record of decision at the end of the NEPA process is the most significant provision of the new regulations. It all but assures that the agency decision maker will in fact weigh the environmental [9 ELR 10009] considerations discussed in the impact statement against non-environmental factors and objectives in reaching his ultimate decision. The regulations thus serve to integrate the conclusions of the EIS into the agency's final decision-making process and to obviate the danger that the EIS process will wind up as a meaningless exercise in paper shuffling. More than any other single provision, the requirement for a record of decision therefore promises to facilitate the achievement of NEPA's fundamental goal of fostering environmentally cognizant federal decision making. In addition, the emphasis on mitigation holds out the prospect of more senitive implementation of actions or projects which entail environmental harm.

Miscellaneous Provisions

Preserving the Status Quo

The regulations contain several provisions that make notable improvements over the earlier guidelines and existing agency procedures. To preserve the environmental status quo pending completion of the NEPA process, the regulations forbid an agency that has not yet issued a record of decision from commencing action on the proposal which would harm the environment or limit the choice among alternatives.⁶⁰ If, on the other hand, the agency is considering an application from a nonfederal entity which is about to take such action and the private activity lies within the agency's jurisdiction, the agency need only notify the applicant that it will take appropriate action to ensure that the objectives and procedures of NEPA are achieved.⁶¹ The regulations offer no clue as to what action might be appropriate in such circumstances. The rules also foreclose site specific federal action pending completion of a programmatic EIS unless it is independently justified, is itself accompanied by an adequate EIS, and will not prejudice the ultimate decision on the program by determining subsequent development or limiting alternatives.⁶²

Federal-State Cooperation

The regulations make a change long sought by state and local officials by ordering federal agencies to cooperate fully to reduce duplication between NEPA and analogous state and local requirements by conducting joint planning processes and public hearings with state and local agencies and preparing joint environmental impact statements which comply with the requirements of both federal and state law.⁶³ Federally prepared impact statements must in any event discuss any inconsistency between the planned action and any state or local plan or law and describe the extent to which the agency proposes to reconcile this conflict.⁶⁴

Conflicts of Interest

A provision that will necessitate further changes in the procedures of some agencies requires that the EIS be prepared directly by the lead agency or by a contractor selected solely by the agency.⁶⁵ The contractor must execute a disclaimer of any financial or other interest in the outcome of the project.Although an applicant may still submit information to the agency for use in the EIS, such data must now be independently evaluated and verified by the agency to eliminate partiality in the environmental review process.⁶⁶

Key Definitions

In a departure from the proposed version,⁶⁷ the final regulations drop all mention within the definition of "major federal action"⁶⁸ of federal programs delegated or otherwise transferred to states or localities. The Council explained this deletion on the ground that applying NEPA in the context of such programs is complicated by a variety of factors which should be resolved by the relevant agencies on a case-by-case basis, subject to judicial review.⁶⁹ Restating lines drawn by the case law, the regulations also explicitly exempt the unrestricted distribution of general revenue sharing funds and the bringing of judicial or administrative enforcement actions seeking civil or criminal penalties.⁷⁰ The regulations codify a further judicial gloss on NEPA by stating in the definition of "human environment" that economic or social effects do not by themselves require preparation of an EIS but must be discussed in an impact statement when interrelated with effects on the natural or physical environment.⁷¹

The definition of "proposal" was likewise modified. Whereas the proposed version of the regulations took the position that a project has reached the proposal stage once an agency is "actively considering" one or more alternative means of accomplishing a goal,⁷² under the final rules a proposal exists only when the agency is "actively preparing to make a decision" on such alternatives.⁷³ The Council did, however, retain the explicit acknowledgment that a proposal may exist in fact as well as by formal agency declaration.

Legislative Proposals

Many difficulties have arisen concerning the application of the EIS requirement to proposals for legislation.⁷⁴ [9 ELR 10010] The regulations propose a partial remedy by establishing a streamlined process for the preparation of "legislative" impact statements. While the EIS is to be considered part of the formal transmittal of a legislative proposal to Congress, it may arrive up to 30 days later as long as it is available for the relevant hearings and deliberations.⁷⁵ Moreover, no scoping process need be undertaken and in most instances only a draft EIS need be prepared. Completion of the full circulation process and preparation of a final EIS will still be required where the rules of a congressional committee with jurisdiction over the proposal so provide, the proposal itself results from a statutorily mandated study process, or legislative approval is sought for a project to be located at a specific geographic site.⁷⁶

In addition, the final regulations, as did the proposed version, specifically exclude from the definition of legislative proposals agency requests for appropriations.⁷⁷ The Council acknowledged that this position contradicts that taken in the 1973 Guidelines,⁷⁸ but explained that in its view the preparation of environmental impact statements is ill-suited to the budget process.⁷⁹ CEQ's position also conflicts with Sierra Club v. Andrus,⁸⁰ but the Council noted that the case is now pending before the Supreme Court.

Financial Assistance, Judicial Review

The Council also decided not to address the issue of federal funding for public participation in the NEPA process.⁸¹ Although CEQ requested public comment on this issue in the preamble to its proposed rules,⁸² it ultimately determined that the matter should be left to the discretion of the agencies, a conclusion which is consistent with the relevant case law.⁸³

The final regulations repeat with slight modification CEQ's proposed statement of intent warning against premature or unwarranted judicial review.⁸⁴ The provision attempts to preclude review of agency compliance with the regulations until the agency either files a final EIS, issues a final negative determination which will result in action affecting the environment, or takes action that will result in irreparable harm. It now also indicates that "trivial" violations of the regulations are not to serve as the basis for an independent cause of action. Whether these provisions can provide any protection against premature judicial intervention over and above that already afforded by the doctrines of ripeness and exhaustion of administrative remedies⁸⁵ is dubious. They may in fact be aimed at reassuring other agencies as much as affecting judicial behavior.

Conclusion

After more than 18 months of effort, CEQ has finally produced standardized and binding NEPA implementation rules for all federal agencies. The regulations go into effect on July 30, 1979,⁸⁶ by which date all other agencies must adopt procedures for implementing the CEQ directives.⁸⁷ The rules represent a concerted effort by CEQ to rectify many of the problems with the NEPA process that have become apparent since the 1973 Guidelines were issued. In most instances, the Council's innovations represent workable improvements that promise to result in more efficient implementation of the Act's mandates and more environmentally cognizant agency decision making. The courts will play a key role in determining their efficacy, however, as questions concerning the scope and legality of various provisions arise in lawsuits challenging agency action under these new regulatory requirements.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

2. 40 C.F.R. §§ 1500-1508, 43 Fed. Reg. 55978 (Nov. 29, 1978), ELR STAT. & REG. 46015.

3. 38 Fed. Reg. 20660 (Aug. 1, 1973).

4. See, e.g., Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 421, 2 ELR 20017, 20021 (2d Cir.), cert. denied 409 U.S. 849 (1972); but see Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 4 ELR 20666 (Douglas, Circuit Justice 1974); Trout Unlimited v. Morton, 509 F.2d 1276, 1283, 5 ELR 20151, 20154 (9th Cir. 1974); W. RODGERS, ENVIRONMENTAL LAW § 7.2 at 708 (1977).

5. 42 Fed. Reg. 26967 (May 25, 1977), ELR STAT. & REG. 45003.

6. 43 Fed. Reg. 25230 (June 9, 1978). For discussions of the genesis of these proposals and the legal issues raised by certain provisions, see Comment, CEQ Proposes Ambitious NEPA Regulations for Comment, Stands Ground Despite Agency Criticism, 8 ELR 10129 (1978), and Comment, Reinvigorating the NEPA Process: CEQ's Draft Regulations Stir Controversy, 8 ELR 10045 (1978).

7. 42 U.S.C. §§ 4371-4374, ELR STAT. & REG. 41012.

8. 42 U.S.C. § 7609, ELR STAT. & REG. 42259.

9. 43 Fed. Reg. at 55978, 55989.

10. U.S. CONST. art. II, § 3, cl. 4.

11. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

12. 42 U.S.C. § 4332(2)(A)-(I), ELR STAT. & REG. 41010.

13. See F. ANDERSON, NEPA IN THE COURTS 196-200 (1973).

14. 40 C.F.R. § 1501.5, 43 Fed. Reg. at 55992-93, ELR STAT. & REG. 46017.

15. 40 C.F.R. § 1501.5(d)-(e), 43 Fed. Reg. at 55993, ELR STAT. & REG. 46018. It should be noted that this "substantially affected" requirement seems to impose a higher standard of injury than does the "adversely affected" test enunciated in the Administrative Procedure Act, 5 U.S.C. § 702, ELR STAT. & REG. 41005.

16. 43 Fed. Reg. at 55981.

17. 40 C.F.R. § 1501.6, 43 Fed. Reg. at 55993, ELR STAT. & REG. 46018.

18. 40 C.F.R. § 1501.6(c), 43 Fed. Reg. at 55993, ELR STAT. & REG. 46018.

19. 40 C.F.R. § 1501.7, 43 Fed. Reg. at 55993-94, ELR STAT. & REG. 46018.

20. 40 C.F.R. § 1501.7(b)(4), 43 Fed. Reg. at 55993, ELR STAT. & REG. 46018.

21. 40 C.F.R. § 1501.7(b)(3), 43 Fed. Reg. at 55993, ELR STAT. & REG. 46018.

22. It remains to be seen whether the scoping determination would furnish the lead agency with a successful res judicata or collateral estoppel defense should a litigant challenge an EIS for failure to analyze adequately issues determined through the scoping process to be unworthy of detailed treatment.

23. 43 Fed. Reg. at 55983.

24. 40 C.F.R. § 1501.8(a), 43 Fed. Reg. at 55994, ELR STAT. & REG. 46018. The regulations suggest that the agency consider the following factors in determining the appropriate time limits: the size of the action and the extent to which it is controversial, its potential for environemental harm and the number of persons and agencies affected, public need for the proposed action including the consequences of delay, and the time required to obtain relevant information not yet available. 40 C.F.R. § 1501.8(b)(1), 43 Fed. Reg. at 55994, ELR STAT. & REG. 46019.

25. 40 C.F.R. § 1501.8(c), 43 Fed. Reg. at 55994, ELR STAT. & REG. 46019.

26. 40 C.F.R. § 1502.2(a), 43 Fed. Reg. at 55994, ELR STAT. & REG. 46020.

27. 40 C.F.R. § 1502.1, 43 Fed. Reg. at 55994, ELR STAT. & REG. 46020.

28. 40 C.F.R. § 1502.8, 43 Fed. Reg. at 55995, ELR STAT. & REG. 46023.

29. 40 C.F.R. § 1502.7, 43 Fed. Reg. at 55995, ELR STAT. & REG. 46021.

30. 43 Fed. Reg. at 55983.

31. 40 C.F.R. § 1502.10-.17, 43 Fed. Reg. at 55995-96, ELR STAT. & REG. 46021.

32. 40 C.F.R. 1502.25, 43 Fed. Reg. 55997, ELR STAT. & REG. 46023. As examples of statutes that impose environmental review requirements, the regulations mention the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-666c, ELR STAT. & REG. 41801, the National Historic Preservation Act of 1966, 16 U.S.C. §§ 470-470t, ELR STAT. & REG. 41452, and the Endangered Species Act, 16 U.S.C. §§ 1531-1543, ELR STAT. & REG. 41825.

33. 40 C.F.R. § 1502.14(a), 43 Fed. Reg. at 55996, ELR STAT. & REG. 46022.

34. 40 C.F.R. § 1502.14(d)-(e), 43 Fed. Reg. at 55996, ELR STAT. & REG. 46022.

35. The environmentally preferable alternative must nevertheless be identified later in the agency's public "record of decision." 40 C.F.R. § 1505.2(b), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46027. CEQ's view is that the wide variation in federal decision-making practices warrants giving the agencies latitude to determine whether to make this key determination within the EIS, or at other stages in the decision-making process. 43 Fed. Reg. at 55984. By requiring agencies to designate the environmentally preferable alternative in the record of decision rather than in the EIS, however, the regulations essentially preclude this issue from being raised in a claim challenging an impact statement's adequacy.

36. 40 C.F.R. § 1502.23, 43 Fed. Reg. at 55996, ELR STAT. & REG. 46022.

37. 40 C.F.R. § 1502.15, 43 Fed. Reg. at 55996, ELR STAT. & REG. 46022.

38. 40 C.F.R. § 1502.16, 43 Fed. Reg. at 55996, ELR STAT. & REG. 46022.

39. 40 C.F.R. § 1502.14(f), 43 Fed. Reg. at 55996, ELR STAT. & REG. 46022.

40. 40 C.F.R. § 1502.4(b), 43 Fed. Reg. at 55955, ELR STAT. & REG. 46020.

41. 40 C.F.R. § 1502.4(c), 43 Fed. Reg. at 55995, ELR STAT. & REG. 46023.

42. 40 C.F.R. § 1502.20, 43 Fed. Reg. at 55997, ELR STAT. & REG. 46023.

43. 40 C.F.R. § 1502.22(a), 43 Fed. Reg. at 55997, ELR STAT. & REG. 46023.

44. 40 C.F.R. § 1502.22(b), 43 Fed. Reg. at 55997, ELR STAT. & REG. 46023.

45. 42 U.S.C. § 7609, ELR STAT. & REG. 42259. EPA has used this authority sparingly. See Comment, Section 309 of the Clean Air Act Revisited: EPA Makes Second Referral of Environmentally Unsatisfactory Project to CEQ, 6 ELR 10059 (1976).

46. 40 C.F.R. § 1504.1(c), 43 Fed. Reg. at 55998, ELR STAT. & REG. 46025.

47. 40 C.F.R. § 1504.3(b), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46025.

48. 40 C.F.R. § 1504.3(c)(2)(iv), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46025.

49. 40 C.F.R. § 1504.3(d), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46025.

50. 40 C.F.R. § 1504.3(e), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46025. Comments submitted in support of the referral must arrive not later than the referral itself and those in opposition must be in the Council's hands before the deadline for the lead agency's response.

51. 40 C.F.R. § 1504.3(f)(7), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46026.

52. 40 C.F.R. § 1504.3(g), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46026.

53. See Caldwell, Is NEPA Inherently Self-Defeating?, 9 ELR 50001 (Jan. 1979).

54. 40 C.F.R. § 1505.2(a), 43 Fed. Reg. at 55999, ELR STAT. & REG. 46027.

55. 40 C.F.R. § 1505.2(b), 43 Fed. Reg. at 55999-56000, ELR STAT. & REG. 46027. See also note 35 supra.

56. Id.

57. 43 Fed. Reg. at 25240 (June 9, 1978).

58. 40 C.F.R. § 1505.2(c), 43 Fed. Reg. at 56000, ELR STAT. & REG. 46027.

59. 40 C.F.R. § 1505.3, 43 Fed. Reg. at 56000, ELR STAT. & REG. 46027.

60. 40 C.F.R. § 1506.1(a), 43 Fed. Reg. at 56000, ELR STAT. & REG. 46028.

61. 40 C.F.R. § 1506.1(b), 43 Fed. Reg. at 56000, ELR STAT. & REG. 46028.

62. 40 C.F.R. § 1506.1(c), 43 Fed. Reg. at 56000, ELR STAT. & REG. 46028.

63. 40 C.F.R. § 1506.2(b)-(c), 43 Fed. Reg. at 56000, ELR STAT. & REG. 46028.

64. 40 C.F.R. § 1506.2(d), 43 Fed. Reg. at 56000, ELR STAT. & REG. 46028.

65. 40 C.F.R. § 1506.5(c), 43 Fed. Reg. at 56001, ELR STAT. & REG. 46028.

66. 40 C.F.R. § 1506.5(a), 43 Fed. Reg. at 56001, ELR STAT. & REG. 46028.

67. 43 Fed. Reg. at 25245.

68. 40 C.F.R. § 1508.18, 43 Fed. Reg. at 56004-05, ELR STAT. & REG. 46033.

69. 43 Fed. Reg. at 55989.

70. 40 C.F.R. § 1508.18(a), 43 Fed. Reg. at 56005, ELR STAT. & REG. 46033.

71. 40 C.F.R. § 1508.14, 43 Fed. Reg. at 56004, ELR STAT. & REG. 46033.

72. 43 Fed. Reg. at 25425.

73. 40 C.F.R. § 1508.23, 43 Fed. Reg. at 56005, ELR STAT. & REG. 46033.

74. See Comment, Impact Statements on Legislative Proposals: Enforcing the Neglected Half of NEPA's Mandate, 7 ELR 10145 (1977).

75. 40 C.F.R. § 1506.8(a), 43 Fed. Reg. at 56001, ELR. STAT. & REG. 46029.

76. 40 C.F.R. § 1506.8(b)(2), 43 Fed. Reg. at 56001-02, ELR STAT. & REG. 46029.

77. 40 C.F.R. § 1508.17, 43 Fed. Reg. at 56004, ELR STAT. & REG. 46033.

78. 38 Fed. Reg. at 20552 (Aug. 1, 1973).

79. 43 Fed. Reg. at 55989.

80. 581 F.2d 895, 8 ELR 20490 (D.C. Cir. 1978), cert. granted 47 U.S.L.W. 3463 (Jan. 8, 1979); see Comment, NEPA and the Budget Process: D.C. Circuit Announces EIS Requirement Applies to "Non-Routine" Annual Requests, 8 ELR 10126 (July 1978).

81. 43 Fed. Reg. at 55989-90.

82. 43 Fed. Reg. at 25232.

83. See Comment, Funding Public Participation in Administrative Proceedings: District Court Finds Implicit Agency Authority to Award Costs, 8 ELR 10242 (1978).

84. 40 C.F.R. § 1500.3, 43 Fed. Reg. at 55991, ELR STAT. & REG. 46015; see also 43 Fed. Reg. at 25233.

85. See W. RODGERS, ENVIRONMENTAL LAW § 1.9 at 40-43, 46-49 (1977).

86. 40 C.F.R. § 1506.12, 43 Fed. Reg. at 56002, ELR STAT. & REG. 46030.

87. 40 C.F.R. § 1507.3(a), 43 Fed. Reg. at 56003, ELR STAT. & REG. 46031.