Is NEPA Inherently Self-Defeating?

9 ELR 50001 | Environmental Law Reporter | copyright © 1979 | All rights reserved

Is NEPA Inherently Self-Defeating?

Lynton K. Caldwell

Lynton K. Caldwell is Bentley Professor of Political Science and Professor of Public and Environmental Affairs at Indiana University, Bloomington, Indiana. He was consultant to the Senate Committee on Interior and Insular Affairs on the drafting of the National Environmental Policy Act.

[9 ELR 50001]

Although the National Environmental Policy Act (NEPA) has been widely acclaimed as an instrument of decision-making reform, doubts have periodically been expressed regarding its effectiveness.1 No legislation, however well intentioned or successful, should be exempt from periodic reexamination. Some criticisms of NEPA have been well-founded — prompting improvements in its implementation — but other criticisms have faulted the Act itself, claiming it to be counter-productive in relation to the purposes for which it was enacted. Suggestions that the benefits of NEPA have been illusory and that it has obstructed rather than advanced the cause of environmental protection would, if valid, bring into question the wisdom of retaining NEPA as statutory law.

This article examines the contention that NEPA is so constituted as to defeat its stated purposes. It advances the thesis that much of the criticism in this vein misinterprets the Act by focusing on misuses of the environmental impact statement (EIS) to the neglect of the impact of the Act as a whole. It also contends that the critics fail to credit the constructive efforts of the federal agencies and the Council on Environmental Quality (CEQ) in making the EIS the effective instrument of policy and planning that its drafters intended.

Purpose and Limitations of NEPA

NEPA is not primarily (a) a full disclosure law; (b) a vehicle for citizen involvement; or (c) a regulation of agency procedures. The Act contributes importantly to each of these objectives, but they are incidental to its main purpose and none were primary reasons for its enactment. NEPA is what its title declares: a policy act. Its purpose was to state for the first time and in a single place, a comprehensive national commitment to protection of the environment and to back up that commitment with a corresponding reorientation of specific policies and programs of the administrative agencies of the United States government.

Relative to its importance and to federal statutes generally, NEPA is concise, and its language simple and free from legalistic jargon. Yet its significance and implications were not readily apparent.2 Had its enactment occasioned thorough, well-publicized debate, the real purpose of the legislation along with the requirements for its effectiveness might have been better understood. Nonetheless, the absence of public discussion did not signify public indifference. NEPA was so little debated, not because so few cared, but rather because so many wanted action and had no clear idea of how to get it.3

By the late 1960s there was widespread belief among environmentally concerned and politically active citizens that federal agencies and programs were themselves leading factors in environmental degradation. Environmental issues had pitted organized citizen groups against governmental agencies responding primarily to what their critics perceived as relatively short-term and narrowly defined economic interests.4 Massive environment-shaping programs of the federal government seemed unresponsive to aesthetic, cultural, or ecological values, and their decision-making processes inaccessible to questioning by the general public. Deeply committed to public works and economic development, agencies such as the Corps of Engineers, the Bureau of Reclamation, the Federal Highway Administration, and the Federal Aviation Administration proceeded under broad statutory authority sometimes even beyond effective presidential control, while some, like the Atomic Energy Commission, formally independent of the President, were guided by mandates that permitted them to ignore or lightly consider their impact upon the quality of the environment.5 These agencies commonly took the position that they had no authority to consider environmental impacts under their organic statutes.

A national policy for the environment would have had no more than symbolic significance had the environmentally indifferent outlook of the federal environment-shaping agencies continued unchanged. If the time had come for the Congress to restate national priorities in relation to the quality of life and the environment, the [9 ELR 50002] time had also come for it to redirect the priorities of its own agents toward conformity with these newly declared national purposes. A mere declaration of policy, however, was deemed unlikely to have significant practical effects if unaccompanied by an action-forcing provision requiring specific behavior by the agencies. Yet an action-forcing mechanism would inevitably lead to controversy as these new national priorities came into conflict with older established goals not readily changed or redefined.

As expected, the practical effect of NEPA was first felt through the environmental impact statement provision,6 an action-forcing requirement. Initially those seeking to enforce the law focused more upon the EIS than upon the action that the EIS was intended to influence. And the route to nullifying NEPA was likewise perceived by opponents to be through its action-forcing procedures. Attacks upon the Act have centered largely on problems associated with the impact statement itself rather than the substantive provisions of the Act.7 In part, this may reflect public opinion which appears in principle committed to environmental protection but does not readily understand the complexity of EIS procedures.8

Although its effects were felt almost immediately upon enactment, NEPA was conceived by its drafters as legislation for the long run — intended in effect to supplement, reinforce, or amend other federal legislation.9 To a greater extent than many federal statutes, NEPA was designed with careful and informed regard to how it would relate to other public laws, priorities, and mandates. Much of its sophistication derives from the ways in which it both compensates for the traditional "tunnel vision" of many programs that affect the environment and provides value criteria which add meaning to other multipurpose or multiple-use directives already in effect.

To understand NEPA one must first understand the difference between declaring and implementing a policy. Congress may do the former, but it cannot easily do the latter. Implementation is a function of the executive branch which under the Constitution of the United States is charged with administering the acts of Congress with due regard to the interpretation of those acts by the judiciary. A distinction must also be drawn between mandatory provisions, which are strictly enforced by the judiciary, and those that are interpreted as having a discretionary character and are enforced by the courts only in cases of unequivocal violation or disregard.

In NEPA, Congress announced a ringing national commitment to environmental values. Section 101(a) declares that:

it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures … to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.10

Section 101(b) enunciates six broad goals of national environmental policy, declaring it "the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate federal plans, functions, programs and resources" to these ends.11 In contrast to these general policy declarations, § 102 directs that to the fullest extent possible "the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the plicies set forth in this Act.12 Subsequent paragraphs of § 102 impose more specific procedural obligations: a systematic, interdisciplinary approach is to be used in federal planning and decision making,13 appropriate consideration is to be given in decision making to unquantified environmental amenities and values,14 and for every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the environment, the responsible official must prepare a detailed statement on:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.15

This last provision, § 102(2)(C), is the EIS or principal action-forcing requirement of the Act which because of its explicit character has proven readily accessible to judicial review. The other provision of § 102 are no less mandatory although agency compliance may be less easily assessed. The declaratory provisions of § 101, on the other hand, require no specific agency action and are therefore less readily subject to scrutiny by the courts.This distinction was basic to the first definitive interpretation of NEPA by the United States Court of Appeals for the District of Columbia Circuit, in the seminal case of Calvert Cliffs Coordinating Committee v. Atomic Energy Commission.16 The court found the general substantive provisions of the Act to be flexible, leaving room for "a responsible exercise of discretion" by the implementing agency and not necessarily requiring "particular substantive result in a particular problematic situation." In contrast, the more detailed mandate of the EIS provision was found to "establish a strict standard of compliance" and be amenable to rigorous judicial enforcement.

[9 ELR 50003]

The substantive portions of NEPA are nevertheless valid law and are binding on the President and the agencies. Achievement of the comprehensive goals of NEPA relies to a large extent upon the responsible exercise of administrative discretion; hence, widespread noncompliance is due less to shortcomings in the Act than to insufficient presidential support. Congress must also share responsibility for failure to secure full implementation. Responding to client group pressure and shifting national exigencies (e.g., the energy crisis), congressional committees have sometimes adopted policies inconsistent with the principles declared in NEPA.

Nevertheless, the substantive provisions of NEPA are not wholly at the mercy of non-reviewable executive discretion. Federal courts have for the most part agreed that the policy provisions of NEPA do establish executive responsibilities that cannot be neglected with impunity. A number of courts have found it appropriate, along with their review of agency performance under the mandatory provisions of NEPA, to scrutinize the agency's exercise of its discretion on the merits for serious dereliction respecting the substantive provisions in § 101.17 "Our duty, in short," wrote Judge J. Skelly Wright in the Calvert Cliffs decision, "is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy."18

A Valid Case Against NEPA?

In brief, the argument against NEPA is that its alleged benefits are illusory, and that rather than advancing the goals of environmental protection NEPA has in fact retarded them.19 Critics seldom attack the declared goals of NEPA — although some skeptics view them as utopian. The intent of the Act is widely regarded as meritorious, stating laudatory environmental goals which should be sought, consonant with other important human needs and values. Other legislative proposals in the 90th and 91st Congresses contained symbolic statements of national environmental policy, but only NEPA contained an action-forcing provision designed to translate principle into practice. But regardless of intent, has NEPA actually advanced its declared purpose, or has it been counter-productive in the environmental movement?

The case against NEPA consists basically of the following five allegations:

(1) Preoccupation with NEPA procedures has diverted attention from broadening the environmental responsibilities of agencies, which they could better have redefined for themselves, and have instead focused agency energies on preparing and analyzing documents;

(2) NEPA was unnecessary as the courts had already found an agency obligation to consider environmental impacts;

(3) NEPA has obstructed the dialogue between agencies and the public that was developing in the late 1960s;

(4) NEPA has distorted the direction of scientific inquiry by putting tremendous amounts of money into applied rather than pure research; and

(5) NEPA assumes an unrealistic decision-making process characterized by abstract rationality and focused on a single responsible decision maker who, even if he did exist, could hardly be expected to undertake the investigation of alternatives that the Act requires.

The first charge goes to the heart of the merits of the Act: has NEPA diverted attention from the substance of environmental protection to EIS procedures? Although some federal agencies had specific environmental protection mandates prior to NEPA, most did not. Agency concern for the environment prior to NEPA's passage was uneven and often inconsistent. A basic purpose of NEPA, as is clearly evident from the legislative history of the Act,20 the writings of leading commentators,21 and in [9 ELR 50004] the court opinions construing the statute,22 was to redefine agency responsibility in relation to the environment. Rather than "truncat[ing] preexisting and potentially significant developments in the definition of agency responsibility for environmental protection,"23 NEPA, notably through § 103,24 opened the way for agencies to remove any obstacles to conformity with the broad intent of the Act. Nor does an agency fulfill NEPA's requirements simply by preparing an adequate EIS — unless the test of adequacy includes agency consideration of the substantive goals declared by Congress, along with the systematic and interdisciplinary balancing of values that the Act requires.

There is need for research on the extent to which agencies have internalized the environmental mandates of NEPA and lived up to the commitments implied in their environmental impact statements. It is important to learn how agencies monitor and encourage internal compliance with NEPA; how they utilize environmental policy offices; whether they have seriously attempted to fulfill the § 103 obligation regarding statutory obstacles to compliance; and what role their legal officers have played in relation to EIS procedures.25 But there is already sufficient evidence of NEPA's effectiveness in promoting reorientation of agency missions to cast considerable doubt over the alleged diversionary effect of NEPA in relation to environmental quality goals. Agency testimony during the 1975 oversight hearings on NEPA, for example, refutes the charge that the NEPA process hs simply caused the substitution of paper work for constructive environmental action.26

The claim that excessive paper work is inherent in the NEPA process is not substantiated by investigations of the Commission on Federal Paperwork, the General Accounting Office, or the Councilon Environmental Quality.27 This is not to say that impact statements have not sometimes been burdened with irrelevant data and carried to excess in length and detail. As happens with other statutory law, adversaries have found in the EIS an instrument to advance ulterior objectives, making environmental impact statements a battleground for other issues.28 Agencies have sometimes overloaded impact statements because of uncertainties regarding what was expected of them, and in response to real or anticipated requirements of the courts. Impact analysis has been a learning process, and early efforts erred both on the side of excess and of deficiency. But these abuses are inevitable concomitants of the EIS procedures as required by NEPA.

The second charge, that NEPA was unnecessary as the courts had already found an agency obligation to consider environmental impacts, falls short of the mark for the following reason: such obligations as the courts may have found prior to NEPA were of very limited applicability. For example, in the widely cited case of Scenic Hudson Preservation Conference v. Federal Power Commission.29 the Second Circuit did indeed infer from [9 ELR 50005] § 10(a) of the Federal Power Act30 a congressional command to the agency to consider the environmental implications of its actions. But because the court focused narrowly on one provision within a statute applicable to only one agency, the case stands as an island in the law. It by no means announced as a general rule that federal agencies must assess and give substantive consideration to environmental impacts of proposed activites. On the contrary, to ask the courts to find statutory environmental mandates on a case by case basis would in many instances have been a call for a fruitless search.31 In any event, the process would have consumed a massive amount of judicial and administrative resources, and permitted environmental degradation to proceed unchecked in the interim. NEPA was necessary to fill in the gaps, remove the doubts, and give coherence and specificity to the statutory obligations then extant. As one commentator concluded from a study of the implementation of NEPA:

Reviewable, predecision statements of impact and alternatives have proven an important reform in the governmental process, on both rational and democratic grounds: …. They also continue a trend toward rationality and accountability in government…. Such progress should not be lightly discarded.32

In addition, unlike the Administrative Procedure Act (which is by definition procedural), NEPA is intended to force agencies to pay attention to a substantive policy — to statutory goals and criteria to which Congress has directed the agencies to conform to the fullest extent possible.33

A third charge, that NEPA stultified the dialogue between agencies and the public and sidetracked more useful preexisting developments, is based on the dubious presumption that such a dialogue existed at the time. But the pro forma public hearings of many federal agencies prior to NEPA's passage were more often ritualistic exercises in citizen frustration than true dialogues. Moreover, nothing in NEPA limits citizen participation to a process of reviewing and filing documents to the exclusion of other involvement in public decisions. The large volume of EIS litigation and the numerous seminars and conferences concerned with EIS procedures suggest that the true effect of NEPA was to foster public demand for input into decision making affecting the environment, and to stimulate the exercise of this right in all forums. The principal volunteer environmental action groups, such as the National Audubon Society, the Izaak Walton League, the Sierra Club, the Wilderness Society, and the National Wildlife Federation, show no less concern for legislation, appropriations, and program commitments than before NEPA. On the contrary, since NEPA's passage they have been in a more knowledgeable position from which to challenge agency reticence and exclusiveness on policy matters and to do so on a timely basis. The right of citizens to comment on draft impact statements provides a legal basis for citizen-agency dialogue that is not, as it once was, largely discretionary with federal administrators.

A fourth assertion, that NEPA has distorted the direction of scientific inquiry away from pure research, overstates the Act's influence. This proposition would be plausible only if NEPA had diverted substantial sums of money and scientific talent from basic research into environmental impact analyses or had consumed money in such analyses that might otherwise have been allocated to scientific research. While programmatic budget analysis and legislative appropriation data could illuminate this issue, it is clear that congressional committees, not NEPA, determine what balance is appropriate between applied and basic research. A broad spectrum of environmental statutes relating to the quality of air and water, to toxic substances, and to the management of wasts has doubtless increased the relative proportion of applied as contrasted with theoretical research. The direct impact of NEPA on research, however, has probably been less than its drafters hoped. Section 204(5) declares it the "duty and function" of the CEQ "to conduct investigations, studies, surveys, research, and analyses relating to ecological systems and environmental quality."34 This function was transferred to the Environmental Protection Agency (EPA) under Reorganization Plan No. 3 of 1970. Although EPA may not have implemented this provision in the direction that some scientists would regard as most productive in the long run, it does not follow that the impact of NEPA on science has been deleterious. The allegation that NEPA makes bad science and has placed "the advancement of the scientific method … in jeopardy"35 was effectively countered by Russell W. Peterson while Chairman of CEQ.36

The greater part of environmental research in government laboratories, universities, and some private organizations depends upon congressional appropriation. Applied research in private industry has certainly been influenced by environmental protection legislation relating to air, water, solid waste, and toxicants. In relation to federal funding, however, Congress, not NEPA, sets the priorities. Furthermore, the boundaries between basic and applied research are at best relative, and the expression "pure research" is no longer commonly heard [9 ELR 50006] among science professionals. The need for the advancement of scientific knowledge pertaining to environmental relationships has been asserted by a number of scholars including this author.37 The need for advancement of scientific knowledge and understanding is implicit throughout NEPA. To assert that NEPA rests on the assumption that there is virtue in simply amassing and circulating scientific data suggests a naivete and a tolerance for scientific busywork that seems wholly inconsistent with the publicly expressed attitudes and values of the congressional sponsors of the Act.

The fifth, and possibly most poorly founded charge of all is that the requirements of NEPA make little sense as an instrument of internal agency change, partly because of an inherent misconception of the nature of the decision-making process. It is hard to believe that the congressional architects of NEPA (notably Senators Jackson and Muskie, and Congressmen Daddario and Dingell) did not understand decision processes in government! The viewpoints of experienced students of public administration were sought by the congressional committees.38 Neither they nor committee staff members have been identified as committed to any particular model of bureaucratic decision making — and several are known to be skeptical of "rational hierarchical" models.

The drafters of NEPA realized full well that proposals adversely affecting environmental quality nevertheless have advocates, and that agency commitment to programs and projects is not neutral but rather weighted toward certain clients and constituents. This recognition was in fact a major reason for adoption of NEPA and the EIS mechanism. Persons familiar with public administration know that any major agency effort is the product of many decisions and decision makers. But in historical practice many parties whose participation could have increased the probability of informed and balanced decisions were left out. This is precisely why § 102(2)(A) requires "the integrated use of the natural and social sciences and the environmental design arts in planning and decisionmaking which may have an impact upon man's environment."39

Related to the argument that NEPA assumes an unrealistic degree of abstract rationality on the part of a single responsible official is the allegation that NEPA burdens the agencies with an unreasonable search for alternatives. It should be apparent that the designation of a particular official as being responsible for a specific decision does not imply that he alone prepares the statement or undertakes the analysis upon which it is based. The requirement that agencies consider alternatives to proposed action reinforces what should in any case be considered as good planning and budget practice. Moreover, the courts in interpreting NEPA have found that the alternatives which agencies must consider are not infinite and need not extend beyond the limits of reasonableness.40

Evaluating the Evidence

While it is not possible within the confines of this article to weigh all of the evidence for and against the effectiveness of NEPA, it is nonetheless possible to conclude that the case against NEPA is not supported by the weight of the available evidence. The greater weight of testimony and research supports the conclusion that the Act has worked largely as intended.41 Misuses of the EIS have been documented,42 and the best friends of NEPA have never questioned the need to correct, clarify, and streamline EIS procedures.43 Critics have tended to rely on abuses occurring in the earlier years of experience with the EIS, however, seldom undertaking an in-depth examination of the context of such incidents, and often ignoring subsequent remedial measures. But many controversies are complex, and the underlying reasons for the strategies of contending parties are not easily discovered. For example, the case of the more than 200 impact statements that the Bureau of Land Management was required by court order to prepare on its livestock grazing program44 has been cited as an example of exorbitant costs imposed by NEPA upon important public services.45 In fact, closer examination of this case reveals that a substantial part of the costs attributed to EIS preparation would be more properly assigned to the administrative action for which an EIS was required. There is temptation for agencies to load planning costs onto EIS preparation, thus improving appearances in relation to economy and efficiency. What may on occasion seem to be excessive costs imposed by NEPA may thus, in fact, be a function of agency cost accounting procedures.

[9 ELR 50007]

Merely to total the time and money attributed to EIS procedures tells us little about their net cost or effectiveness. A more convincing calculus would be to compare the added costs of NEPA compliance with the costs of errors and conflicts avoided because of NEPA analysis. This would of course be difficult to do as the benefits of environmental protection are often unquantified and long-term.46 In addition, whereas gross dollar costs can be calculated on an adding machine, the costs of opportunities foregone (either environmental or economic) may not be calculable. Moreover, the value judgments of informed people may differ as to whether in given cases costs should be borne primarily by the environment or by the economy.

The argument that NEPA has somehow diverted attention from substantive environmental protection efforts to paper work is specious. The volume of legislation and administrative action directed to the substance of policy has increased enormously since NEPA's enactment. The environmental law output of the 94th Congress alone exceeded 1,600 pages, the greater part of which relates to substantive issues.47

Twenty-six states have adopted variants of the EIS process.48 Although state experience with these provisions has been mixed, the trend is toward increasing the strength and scope of the required EIS procedures. The requirements in California and New York in fact are now in some respects stronger and broader than the federal statute. While it is still too early to make significant generalizations about the use of EIS statutes at the state and local levels,49 their widespread adoption suggests that their national model is widely perceived as effective rather than the reverse.

In addition, the interest in NEPA abroad is growing. "[O]ther countries are steadily progressing toward fitting the environmental assessment mechanism to their own needs and procedures."50 The European Economic Community, for example, is attempting to adapt the EIS procedure to transnational environmental problems in Europe.51 And on July 21, 1978, the United States Senate adopted a Resolution calling for the development of an international EIS process.52 Thus, despite its vulnerabilities and unresolved problems, the EIS appears, at least in principle, to provide an answer to the widely felt need for environmental assessment and protection. These developments may not demonstrate that present EIS procedures are the most effective possible, but they do suggest both actual and potential value rather than inherent counter-productivity.

After examining both the larger dimensions of NEPA and its more specific applications, it is hard to dismiss NEPA as either ineffective53 or counter-productive. The Act is only one among many intended to protect and improve the quality of the human environment, and nine years is not a sufficient span in which to assess whether its ambitious goals have been achieved,although very substantial progress has been made in improving its implementation. President Carter's Executive Order of May 24, 197754 calling for major reforms in EIS procedures will, once it is fully implemented, go a long way toward answering the more serious charges of informed and responsible critics.In view of general agency acceptance of NEPA principles, or growing agency experience with environmental impact analysis, and of the new regulations55 which supplant the earlier CEQ guidelines, the prospects for even more effective and economical implementation of NEPA are encouraging.

1. See, e.g., Bardach & Pugliaresi, The Environmental Impact Statement vs. the Real World, 49 THE PUBLIC INTEREST 22 (1977); Fairfax, A Disaster in the Environmental Movement, 199 SCIENCE 743 (1978); Schindler, The Impact Statement Boondoggle, 192 SCIENCE 509 (1976).

2. Judge Henry J. Friendly perspicaciously warned early on that NEPA "is so broad, yet so opaque that it will take even longer than usual to comprehend its impact." City of New York v. United States, 337 F. Supp. 150, 159, 2 ELR 20275, 20276 (E.D.N.Y. 1972).

3. Public opinion polls and the constituent pressure felt by many Congressmen support the proposition that environmental protection was a grass roots issue with relatively broad but unfocused public support. See Munton & Brady, American Public Opinion and Environmental Protection (Behavioral Science Laboratory Research Report, Ohio State University, Columbus, 1970); The U.S. Public Considers Its Environment (Gallup Organization survey for the National Wildlife Federation, 1969); and Environment Has Become and Enduring Public Concern, 57 RESOURCES 1 (1978). For further analysis of the state of public opinion preceding NEPA, see S. NAGEL, ENVIRONMENTAL POLITICS 195-224 (1974), and C. TROP & L. L. ROOS, THE POLITICS OF ECOSUICIDE 52 (1971).

4. For descriptions of these adversary actions from an environmental perspective, see generally L. K. CADWELL, L. R. HAYES & I. M. MacWHIRTER, CITIZENS AND THE ENVIRONMENT (1976).

5. See, e.g., New Hampshire v. AEC, 406 F.2d 170 (1st Cir.), cert. denied, 395 U.S. 962 (1969) (AEC can consider only radiation hazards and ignore thermal pollution in approving reactor construction permit under Atomic Energy Act of 1954). Presidents have attempted unsuccessfully to transfer civil works functions from the Corps of Engineers, and the federal agencies still exercise a high degree of autonomy. See H. LEAVITT, SUPERHIGHWAY — SUPERHOAX (1970); A. MAASS, MUDDY WATERS: THE ARMY ENGINEERS AND THE NATION'S RIVERS (1951); and CONSERVATION FOUNDATION, SOUTHWEST ENERGY COMPLEX: A POLICY EVALUATION (1974).

6. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

7. 42 U.S.C. § 4331(b), ELR STAT. & REG. 41009.

8. See Environment Has Become and Enduring Public Concern, 57 RESOURCES 1 (1978).

9. See F. ANDERSON, NEPA IN THE COURTS 5-7, 9 (1973).

10. 42 U.S.C. § 4331(a), ELR STAT. & REG. 41009.

11. 42 U.S.C. § 4331(b), ELR STAT. & REG. 41009.

12. 42 U.S.C. § 4332(1), ELR STAT. & REG. 41010.

13. 42 U.S.C. § 4332(2)(A), ELR STAT. & REG. 41010.

14. 42 U.S.C. § 4332(2)(B), ELR STAT. & REG. 41010.

15. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

16. 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972).

17. See EDF v. Corps of Engineers, 492 F.2d 1123, 4 ELR 20329 (5th Cir. 1974); Sierra Club v. Froehlke, 486 F.2d 946, 3 ELR 20823 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 3 ELR 20698 (1st Cir. 1973); Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 3 ELR 20132 (4th Cir. 1973); EDF v. Corps of Engineers, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972), cert. denied, 412 U.S. 931 (1973); Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972). Contra, Lathan v. Brinegar, 506 F.2d 677, 4 ELR 20802 (9th Cir. 1974); National Helium Corp. v. Morton, 486 F.2d 995, 4 ELR 20041 (10th Cir. 1973). See also, Robie, Recognition of Substantive Rights Under NEPA, 7 NAT. RESOURCES J. 387 (1974); Note, The Least Adverse Alternative Approach to Substantive Review Under NEPA, 88 HARV. L. REV. 735 (1974).

18. 449 F.2d 111, 1 ELR at 20347.

19. See, e.g., Fairfax, A Disaster in the Environmental Movement, 199 SCIENCE 743 (1978).

20. Commentators on NEPA have generally paid insufficient attention to its legislative history. Principal documents which merit examination include: STAFF OF THE SUBCOMM. ON SCIENCE, RESEARCH AND DEVELOPMENT OF THE HOUSE COMM. ON SCIENCE AND ASTRONAUTICS, 90th Cong., 2d Sess., MANAGING THE ENVIRONMENT (Comm. Print 1968); SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS, A NATIONAL POLICY FOR THE ENVIRONMENT, 90th Cong., 2d Sess. (Comm. Print 1968); SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS AND HOUSE COMM. ON SCIENCE AND ASTRONAUTICS, 90th Cong., 2d Sess., CONGRESSIONAL WHITE PAPER ON A NATIONAL POLICY FOR THE ENVIRONMENT (Comm. Print 1968); S. 1075 — Introduction of Bill to Establish a National Strategy for the Management of Human Environment, 115 CONG. REC. S1780 (daily ed. February 18, 1969); National Environmental Policy — Hearing on S.1075, S.237 and S.1752 Before the Senate Comm. on Interior and Insular Affairs, 91st Cong., 1st Sess. (April 16, 1969); and H.R. REP. NO. 765, 91st Cong., 1st Sess. (1969) (conference report). A more detailed account of the drafting of NEPA appears in Finn, "Conflict and Compromise: Congress Makes a Law — The Passage of the National Environmental Policy Act" (unpublished doctoral dissertation, Georgetown University, 1972).

21. Among the principal analyses and evaluation of NEPA are: F. ANDERSON, NEPA IN THE COURTS (1973); R. N. L. ANDREWS, ENVIRONMENTAL POLICY AND ADMINISTRATIVE CHANGE: THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (1976); R. A. LIROFF, A NATIONAL ENVIRONMENTAL POLICY FOR THE ENVIRONMENT: NEPA AND ITS AFTERMATH (1976); Congressional Research Service, Workshop on the National Environmental Policy Act, prepared for Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 94th Cong., 2d Sess. (comm. Print 1976); Administration of the National Environmental Policy Act, Parts I, II and Appendix, Hearings before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House comm. on Merchant Marine and Fisheries, 91st Cong., 2d Sess. (Comm. Print 1970); Administration of the National Environmental Policy Act — 1972, Hearings before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess. (Comm. Print 1972); and Oversight Hearings on the Administration of the National Environmental Policy Act of 1969, Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 94th Cong., 2d Sess. (Comm. Print 1976).

22. See generally, O. S. GRAY, CASES AND MATERIALS ON ENVIRONMENTAL LAW (2d ed. 1973, suppl. 1977); E. H. HANKS, A. D. TARLOCK & J. L. HANKS, ENVIRONMENTAL LAW & POLICY (1974); and FEDERAL ENVIRONMENTAL LAW (Dolgin & Guilbert eds. 1974).

23. Fairtax, A Disaster in the Environmental Movement, 199 SCIENCE 743 (1978).

24. 42 U.S.C. § 4333, ELR STAT. & REG. 41010. Section 103 directed all federal agencies to review their existing statutory authorities and regulatory policies and propose any measures necessary to bring these authorities and policies into conformity with NEPA's purposes and procedures.

25. More current studies of the NEPA process in the agencies are needed. A careful study by Richard N. L. Andrews of the implementation of NEPA, ENVIRONMENTAL POLICY AND ADMINISTRATIVE CHANGE: THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (1976), showed mixed compliance with NEPA goals, but was limited to two agencies and reflected experience early in the history of the Act.

26. "The intent of NEPA is being strongly built into our decision and into our employee awareness." Administration of the National Environmental Policy Act, Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 94th Cong., 1st Sess. 27 (1976) (testimony of George L. Turcott, Associate Director, Bureau of Land Management).

Perhaps the most important lesson learned in the Corps, as we have implemented the National Environmental Policy Act, is that the environmental considerations of a project must be an integral part of the planning and decision-making process.

Id. at 5 (testimony of Brigadier General Kenneth E. McIntyre, Associate Director of Civil Works, Corps of Engineers.)

Implementing these procedures (NEPA) has had a number of positive results. It has made planners more sensitive to environmental effects by requiring their consideration at an early stage of the decisionmaking process. As a result, by the time the planning reaches the stage of preparation of the impact statement, a project is already more compatible with the preservation of the environment than it might otherwise have been. It has provided a systematic way of coordinating interagency comments and interdisciplinary skills to produce more sophisticated decisions.

Id. at 51 (testimony of John Hart Ely, General Counsel, Department of Transportation). These statements may be regarded by skeptics as self-serving, but their validity is corroborated by a growing volume of case studies of NEPA's impact on agency decision making. See, e.g., Randolph & Ortolano, Effect of NEPA on the Corps of Engineers New Melones Project, 1 COLUM. J. ENVIRON. L. 233 (1975); Shane, NEPA in Action: The Impact of the National Environmentl Policy Act in Federal Decision-Making (CEQ 1975).

27. GENERAL ACCOUNTING OFFICE, IMPROVEMENTS NEEDED IN FEDERAL EFFORTS TO IMPLEMENT THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, Rep. No. B-170186 (May 18, 1972); GENERAL ACCOUNTING OFFICE, IMPACT STATEMENT — IT SELDOM CAUSES LONG PROJECT DELAYS BUT COULD BE MORE USEFUL IF PREPARED EARLIER, Rep. No. B-170186 (Aug. 9, 1977); Environmental Impact Statement: A Report of the Commission on Federal Paper Work (Feb. 25, 1977); and COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL IMPACT STATEMENT — AN ANALYSIS OF SIX YEARS' EXPERIENCE BY SEVENTY FEDERAL AGENCIES (Mar. 1976).

28. Cahn, The Impact of NEPA on the Public Perception of Environmental Issues, 6 ELR 50010 (1976). See also, Rubin, The Dangers Posed by Irresponsible Tactics of Environmental Interest Groups, 24 CORNELL L. FOR. 6-7 (1972).

29. 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965). For discussion of the scope of thisdecision, see A. REITZE, ENVIRONMENTAL PLANNING: LAW OF LAND AND RESOURCES 1-36 (1974); Tarlock, Preservation of Scenic Rivers, 55 KY. L.J. 745, 770 (1967).

30. 16 U.S.C. § 803(a). Section 10(a) conditions issuance of a license on a finding by the FPC that the proposed project is "best adapted to a comprehensive plan for improving or developing a waterway … for other beneficial public uses including recreational purposes…." It was this last phrase that the Second Circuit construed to encompass the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites, noting an earlier decision holding that the FPC had the power to deny a license on environmental grounds. Namekagon Hydro Co. v. FPC, 216 F.2d 509 (7th Cir. 1954).

31. See, e.g., New Hampshire v. AEC, 406 F.2d 170, cert. denied, 395 U.S. 962 (1969) (AEC need not consider thermal pollution in approving reactor construction license under Atomic Energy Act of 1954).

32. Andrews, supra note 21 at 161.

33. See generally, Wright, New Judicial Requisites for Informal Rulemaking: Implications for the Environmental Impact Statement Process, 29 AD. L. REV. 59 (1977).

34. 42 U.S.C. § 4344(5), ELR STAT. & REG. 41011.

35. Schindler, The Impact Statement Boondoggle, 192 SCIENCE 509 (1976).

36. See Peterson, The Impact Statement — Part II, 193 SCIENCE 193 (1976).

37. See, e.g., Carpenter, The Scientific Basis of NEPA — Is It Adequate?, 6 ELR 50015 (1976). Caldwell, Research to Anticipate Environmental Impact of Changing Resource Usage 89 (Stanford Research Institute, Menlo Park, California, 1976).

38. E.g., Don K. Price, Professor of Government at Harvard University, chaired the 1968 joint Senate-House Colloquium to discuss a national policy for the environment.

39. 43 U.S.C. § 4332(2)(A), ELR STAT. & REG. 41010.

40. Cf. Natural Resources Defense Council v. Morton, 485 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972); Chamousis, 2 COLUM. J.L. SOC. PROB. 22 (1976).

41. See sources cited supra in notes 22, 25, 27, and 28. But see Dreyfus & Ingram, The National Environmental Policy Act: A View of Intent and Practice, 16 NAT. RESOURCES J. 243 (1976) ("… the objectives were expanded during implementation, and the impact of the Act was enhanced beyond initial expectations ….").

42. Motives behind the use of NEPA for purposes for which it was not intended are sometimes transparent. Action by oil companies invoking the EIS requirement to block emergency oil allotments, Gulf Oil Corp. v. Simon, 502 F.2d 1154, 4 ELR 20367 (Temp. Emer. Ct. App. 1974), and anti-trust orders, Mobil Oil Corp. v. FTC, 430 F. Supp. 855, 7 ELR 20326, rev'd, 562 F.2d 270, 7 ELR 20705 (2d Cir. 1977), are examples, as is the Environmental Protection Agency's "threat" to invoke the EIS process in relation to decontrol of gasoline prices. See 76 OIL & GAS J. 26 (1978) and U.S. OIL WEEK (July 19, 1978).

43. Such a revision of EIS procedures was in fact recently accomplished with the publication of CEQ's final NEPA regulations, 43 Fed. Reg. 55978 (Nov. 29, 1978), ELR STAT. & REG. 46001. See Comment, New Rules for the NEPA Process: CEQ Establishes Uniform Procedures to Improve Implementation, 9 ELR 10005 (Jan. 1978).

44. Natural Resources Defense Council v. Morton, 388 F. Supp. 829, 5 ELR 20327 (D.D.C. 1974).

45. See Bardach & Pugliaresi, supra note 1, and recent research by P. H. Friesema and P. J. Culhane to be published in a forthcoming issue of the Natural Resources Journal.

46. Although the benefits of the NEPA process may not be susceptible to accurate quantification, they can nevertheless be identified with particularity in many instances. CEQ Chairman Russell W. Peterson noted that:

[a]s a direct result of the EIS process … the Trans-Alaska oil pipeline was redesigned to avoid adverse environmental impacts, plans for surface storage of nuclear wastes have been postponed for more thorough study, dams and other water resource projects that would have destroyed valuable natural systems have been modified or cancelled, and literally scores of major highway and airport projects have been redesigned or eliminated. On this evidence alone, the EIS process has already proved its worth.

193 SCIENCE 193 (1976).

47. Congressional Research Service, Congress and the Nation's Environment — Energy and Natural Resources Action of the 94th Congress (Jan. 1974).

48. See COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — 1977 130-35 (1977).

49. See Pearlman, 43 PLANNERS 42 (1977).

50. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — 1975 653 (1975).

51. See Wandesforde-Smith, "Environmental Impact Assessment in the European Communities" (International Institute for Environment and Society, Wissenschaftszentrum, Berline). (Manuscript in draft.)

52. S. Res. 49, 95th Cong., 2d Sess., 124 CONG. REC. S11522 (daily ed. July 21, 1978).

53. "It is hard to dismiss as ineffectual a statute which the Corps of Engineers says caused it to drop 24 projects, temporarily or indefinitely delay 44, and significantly modify 197 more." Comment, The National Environmental Policy Act: How It Is Working, How It Should Work, 4 ELR 10003 (1974).

54. Executive Order 11991, 42 Fed. Reg. 26967 (May 25, 1977), ELR STAT. & REG. 45003.

55. 43 Fed. Reg. 55978 (Nov. 29, 1978), ELR STAT. & REG. 46001.

9 ELR 50001 | Environmental Law Reporter | copyright © 1979 | All rights reserved