action; the "umbrella type" impact statement would appear to me to satisfy the statutory requirements. Further, I personally believe that more precise and reasoned agency factual determinations on the issues of "major Federal action" and "significantly affecting the quality of the human environment" would go a long way toward reducing the volume of judicial tests to which agency action might be subjected under NEPA. We agree with the statement of the U.S. Court of Appeals for the District of Columbia Circuit in EDF v. Ruckelshaus, 2 ERC 1114, 1122 (1971):

"Judicial review must operate to ensure that the administrative process itself will confine and control the exercise of discretion. Courts should require administrative officers to articulate the standards and principles that govern the discretionary decisions in as much detail as possible. Rules and regulations should be freely formulated by administrators and revised when necessary. Discretionary decisions should more often be supported with findings of fact and reasoned opinions. When administrators provide a framework for principled decisionmaking, the result will be to diminish the importance of judicial review by enhancing the integrity of the administrative process, and to improve the quality of judicial review in those cases where judicial review is sought."

Not all courts would agree with the above views of Chief Judge Bazelon. Some courts as indicated by Scherr construe the generic language of NEPA as giving rise to questions of law, as distinguished from questions of fact, and as calling for broad judicial review under the provisions of the Administrative Procedure Act. For this reason it is felt that a greater likelihood of improvement in the administration and workability of NEPA would result from the type of amendment we have proposed which endeavors to require the agencies to make factual determinations on the basic questions of "major Federal action" and "significantly affecting".

After giving considerable thought to the question, we conclude that a relatively short time period should limit the challenges of agency action under a statute like NEPA. With such a broad far-reaching type law it is not in anyone's interest to perpetuate uncertainty as to agency determinations. Reasonably prompt finality is essential. We do not believe that the doctrine of either laches or estoppel are effective bars to delayed or untimely action under NEPA. Neither of these doctrines has ever been popular in actions against the government. Their acceptance seems even less likely in environmental suits. As recently as April 4, 1972 the U.S. Court of Appeals for the Fourth Circuit in Arlington Coalition v. Volpe, 3 ERC 1995, 1999 (1972) stated:

"Appellees as representatives of the general public and specific interest groups will be prejudiced by appellants' delay in bringing suit if the proposed route for Arlington I-66 is altered or abandoned. Most of the right-of-way for the proposed route has been acquired; Arlington County's planning with respect to zoning, traffic, and location of utilities has been based upon the route; and the location of numerous businesses has been chosen in reliance upon the route. Appellants could have brought suit earlier to minimize or avoid this harm; all of the relevant statutes were in effect by January 1, 1970, but appellants did not file suit until February 19, 1971. Nevertheless, we decline to invoke laches against appellants because of the public interest status accorded ecology preservation by the Congress."

Also, it should be remembered that the private interests who suffer damages or injury from belated challenges are seldom parties to the litigation since the judicial proceedings are usually brought against the government. This circumstance tends to inhibit particularly any applications of the doctrine of estoppel. In response to your question as to the type of criteria which might be considered by the agencies, we would suggest that in determining whether action is "major Federal action" the following criteria might be weighed : The size and nature of the project or program involved;

Whether the contemplated action is an implementing step of broader agency action for which an environmental impact statement has already been filed; The relative level of other than pro forma approval required for the contemplated action;

Whether the action calls for substantial Federal expenditures;

The size and nature of the geographic area involved;

The number of persons who might be affected;

The amount of planning and agency time involved.

Criteria for determining "significantly affecting the quality of the human environment" would include:

Whether the proposed action represents a significant change from existing Federal programs or policies which past experience has shown have not adversely affected the environment;

The size and nature of the geographic area involved;

The presence or absence of empirical data relating to the predictability and magnitude of environmental changes likely resulting from the proposed action; The availability of procedures and means to avoid or to minimize unexpected

occurances.

I hope that the foregoing answers the questions you asked us to consider. We, of course, stand ready to try to answer any additional questions you may have. Again I want to express my personal appreciation as well as that of the American Petroleum Institute for the courtesy and interest you have shown us. Sincerely,

STARK RITCHIE,

NOTE. Additions have been underlined and deletions crossed out.

APPENDIX A

Section 102. The Congress authorizes and directs that, to the fullest extent practicable, consistent with other essential considerations of national policy, (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall

(A) Utilize a systematic. interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making may have an impact on man's environment;

(B) Identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by Title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along the economic and technical considerations;

(C) Include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official 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 which are within the jurisdiction of the agency,

(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.

Each agency, after consultation with the Council on Environmental Quality, shall by regulation establish criteria to determine which of its actions (1) constitute a major Federal action, and (2) significantly affect the quality of the human environment. In establishing both such criteria the agency shall consider the size and nature of the area involved, the amount of planning, time, resources and Federal expenditures, past experience, and whether the proposed action represents a significant change from existing Federal programs, practices or policies. The responsible official shall factually determine whether, under said criteria, a proposed action requires a detailed statement and, if so, whether the contents of such statement satisfies the requirements of this Section. In the event more than one substantially identical major Federal action significantly affecting the quality of the human environment within a specific geographic area are contemplated the responsible official may prepare one detailed statement covering all of such actions.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and

enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by Section 552 of Title 5, United States Code, and shall accompany the proposal through the existing agency review processes. After issuance of a detailed statement, subsequent agency actions covering matters contemplated by the action giving rise to that statement shall not require subsequent statements unless the agency has determined that a substantial change of conditions has occurred.

Any petition (1) for review of agency regulations establishing criteria or (2) seeking an interlocutory or permanent injunction restraining the action of any official of the United States based on or arising out of an environmental impact statement or a decision not to issue a statement, shall be filed within 30 days from the date of publication of such regulations in the Federal Register, or the taking of such action by said official, or after such date if such petition is based solely on grounds arising after such 30th day.

The requirement of an environmental impact statement and other procedural matters shall not apply to specified environmentally protective regulatory actions as may be particularly identified as to agency and action by regulations promulgated by the Council on Environmental Quality.

In any litigation based on or arising out of the National Environmental Policy Act in which the plaintiff is seeking an interlocutory or permanent injunction to restrain the action of an official of the United States, any party who may be adversely affected by such litigation shall be allowed to intervene as a matter of right. In this event, the plaintiff shall be responsible to such intervener for any damages where the final decision of the litigation is to deny the permanent injunction.

(D) through (H) to remain as presently written.

Mr. DINGELL. Mr. Potter?

Mr. POTTER. The first question, the first issue you raised, the agencies determining what is a major Federal action, et cetera. There has been some discussion with Mr. Pelly and Mr. Dingell about this. Could you cite one decision in which the court has held that an agency standard or criteria to determine what is a major Federal action should be overturned?

Mr. RITCHIE. Well, I cannot recall the name of the case, but it seems to me that there have been cases where actions taken by the agency before passage of NEPA was considered by the agency as not requiring a statement for the continuation of that particular project. And I may be wrong on this, but the court said that that was not right, that the continuation of the project did require a statement. I do not know of any new project, Mr. Potter.

Mr. POTTER. Perhaps you could supply this for the record if you find

any.

Mr. DINGELL. You see, we have here two things: Mr. Potter suggested submitting names of cases to the record would be helpful. Mr. RITCHIE. I shall try.

Mr. DINGELL. I am aware that the classic case is probably the TransAlaska Pipeline where the project was begun and the court said,“No, go on back and do your impact statement."

But I am curious-we have a difference here. We have cases where the project was begun before enactment of the law, and then we have those where projects were begun after. And I would very carefully like to direct your attention and the attention of the committee at this time to any case where the courts have overturned a decision by a Federal agency with regard to whether or not the action was either (a) a major action, or (b) where it had a significant impact on the environment.

I know of no instances where courts have overturned a determination of these points by an agency.

Mr. RITCHIE. I do not know of any specifically where the project commenced after-and it is a little different issue, really.

Mr. DINGELL. It is a dirty trick to ask you to give cases.

Mr. RITCHIE. There may not be any.

Mr. LENNON. Mr. Chairman, would the gentleman yield at this point?

Mr. DINGELL. Surely.

Mr. LENNON. The committee is in receipt of a letter from Assistant Secretary of the Interior, dated May 1. 1972, addressed to you, Mr. Chairman. I ask unanimous consent that that letter be inserted in the record at this time, and I ask your permission

Mr. DINGELL. Is that the report of the Interior?

Mr. LENNON. Yes.

Mr. DINGELL. That is already in the record.

Mr. LENNON. Let me call your attention to how the Legal Department of the Department of the Interior has construed the Kalur v. Resor case, and I quote:

The recent court decision in Kalur vs. Resor handed down December 21, 1971. by the U.S. District Court of the District of Columbia has impeded the administration of the Refuse Act Permit Program by requiring that such permits were subject to the impact statement requirements of Section 102 of NEPA. This holding was contrary to a Council on Environmental Quality guideline which construed NEPA as not requiring an impact statement for environmental protective regulatory actions incurred in or taken by the Environmental Protection Agency.

This comes back to the real gut issue-the various interpretations of various decisions by the legislative and administrative branch of the Government.

Mr. DINGELL. Would the gentleman yield?

Mr. LENNON. They are supporting this legislation because they think the court misconstrued, in their judgment, the Council of Environmental Quality's interpretation of the regulatory action set forth by EPA.

Mr. DINGELL. Would the gentleman yield?

Mr. LENNON. Yes.

Mr. DINGELL. I want to thank the gentleman for his very helpful guidance and comments. I do want to point out that this matter was gone ino by the Chair and counsel in great detail

Mr. LENNON. But

Mr. DINGELL. Wait just a minute-with Mr. Quarles and with CEQ's representative and general counsel. The Kalur case revolves around a different point, that is as to whether or not environmental protective actions, that is under the 1899 act and so forth, are exempt from the impact statement requirement, as opposed to the point we are addressing ourselves to here, as to whether or not as set out in his statement at page 2, under item 1, there has ever been a court action that has overturned an agency action in making a finding that the action involved was either a major Federal action or one which was significantly affecting the quality of the human environment.

Mr. LENNON. Here is a crystal clear variance between an interpretation of an agency of the Federal Government and the Court, which could certainly come at a later point in time on the other issues you raised.

Mr. DINGELL. For the benefit of my friend from North Carolina, I warned CEQ; I warned EPA that their interpretation was wrong and I am delighted to observe that the Kalur case points this out.

Mr. RITCHIE. If I may answer, at least partially, Mr. Chairman. I think the fact that the Agency-I mean the fact that there has been no such case, if there has not been, indicates that the agencies are applying this Act broadly, as you anticipate that it should be applied, and it further indicates that giving them the discretionary power which we seek which we recommend, I should say-is not really going to change the substantive accomplishments of the act.

Mr. DINGELL. Mr. Ritchie, I tend to take the general view that the law NEPA unamended affords the agencies, at least in the first instance, broad discretionary authority to make a determination as to whether or not there is either (1) a major Federal action, or (2) one "significantly affecting the quality of the human environment", so as to afford them a very broad measure of discretion.

Whether the Court would review the action of the agency, making a finding of that kind in the light of, let us say, abuse of discretion or arbitrary and capricious action, as you indicated, I am not sure, And I am not really satisfied whether or not the end result would be any different whether they did so or not if the court found that the law had not been complied with.

You ought to remember that the arbitrary and capricious test does not apply to findings of fact as opposed to rulings of law.

Mr. RITCHIE. I agree with you.

Mr. DINGELL. Arbitrary and capricious test and abuse of discretion deals with findings of fact, and you have got to remember if the administrative agencies of the Federal Government were to engage in making of rulings of law on (a) major Federal actions, (b) significantly affecting the quality of the environment, this would not be a finding of fact, rather it would be a ruling of law, with the result that the test of abuse of discretion or arbitrary and capricious action would not then apply.

Mr. RITCHIE. I am not sure that I totally disagree with you, but I think, Mr. Chairman, if, for example, the Corps of Engineers found as a fact that the issuance of a permit in a particular instance, as a fact, was not deleterious to the human environment, that it was not, as a fact, a major Federal action, I think the results in the Kalur case would have been different. I may be wrong on that.

Mr. DINGELL. I think you made a good point. I agree with you. Indeed, you make precisely the point I make. This, unfortunately, in the Kalur case-the question you are discussing was never before the Court.

Mr. RITCHIE. It was a question of law.

Mr. DINGELL. Yes. My problem here, as you know, is I do not proposed to have NEPA limited by any more amendments than are neeessary or any broader amendments than are necessary.

Unfortunately, you have laid your finger on questions that were not placed before us yesterday by Mr. Quarles or EPA folks because I suspect they took these matters to be of principle rather than matters of contest. You have had the wisdom I think perhaps to engage in a little more elementary thinking on this, and it will be very helpeful to the committee.

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