E. Restraining and Reviewing Administrative Proceedings. In several cases, courts have refused to interfere with pending proceedings before administrative agencies which allegedly were not in accordance with NEPA requirements. Such interference, the courts have indicated, would interfere with the orderly conduct of the administrative proceedings, completion of which would not result in irreparable injury to the plaintiffs.“ VII. WHEN IS A NEPA STATEMENT REQUIRED? Section 102 (2) of NEPA requires that "to the fullest extent possible" a detailed environmental statement shall be prepared on every recommendation and report on proposals for legislation and other "major Federal actions significantly affecting the quality of the human environment." To this date there have been no judicial decisions directly involving the applicability of the provision to proposals for legislation. There have, however, been numerous decisions on the kinds of federal actions requiring such a statement. Most of the judicial opinions have assumed or decided that the challenged Federal actions were "major Federal actions significantly affecting the quality of the human environment." In only one case has a court undertaken to define this phrase. In Natural Resources Defense Council v. Grant," a "major federal action" was defined to mean federal action that "requires substantial planning, time, resources, or expenditure." The phrase "significantly affecting the quality of the human environment" was defined: "... as being an important or meaningful effect, direct or indirect, upon a broad range of aspects of the human environment. The cumulative impact with other projects must be considered. Any action that substantially affects, beneficially or detrimentally, the depth or course of streams, plant life, wildlife habitats, fish and wildlife, and the soil and air. . . .” In only four of the reported decisions to date has a court indicated that the proposed action was not a major Federal action within the meaning of NEPA. In Pennsylvania, Environmental Council v. Bartlett, the court indicated that NEPA was applicable to Department of Transportation grants for the primary road system, but expressed some doubt that it was applicable to a grant for a secondary system road. In this case, however, the court's decision that NEPA was inapplicable was not based on this consideration, but rather on the conclusion that NEPA was not to be given retroactive effect. In the second case, involving a Navy and Marine Corps amphibious landing on the beaches of a state park, the court found that the environmental effects were short-term and insignificant and concluded that plaintiff had not carried the burden of showing that this was a major federal action with a significant impact on the environment." In the third case, the court upheld the determination of the Department of Housing and Urban Development in deciding that NEPA statement was not required in connection with an application for insurance assistance 49 Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F. 2d 524 (7th Cir. 1970), 2 E.R. 1405: Lever Bros. V. (D.C. Cir. 1970), 2 E.R. 1379, 1 EL.R. 20078; Thermal Ecology Must Be Preserved v. -- F. 2d Atomic Energy Commission, (1st Cir. 1971), 2 ER. 1651, 1 E.L.R. 20328 : Lloyd Federal Trade Commission, F. 2d (N.D. Ga.. - F. Supp. — (E.D.N.Y. 1971), 2 E.R. 1380, 1 EL.R. F. Supp. Harbor Study Group v. Seaborg, 20188. In Atlanta Gaslight Co. v. Southern Natural Gas Co., 1972), 3 E.R. 1697, a Federal District Court held that it lacked jurisdiction to consider a claim that NEPA had been violated by FPC procedures, since such a claim must be considered and ruled on by the FPC itself, subject to review by the Court of Appeals. Similarly, in Izaak Walton League v. Schlesinger, 337 F. Supp. 287, 2 EL.R. 20040, 2 E.L.R. 20039. a District Court held that it did not have jurisdiction to review AEC rules, where an allegation was made that the rules could not be adopted without a NEPA statement, on the ground that review of final AEC orders was a matter for a U.S. Court of Appeals. On the other hand, the court asserted jurisdiction on the question of issuance of a license without compliance with NEPA where it was uncertain that the AEC would permit the plaintiff to Intervene in the license proceeding, which intervention was a condition of the right to appeal the AEC's decision to the Court of Appeals. i Note 28. supra. F. 2d - (3rd Cir. 1971), 3 E.R. 1421, 1 E.L.R. 20622. The court concluded that the preliminary determination as to whether a NEPA statement was necessary was to be made by the agency and would be overturned only if it does not have "warrant in the record" or no reasonable basis in law. Citizens Committee for Reid State Park v. Laird, 336 F. Supp. 783 (S.D. Me. 1972), 3 E.R. 1580, 2 E.L.R. 20122. 52 53 for a 66-unit apartment project on the ground that the determination was not arbitrary, capricious, or an abuse of discretion. In the fourth case, it was held that the Interior Department's approval of a lease for development of property on an Indian reservation was not a major Federal action within the meaning of NEPA. This decision was based on the fact that after NEPA became law, Congress enacted a separate statute requiring consideration of environmental effects before approval is given to Indian leases. The court concluded that the later statute reflected Congress' belief that NEPA was not applicable to Indian leases. Without attempting to catalog all of the federal actions for which the courts have found NEPA statements to be required, it suffices to list some of the less obvious ones: a cooperative Department of Agriculture-State program to control fire ants; termination of a helium purchase contract; issuance of a permit for a mill site in connection with the sale of timber; an HUD loan for a high-rise apartment building; and EPA grant for a municipal sewerage system; an LEAA grant for a State prison reception and medical center in an historic area," and a downtown urban renewal project in the District of Columbia. .57 60 Four recent cases warrant special discussion. In Katur v. Resor," the District Court for the District of Columbia considered the applicability of NEPA to the issuance of permits by the Corps of Engineers for the discharge or refuse into navigable waters. The Corps' position was that agencies such as the Corps, dedicated to environmental protection, are exempt from NEPA procedures. Moreover, the Corps relied on CEO Guideline 5 (d) which provides that compliance with NEPA is not necessary for environmental protective regulatory activities concurred in or taken by the Environmental Protection Agency. In other words, the Corps' position was that in granting permits it would abide by the findings, determinations, and interpretations of the Environmental Protection Agency. The court held that the plain language of NEPA requires environmental impact statements before major Federal actions of any angency, without an exception for environmental protection agencies such as the Corps of Engineers. Moreover, consistent with Calvert Cliffs, the court held that water quality standards establish only a minimum condition, and that adverse effects of refuse discharges, even within the standard, must be considered in a case-by-case balancing. This discussion opens the door to suits alleging that EPA and other environmental protection agencies must prepare NEPA statements as a prerequisite to enforcement actions as well as promulgation of environmental quality standards. It also gives rise to the possibility that NEPA statements will be required with respect to a single project which will discharge refuse into navigable waters by both the "lead agency" and the Corps of Engineers. 62 In Cohen v. Price Commission, it was held that compliance with NEPA was not a prerequisite for authorization of increases in subway and bus fares, bridge and tunnel tolls, and parking charges, the net effect of which, the plaintiff contended, would be to increase motor vehicle traffic and incident air pollution. The court's conclusion was based on its view that Congress did not intend NEPA to apply to temporary agencies which, to function effectively, must act expeditiously without the delays built into compliance with NEPA. Moreover, the court said, - 52 Echo Park Residents Committee v. Romney, F. Supp. (C.D. Cal. 1971), 3 E.R. 1255. In Scherr v. Volpe, 336 F. Supp. SS6 (W.D. Wise. 1971), 3 E.R. 1589, 2 E.L.R. 20068, and Natural Resources Defense Council v. Grant, note 28, supra, however, it was held that the preliminary determination by the agency that a NEPA statement was not required was subject, when challenged, to review by the court without any presumption of validity. Davis v. Morton, 335 F. Supp. 1258 (N.M. 1971), 3 E.R. 1546, 2 E.L.R. 20003. 34 Environmental Defense Fund v. Hardin, note 22, supra. 55 National Helium Corp. v. Morton, notes 17 and 30, supra. 56 Sierra Club v. Hardin, 325 F. Supp. 99 (Alaska, 1971), 2 E.R. 1385, 1 E.L.R. 20161. 5 Echo Park Residents Committee v. Romney, note 51, supra. 5 Gibson v. Ruckelshaus, F. Supp. (E.D. Tex. 1971), 3 E.R. 1028, 1 E.L.R. 20335. Ely y. Velde, 451 F. 2d 1130 (4th Cir. 1971), 3 E.R. 1280, 1 E.L.R. 20612. Businessmen Affected Severely By The Yearly Action Plans, Inc. v. D.C. City Council, F. Supp. (D.C. 1972), 3 E.R. 1906, 2 E.L.R. 20237. 61 335 F. Supp. 1 (14C, 1971), 3 E.R. 1458, 1 E.L.R. 20637. 62 Note 18, supra. See infra, text at note 111. Note 28, supra. It was noted that the CEQ Guidelines recognize that there may be emergency situations requiring immediate and prompt action. even though there had not been compliance with NEPA, the Price Commission did not take environmental factors into account. 65 In Port of New York Authority v. United States (ICC), the plaintiff sought to enjoin an ICC order permitting Penn Central Railroad's increase of lighterage charges by 50 percent. The ICC had initially issued an order suspending the increased charges for a period of seven months pending investigation. Thereafter, a motion to vacate the suspension order was denied, but the ICC permitted Penn Central to increase the charges by 50 percent of the amount requested. The plaintiff contended that the increase would increase truck traffic and could not be permitted by the ICC without a NEPA statement. The court denied the injunetion, stating that to enjoin the increase would defeat the purpose of NEPA, since a detailed balancing of costs and benefits was not possible at the time. Moreover, the court stated that preserving the status quo could be as detrimental to the environment as changing the status quo, since denying the increase on this aspect of Penn Central's service might lead Penn Central to make up its losses through increased charges or less services in other respects, and this might also have adverse environmental effects. 06 A fourth case involves the issuance of an interim license by the AEC for lowpower operation of a nuclear power plant pending full completion of the NEPA review in a case in which NEPA became applicable in mid-stream as a result of the Calvert Cliffs decision. In Izzak Walton League v. Schlesinger issuance of such an interim license was enjoined until there had been full compliance with NEPA despite a showing of only minimal adverse environmental effects and despite an urgent need for the electrical power from the plant. The court found that since the environment might be significantly affected by issuance of the interim license a NEPA statement was required, and was not impressed with the contention that the nuclear power plant was needed to abate pollution from coal-burning generating plants since it was "unacceptable" to "substitute the possibility of one form of threat to the environment for another form." One factor which influenced the court was that the NEPA statement was "relatively complete" so that there would not be "substantial delay." A second major question concerning the applicability of NEPA is whether it has a retroactive effect. This question has arisen more frequently than any other in NEPA court decisions. The issue has been presented in cases in which the implementation of a project involves successive steps over a period of many years where some decisive Federal action had been taken prior to enactment of NEPA. Although the general view has been that NEPA does not have a retroactive effect," this principle has not been dispositive of the issue where further Federal decisions and actions with an environmental impact remain to be taken. In this connection, it should be noted that the CEQ guideline requires that the Section 102 (2) (c) procedures be employed to the maximum extent possible to further Federal actions having a significant effect on the environment arising from programs or projects initiated prior to enactment of NEPA, in order to shape such further actions so as to minimize adverse environmental consequences." The NEPA guidelines, the fact that NEPA has no "grandfather clause," and the "to the fullest extent possible" clause, have provided a basis for judicial interpretations making NEPA applicable to previously authorized projects involving further environmental actions. 68 70 09 In some cases, the courts have applied a mechanical test. In Sierra Club v. Hardin, for example, the applicability of NEPA was said to turn upon whether the Federal government was "committed" before NEPA became law. Thus NEPA has been held inapplicable in cases where money had been appropri 65 451 F.2d 783 (2nd Cir. 1971), 3 E.R. 1691. Go Note 48, supra. Eliott v. Volpe, 328 F. Supp. 831 (Mass., 1971), 2 F.R. 1490, 1 E.L.R. 20243. In this case, the court noted that, despite the presumption that Congress was aware of unfinished federally-aided highway projects, there was no language in NEPA indicating a retrospective application of the statute. Moreover, the phrase in Section 102. "to the fullest extent possible." was interpreted to indicate a "moderate, flexible and pragmatic approach to the immediate application of the Act." See also Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238 (M.D. Pa. 1970), 1 E.R. 1271. In addition, it has been noted that NEPA (42 U.S.C. §4332) provided a "period of grace." Pennsylvania Environmental Council v. Bartlett, note 50, supra. 6 36 F.R. 7724 (1971). Nolop v. Volpe, 333 F. Supp. 1364 (S.D.S.D. 1971), 3 E.R. 1338, 1 E.LR. 20167; Environmental Defense Fund v. Tennessee Valley Authority, note 34, supra. To Note 56, supra. ated and construction begun before January 1, 1970;" where a state had begun construction of a highway approved by the Department of Transportation although Federal funds had not yet been disbursed;" where planning and construction of a highway were well under way; where all that remained to be done was to complete work previously authorized; where there had been undisputed reliance on the Department of Transportation's approval of a project in 1969; and where the Department of Transportation had made an administration determination on the location of a highway in 1967.7 75 On the other hand, there are decisions which seem to be directly opposed to those cited in the previous paragraph. In Texas Committee on Natural Resources v. United States," the NEPA procedures were held to be applicable in a case in which the FHA had approved loan applications for a park project, but funds had not been disbursed and construction had not begun on January 1, 1970. In San Antonio Conservation Society v. Texas, NEPA was held applicable to a project for two end segments of a major highway project approved by the Bureau of Public Roads before NEPA became effective. In several cases, NEPA was held applicable to projects which had been underway for some time." In Environmental Defense Fund v. TVA,80 NEPA was held applicable to the Tellico Project for which the first funds had been appropriated in 1966 and $29 million of the estimated total of $69 million had been expended before NEPA was enacted. The court concluded in that case that a NEPA statement was required for each annual appropriation and distinguished the cases denying retroactive application to NEPA as not including any alalysis of the theory underlying NEPA beyond noting the absence of any language suggesting retrospective application. Although judicial decisions to date seem to be equally divided on the question of retrospective application of NEPA to projects which were ongoing on January 1, 1970, the cases holding NEPA applicable in such situations seem to be more carefully reasoned and to have stronger effect. They are, moreover, consistent with CEQ Guideline 11. The leading case is Environmental Defense Fund v. Corps of Engineers which involved a project, authorized in 1958 and two-thirds completed, for the damming of a river. The court concluded that the degree of completion of the project and the amount of money already spent should not inhibit the objective and thorough evaluation of the environmental impact as required by NEPA. Relying on the language of Section 101(b) placing a "continuing responsibility" on the Federal government to improve Federal plans and programs in the interest of environmental values, the court interpreted NEPA as requiring continuing efforts to improve or up-grade existing plans and consideration of the alternatives of going forward with, abandoning, or restudying the project. The reasoning of this case was strongly supported and reinforced in Calvert Cliffs which involved licensing of a nuclear power plant by the Atomic Energy Commission. 882 83 Licensing of a nuclear power plant involves a two-step process: first the issuance of a construction permit and then, when construction is completed, the issuance of an operating license. The court held that NEPA requires consideration of environmental factors in all actions taken after January 1, 1970, thereby overruling the AEC's policy of considering such factors only in proceed Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038 (Ore., 1970), 1 E.R. 1713, 1 E.L.R. 20044. 19 Pennsylvania Environmental Council v. Bartlett, note 67, supra, affd. note 49, supra. 13 Elliott v. Volpe, note 67, supra. Arlington Coalition on Transportation v. Volpe, 332 F. Supp. 1218 (E.D. Va., 1971), 3 E.R. 1138, 1 E.L.R. 20486, Citizens to Preserve Overton Park v. Volpe, F. Supp. (W.D. Tenn. 1972), 3 E.R. 1510. 1 E.L.R. 20447. Brooks V. Volpe, 319 F. Supp. 90 (W.D. Wash. 1970), 2 E.R. 1004, 1 E.L.R. 20286, rer'd, -- F. 2d (9th Cir. 1972). 3 E.R. 1858. 77 F. Supp. --- (W.D. Tex. 1970), 1 E.R. 1303. 78 446 F. 2d 1013 (5th Cir. 1971), 2 E.R. 1871, 1 E.L.R. 20069. United States v. 247.37 Acres, note 22, supra (flood control project authorized in 1938); Environmental Defense Fund v. Corps of Engineers, note 19, supra (dam project authorized in 1958, two-thirds completed); Morningside-Lenor Park Assn. v. Volpe, note 43, supra (all planning completed and construction contracts let when NEPA enacted). So Note 34, supra. See also Natural Resources Defense Council v. Grant, note 28. supra, where NEPA was held applicable to a project approved by Congress in 1966, but where a construction contract had not yet been let. 81 Note 68, supra. 82 Note 19, supra. 83 Note 18, supra. ings "officially noticed" after March 4, 1971. In addition, it held that NEPA procedures must be applied "to consider prompt alterations in the plans or operations of facilities approved without compliance," and, specifically, that NEPA procedures are applicable even to facilities for which a construction permit had been issued prior to NEPA but for which an operating license proceedings had not yet begun. Thus, there must, the court said, be compliance with NEPA procedures even before commencement of the operating license proceedings in order to avoid completion of construction, with an “irreversible and irretrievable commitment of resources" which would restrict the AEC's options to order alterations to reduce environmental harm. The court pointed out that other courts which had held NEPA to be not retroactive did not face situations such as the AEC licensing process in there were two distinct stages of Federal approval. Although this distinction was relied upon in a subsequent decision holding NEPA not to be retroactive," it would appear that the rationale of Calvert Cliffs would support a conclusion that NEPA procedures must be applied in cases, whether or not there is a "two-step" procedure, in which a project was begun prior to the effective date of NEPA but was not sufficiently completed so as to foreclose the adoption of alternative to enhance environmental considerations. 88 Another issue which has been raised in connection with the applicability of NEPA concerns the thrust of the "to the fullest extent possible" clause of Section 102. Some judicial decisions have interpreted this clause as connoting a "moderate, flexible and pragmatic approach to the immediate application of the Act," as diminishing the directive force of NEPA,“ and as making compliance with NEPA to some extent "discretionary." Calvert Cliffs, on the other hand, states that this clause is not an "escape hatch" and does not make NEPA's procedural requirements "discretionary;" rather, it sets a "high standard for the agencies" and exempts agencies from full compliance "only when there is a conflict of statutory obligation" regardless of administrative difficulty, delay, or economic cost. Finally, courts which have considered the question have concluded that the fact that Congress has specifically authorized and appropriated funds for a particular project does not in any way excuse an agency from full compliance with NEPA. In Environmental Defense Fund v. Corps of Engineers, the court rejected the government's contention that the making of yearly appropriations for the project evidenced congressional intent that the project should be completed without regard to NEPA. It is more reasonable to assume, the court said, that Congress assumed that the responsible agency would comply with all applicable laws. In Committee for Nuclear Responsibility v. Seaborg," the court rejected the government's contention that Congress in authorizing and appropriating funds for the CANNIKIN test conclusively determined that the AEC's environmental impact statement was sufficient. Pointing out that repeal of a statute by implication is disfavored, it concluded that the effect of the authorization and appropriations legislation was that Congress assumed the validity of the AEC's implementation of NEPA, leaving any claim of invalidity to be determined by the courts. VIII. THE NATURE OF THE NEPA STATEMENT A. Who Must Prepare the NEPA Statement? Although NEPA is not clear on this point, it would appear that the NEPA statement is to be prepared by the agency responsible for making the decision on the particular matter. CEQ Guideline 5(b) recognizes that in some situations more than one agency may be involved and states that the NEPA statement should be prepared by the "lead agency," i.e.. the agency with primary authority for committing the government to the proposed action. In Upper Pecos Association v. Stans," where a road project sponsored by the Forest Service was to be funded by the Economic Development Agency, it was held that the former was the lead agency and that it would be unduly burdensome to require the 1216. Pennsylvania Environmental Council v. Bartlett, note 50, supra, Ely v. Velde, note 36, supra, rev'd, note 59, supra. 8 Note 18, supra. Note 19, supra. Note 21, supra. F. Supp. (N.D. Ill. 1971), 3 E.R. 25 F. Supp. 332 (NM. 1971). 2 E.R. 1614, 1 E.L.R. 20228, aff'd. |