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I hope that these observations will be useful to the Committees on Interior and Insular Affairs and Public Works in their joint review of the operation of NEPA. As the observations made clear, the Council believes NEPA is having a significant and favorable effect on Federal decisionmaking. Sincerely,
RUSSELL E. TRAIN, Chairman. cc: Honorable Jennings Randolph
Honorable Henry M. Jackson
FEDERAL POWER COMMISSION,
Washington, D.C., April 12, 1972. Hon. HOWARD H. BAKER, Jr. Committee on Public Works, U.S. Senate, Washington, D.C.
DEAR SENATOR BAKER: This will acknowledge receipt of your letter dated March 21, 1972, the questions contained therein, and the transcript attached. Because the Federal Power Commission is currently involved in litigation involving the National Environmental Policy Act (NEPA), Chairman Nassikas has asked me to answer your letter so as to avoid any conflict. The answers to the questions posed in your letter re as follows:
(1) Yes, Natural Resources Defense Council v. Morton ( CADC
January 13, 1972). 3 ERC 1558.
(4) None. However, even though the Commission cannot require another agency to take action, it may recommend action. See Section 7(a) of the
Federal Power Act, 16 U.S.C. 800. If I may be of further service to you in this matter, please feel free to call upon me. Sincerely,
U.S. ATOMIC ENERGY COMMISSION,
Washington, D. C., April 24, 1972. Hon. HOWARD H. BAKER, Jr., 0.8. Senate.
DEAR SENATOR BAKER: I am pleased to respond to your letter of March 21, 1972, concerning the requirement of the National Environmental Policy Act of 1969 (NEPA) for agency consideration of alternatives to proposed major Federal actions and how that requirement relates to the statutory mission of this agency. The Commission's answers to your specific questions are as follows:
(1) Neither NEPA's terms nor its legislative history provide, in our view, any clear guidance as to whether a federal agency is required to consider alternatives to a proposed major action which lie beyond its jurisdiction to adopt or implement. The decision of the Court of Appeals for the District of Columbia Circuit in Natural Resources Defense Council v. Morton, 3 ERC 1558 (1972) and its holdings required consideration of alternatives beyond that agency's jurisdiction. The AEC has included the study of alternatives other than those within its own jurisdiction and while, in broad context, practical problems may arise, this course has not involved severe policy constraints.
(2) It is the Commission's judgment that one of the “alternatives” referred to in Section 102(2) (C) (iii) of NEPA may appropriately be the alternative of not proceeding at all with the proposed major action.
(3) The Commission does not interpret NEPA as expanding the statutory authority of a given agency so as to permit the agency to implement or direct implementation of an alternative otherwise beyond its jurisdiction. Of course, consideration of such an alternative in the impact statement may be in order, as was held to be the case in Natural Resources Defense Council v. Morton (supra).
(4) If an alternative under the jurisdiction of another agency is found to be preferable to a proposed action covered by a Federal agency in its impact statement, the alternative might, if the proposed action is a licensing action, be suggested to the applicant. In that case, the jurisdiction of the sister agency could be invoked by the applicant. If the proposed action were an action other than a licensing action, such as an action involving promulgation of a regulation, the Commission might suggest to the other agency that it exercise its jurisdiction in that area. In the implementation of AEC programs other than its regulatory program, existing mechanisms for coordination by the Office of Management and Budget are available to initiate implementation of the preferable alternative by the other agency. Sincerely,
MARTIN R. HOFFMANN,
General Counsel. Senator BUCKLEY. Well, I would just follow up with the observation, that if your analysis is correct, and if the intention of the Congress was to implement the kind of brakes and safety valves, which I had assumed was built into NEPA, and then perhaps an amendment is required which would state that anytime an agency concluded that the indicated dangers exceeded the social-economic benefits, then it would be authorized to say no.
I have no further questions, Mr. Chairman.
Mr. CRAMTON. If you pose the question that way, any agency head with a prudent eye toward public relations is going to say, of course, we have to consider all of the factors, and decide what is in the ultimate public interest, and if it is not in the public interest, that particular facility will not be licensed. But the question we are getting to is the realities of behavior, and the question of whether NEPA essentially authorizes agencies to reexamine the basic premises of their own statutes. I guess it is my view that whatever they say, they are going to continue to take the position of their own" basic statute very seriously and far more seriously than they take NEPA, and I view that as inevitable, regardless of how they respond to an inquiry such as the one Senator Baker proposes.
Senator BAKER. I might say, if you will yield further, that I think it might be appropriate in fairness to Mr. Cramton, that we are putting the question that we discussed, that the summary that staff has been requested to prepare might be submitted to Mr. Cramton. which we will do, and by way of addendum, the question I really am interested in is not quite on point with the description you have made.
What I am really concerned about is the integrity of that section of NEPA which requires the consideration of alternatives to proposed Federal actions, including the alternative of doing nothing. I am also concerned with the question of what happens when one agency, in considering alternatives to a proposed action, determines that the most desirable alternative is beyond its jurisdictional authority to implement. For example, if the AEC concludes that a fossil plant or a hydro project is preferable, on environmental grounds, to a particular nuclear plant, what mechanism is there to provide for the actualization of such a project, which apparently lies beyond the jurisdiction of the AEC. These are the questions that I hope the previous witnesses will address themselves to.
Mr. CRAMTON. I worry a little bit about the elaboration of trial-type hearings in a situation like this, because virtually everything then becomes relevant to the agency's decision. The AEC not only is concerned with radiological safety and environmental factors that relate to specific design, but it will have to consider the oil import quota, fossil fuel arrangements, possible developments of oil shale, the Alaskan pipeline, et cetera. Supposedly it will have to allow witnesses to testify on all of those issues, allow cross-examination on them, and the like.
The danger is that this poses a question of the misuse of contested procedures, where the only way you can really settle the case and get on with it and do something is by building into the design highly expensive components which satisfy the environmentalists, and lead them to abandon their attack on the facility. It may mean that lots of times the facilities then get built in the neighborhood of some people or individuals who do not have the muscle or resources to raise hell about a particular matter. The environmentalists who in this case do not have to gaze at the transmission lines or have their property or land taken, but somebody else over the next hill, perhaps a poor farmer who does not have the information or resources to raise questions about it, loses his land. I worry about the elaboration of proceedings, where the only way you can terminate the proceeding is by buying off the plaintiffs.
Senator BAKER. Thank you, Mr. Cramton. I think your testimony has been very good, very good and very provocative.
I think it will be useful to this committee, and to those who might study this record, on understanding NEPA and its legitimate functions.
I think it fair to say that one's perception of NEPA, the perception of the scope and authority of NEPA, will have some bearing on the satisfaction or alarm with which one views the function of NEPA.
The perception is not uniform, and there are differences of opinion on the application of several provisions. This is true.
With respect to the one we discussed in the most detail, the integrity of, or the effectiveness of, the alternative proposals section, I think you brought us a great deal of very, very good testimony from your point of view, and we are very, very grateful. Thank you.
(Mr. Cramton's prepared statement follows:) STATEMENT OF ROGER CRAMTON, CHAIRMAN, ADMINISTRATIVE CONFERENCE OF THE
Mr. Chairman and Members of the Committees : I am grateful for the opportunity to testify at this joint hearing of the Committees on Interior and Insular Affairs and on Public Works. The subject of this hearing—the improvement of the decision-making processes of Federal agencies and especially of the consideration given environmental values—is of vital importance. It is one of the major issues to which the Administrative Conference is devoting its efforts at this time.
As you know, the Administrative Conference of the United States—a permanent, independent Federal agency which began functioning in early 1968—is engaged in the improvement of the procedures of all Federal departments and agencies. The objective of the Conference is to assist agencies in the more effective performance of their functions while providing greater fairness and expedition to participants and lower costs to taxpayers. The Conference has a special expertise on questions of administrative law and procedure. A brief description of the Administrative Conference and some of its current activities is contained in an Appendix to this statement.
While this statement reflects only my personal views, the Administrative Conference is engaged in a number of studies and projects that are concerned with the handling of environmental issues by Federal agencies engaged in licensing and regulatory functions. The Conference's Committee on Licenses and
Authorizations, for example, is in the midst of an elaborate consideration of the procedures employed by the Atomic Energy Commission in the licensing and regulation of nuclear power plants. It is expected that this study will be completed by December 1972.
My testimony is concerned with the effect of the National Environmental Policy Act on administrative decision-making. What benefits has NEPA conferred on us? What dangers have emerged? What questions remain to be clarified if we are to garner NEPA's benefits while minimizing any negative side effects?
The process of change in complex social organizations is itself a highly complex phenomenon, and governmental agencies are not exempt from this general rule. President and administrators may come and go, but the civil service with its inherited policies, attitudes and biases-is with us always. Moreover, the process by which governmental decision-makers gather information, consider alternatives and balance conflicting values may have characteristics that are highly persistent over time. Any attempt to improve this decision-making process must take into account some important practical limitations while seeking to overcome unnecessary bureaucratic rigidities.
The National Environmental Policy Act of 1969 provides us with a relatively successful case study of the possibilities, methods and limitations on the change process as applied to agencies of the Federal Government. The Act was intended to make Federal agencies more responsive to environmental considerations and values, which had been too frequently neglected in governmental decision-making. In the short space of two years the Act has produced, in addition to a number of judicial victories that have been celebrated by environmentalists, a dramatic change in the perspectives of a number of Federal agencies. Even more change—the steady, sure change that is the result of building into the decisionmaking process new inputs, values and arguments—is around the corner.
Skepticism concerning the ability of government to respond to changed social attitudes and policies is widespread today. This is an age in which any success story on the part of government needs to be retold, emphasized and given currency. Thus it is important to chronicle the success of NEPA as an example of the possibility of orderly social change. There may be lessons in this experience that reformers can put to use in other contexts.
But success is not without its dangers. Only the naive or zealous will perceive necessary and desirable change as costless or without negative side effects. NEPA is no exception. Although the experience thus far has been a healthy and successful one, there is danger that the spirit will be undermined—in some agencies—by an observance of form that fails to grapple with the underlying realities. Similarly, judicial zeal that interprets NEPA as imposing a detailed procedural code or that requires the impossible of Federal decision-makers will frustrate effective regulation by the Federal Government at a time when vigorous regulation is badly needed.
NEPA has many resemblances to a constitutional charter. It states a general policy in lofty terms, outlines a fragmentary procedure for implementing that policy, and leaves questions of detail to the good sense of those who must live with and interpret its requirements. The draftsmen did not attempt to anticipate the adaptation that would be required in applying the Act to the enormously varied activities carried on by the Federal Government. Not a line, not even a
1 NEPA, 42 U.S.C. $$ 4321-4347 (1970).
2 Some of the outstanding landmarks have been : Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), rev'g 432 F. 2d 1307 (6th Cir. 1970) (agency determination to build highway through a park remanded for intensive review by the district court); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F. 2d 584 (D.C. Cir. 1971) (ageney required to initiate proceeding involving cancellation of DDT registration; environmental considerations entitled to high priority in reviewing courts) ; Natural Resources Defense Council, Inc., v. Morton, 40 U.S.L.W. 2497 (D.C. Cir., January 13, 1972) (environmental impact statement must consider all "reasonably available" alternatives, including those beyond the agency's own authority),; Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F. 2d 1109 (D.C. Cir. 1971) (AEC rules governing consideration of environmental issues and relying on water quality standards set by other agencies held invalid under NEPA).
3 Insiders conversant with the Washington scene agree that the AEC and the Army Corps of Engineers have undergone a dramatic transformation since NEPA. Significant changes in the manner and substance of decision-making in the Departments of Defense, Interior, and Transportation have also noted. See the remarks by Timothy Atkeson, General Counsel of the Council on Environmental Quality, reprinted at 118 Cong. Rec. E1626, 1967 (Feb. 24, 1972).
word, is addressed to the transitional problem of applying the Act's requirements to governmental actions virtually completed or long in motion-situations in which it is obvious that commitments have been made which can be reopened to only a limited degree.*
The National Environmental Policy Act declares that “it is the continuing policy of the Federal Government * * * to use all practicable means and meas
* * in a manner calculated to foster and promote the general welfare, 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." 5 The Act goes on to amplify somewhat this none-too-precise statement, and, in particular, to set out certain procedures which the agencies are to employ to achieve the goals of the statute. The most significant and controversial of these procedural requirements is, of course, the requirement of section 102(2)(C) that each agency prepare in connection with each major action "significantly affecting the quality of the human environment" a so-called environmental impact statement which must be available to other interested Federal, State, and local agencies and to the public and must "accompany the proposal through the existing agency review processes.' From this requirement that the statement accompany the proposal through the review process, the Council on Environmental Quality, which is given certain general responsibilities in the administration of the Act, has inferred the concept of the draft impact statement, which must be circulated and made public for comment prior to the final agency decision.
Two years have now passed and the sky, despite an abundance of doomsayers, has not fallen. Approximately 2,500 environmental impact statements have been filled with the Council on Environmental Quality, and the monthly volume is increasing rapidly. In the two short years since its enactment, NEPA has generated 47 district court decisions, 15 circuit court decisions, and 3 Supreme Court dissents, all involving judicial review of administrative actions.
The experience under NEPA is now sufficient to permit a retrospective look as well as a modest peek at the uncertain world that lies ahead. My assessment is that the beneficial aspects of NEPA easily outweigh the modest negative effects, although the latter may grow if reviewing courts treat the NEPA requirement as either a highly detailed, inflexible mandate or as an all-purpose tool for reversing agency actions with which they have a policy disagreement.
II. BENEFICIAL EFFECTS OF NEPA
The beneficial aspects of NEPA are large in magnitude and relatively clear in nature.
First, NEPA is an important step in a national reordering of priorities. For the first time, Congress has declared that Federal agencies must consider environmental values along with other relevant values in making decisions. The isolation and parochialism that characterize some governmental agencies—the tendency to be totally absorbed in the agency's special mission or with its special constituencies—are partially displaced. The agency must take a larger view of its functions, placing them in the larger perspectives of “the continuing respon
4 NEPA has been broadly applied to Federal actions initiated prior to its effective date of January 1, 1970. See, e. g., Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F. 2d 1109, 1119-22 (Þ.C. Cir. 1971); Note, Retroactive Application of the National Environmental Policy Act of 1969, 69 Mich. L. Rev. 732 (1971). The note of caution implicit in Section 11 of the Guidelines issued by the Council on Environmental Quality, 36 Fed. Reg. 7724, 7727 (1971), which requires agencies to shape further action in projects commenced prior to 1970 so as to minimize adverse environmental consequences, has not always been fully reflected in the decisions.
Although NEPA immediately imposed an increased burden on Federal agencies, no additional funds were provided. Existing personnel have been required to shoulder the extra burdens or new personnel acquired by diverting other funds for that purpose. Because of the lag in the budgeting and appropriations process, the fiscal year beginning in July 1, 1972 offers the first opportunity for most agencies to obtain new resources for handling the burdens necessitated by NEPA.
5 NEPA, $ 101(a), 42 U.S.C. $ 4331 (a) (1970).
7 NEPA directs agencies to consult with CEQ concerning methods of insuring that environmental values will be considered ($ 102 (2) (B)) and to assist CEQ ($ 102(2) (H)) ; and CEQ is directed to review and appraise federal programs in the light of NEPA's policy and to make recommendations to the President. Moreover, Executive Order 11514, 35 Fed. Reg. 4247 (March 5, 1970) assigns CEQ important functions in coordinating activities under NEPA and issuing guidelines for compliance with it.
8 The information in this paragraph has been supplied by the staff of the Council on Environmental Quality.