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sibility of the Federal Government to use all practicable means, consistent with other essential conditions of national policy," to avoid degradation of the environment, to preserve "historic, cultural, and natural" resources, and to obtain "the widest range of beneficial uses of the environment without *** undesirable and unintended consequences." "

Second, NEPA requires an "airing" of the issues involved in Government decision-making. It opens formerly closed administrative procedures to public view and to public comment. This is especially true, of course, of those decisions relating to use and management of public property, where there are not, by and large, any statutory requirements for public hearings or other structured procedures for obtaining outside views and expertise. The opening or closing of defense installations, storage and transportation of germ gas," and underground explosion of nuclear devices are merely examples of the many administrative actions which are now exposed to public scrutiny prior to the occurrence of the event because of the NEPA requirement.

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Third, NEPA forces agencies to articulate the bases of their decisions. They must not only invite and listen to outside comments, but they must in practice respond to such comments. If it is asserted that a certain environmental damage is threatened by a given project, the environmental impact statement cannot safely ignore the question. It must either explain why the agency discounts the threat or why the benefits of the proposed project are believed to outweigh the dangers. The requirement that agencies consider and evidence their consideration of outside comment is likely to result in more thoughtful and informed decision-making.

Fourth, NEPA is requiring agencies to develop an inhouse expertise in varied disciplines. While in theory an agency can draft an impact statement on the basis of a fairly narrow program-oriented perspective, and leave it to other agencies to supply the required "interdisciplinary approach" in their comments, in practice it seems unlikely that an agency would permit a proposal to get as far as the circulation of a draft statement without having pinpointed and considered the principal environmental objections which might be raised. To do this, many agencies are being forced to acquire new personnel with specialized training in environmental sciences; when these staff members are brought into the planning of projects at an early stage, the planning function acquires a broader perspective. The agency will in time develop an institutional viewpoint more sympathetic to environmental, as opposed to purely programmatic, values.

Admittedly, this is largely a prediction rather than an accomplished fact at the present time. The agencies must guard against a natural but unfortunate tendency to let the writing of impact statements become a form of bureaucratic gamesmanship, in which the newly acquired expertise is devoted not so much to the shaping of the project to meet the needs of the environment as to the shaping of the impact statement to meet the needs of the agency's preconceived program and the threat of judicial review.

A great virtue of the NEPA requirement is that it builds into the bureaucracy an instrument for orderly social change. Bureaucratic organizations that have had an effective program almost invariably develop a set of attitudes and belief patterns that enormously influence what they do." The personnel of the agency have undergone common experiences; they often share a common professional training; and they have devoted their lifetimes to efforts that were premised on certain valued assumptions. Thus, a civil engineer who has devoted the better part of a lifetime to laying down as quickly and cheaply as possible new highways to meet the transportation demands of a generation of Americans is threatened when his basic premises are attacked. Were his efforts wasteful or wrong? The ability of any group of professionals to react affirmatively to criticism of this sort is limited. Anger, defensiveness and stubborn resistance are more likely reactions.

NEPA, § 101 (b), 42 U.S.C. § 4331 (b) (1970).

10 E.g., State Committee to Stop Sanguine v. Laird, 3 E.R.C. 1342, 317 F. Supp. 664 (W.D. Wisc. 1970); cf. Citizens for Reid State Park v. Laird, F. Supp. Civ. No. 13-18 (D. Me. Jan. 21, 1972).

11 See, e.g., McQueary v. Laird, 3 E.R.C. 1184, 1187 (10th Cir. 1971). 12 The AEC's Amchitka Island weapons test inspired a number of appellate opinions involving environmental effects and public access to records bearing on the environmental problems. See Committee for Nuclear Responsibility v. Seaborg, 3 E.R.C. 1126 (D.C. Cir. 1971), 3 E.R.C. 1210 (D.C. Cir. 1971), 3 E.R.C. 1256 (D.C. Cir. 1971), motion for injunction denied 3 F.R.C. 1276 (U.S. Sup. Ct. 1971); Mink v. EPA, 3 E.R.C. 1166 (D.C. Cir. 1971), petition for cert. filed, 40 U.S.L.W. 3352 (Jan. 25, 1972).

13 See, e.g., E. Redford, The Regulatory Process, 22-38 (1969).

Under NEPA, however, an agency that attempts to grapple meaningfully with environmental issues is forced to recruit a new phalanx of professionals with different values and perspectives than its old-line operatives. As the new personnel react with the old, new sets of shared attitudes and goals may replace those that have hardened into the bureaucratic structure. Thus NEPA is a window to the outside world, which brings outside comments into the agency, and, by infusing new personnel, makes a living force in an agency.

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Finally, NEPA is not a toothless tiger that can be ignored at the convenience of Federal agencies. The citizen suit provides an extraordinarily flexible and effective enforcement technique, at least against administrative agencies. The courts have been vigilant-perhaps even too vigilant-in implementing the NEPA requirements. In the process, the courts have broadened the citizen's right to bring suit and the scope of court review of administrative actions.15 The willingness of the courts to vindicate environmental values and requirements means that Government must take seriously the NEPA obligation to consider environmental values and the views of outsiders. Industry counsel, knowing that citizen groups will be given a sympathetic hearing by reviewing courts, are encouraged to assist agencies in giving proper consideration to environmental values. Otherwise, industry will suffer from costly delays resulting from judicial reversal of an overly acquiescent agency. Awareness of the ready availability of judicial enforcement of NEPA is likely to lead to that self-enforcement by agencies and industry representatives that gives American law its effective character.

III. THE DANGERS OF EXCESSIVE ZEAL IN THE ENFORCEMENT OF NEPA

Initial reflection on this statutory framework leads one to ask, "Why is there so much fuss about NEPA?" The policies set forth in NEPA seem worthy enough, if not platitudinous. Cautious inclusion of terms such as "practicable", "appropriate," and "to the fullest extent possible" suggest agency discretion in administration of the provisions. And the requirements for the drafting and circulation of impact statements, for solicitation of comments and the coordination of expertise, seem at first blush to be no more than the implementation of a directive to the agencies, "Before you make a major decision, think; think about what it is you are doing!"

Yet Federal agencies appear to be encountering severe difficulties in complying with NEPA as construed by reviewing courts. I do not believe that the current travails of agency decision-makers can be ascribed wholly to their lethargy or perverseness; some part of the problem may be traced to a discrepancy between the nature of the decision-making process as envisioned by NEPA (or NEPA plus its judicial gloss) and the decision-making process as it actually takes place within a Government agency.

A. Uncertainties in the Meaning and Application of NEPA

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1. Scope of NEPA.-Section 102(2) (C) of NEPA requires "all agencies of the Federal Government" to "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 environmental impact statement.16 NEPA, as Judge Friendly has said, is "a relatively new statute so broad, yet opaque, that it will taken even longer than usual fully to comprehend its import." Already, however, it is apparent that "major" means "any" and that "significant effect" means "some effect." Given the subjective quality of the qualifying language and the breadth with which the courts have applied it, the issuance of environmental impact statements promises to become a routine occurrence in many agencies and areas of activity.

14 See the discussion of the citizen suit in chapter 5 of the 1971 Annual Report of the Council on Environmental Quality, at 155-70.

15 In Ass'n of Data Processing Service Orgs. v. Camp, 397 U.S. 150 (1970), the Court held that a person "injured in fact" by an agency action is an "aggrieved" person entitled to bring suit if the interest he asserts is intended to be protected by the specific statute involved. Several courts of appeals have held that invironmental interests meet this test. Citizens Committee for the Hudson Valley v. Volpe, 425 F. 2d 97 (2d Cir. 1970); West Virginia Highlands Conservancy v. Island Creek Coal F. 2d 232 (4th Cir. 1971); Environmental Defense Fund, Inc. v. Hardin, 428 F. 2d 1093 (D.C. Cir. 1970). Contra, Sierra Club v. Hickel, 433 F. 2d 24 (9th Cir. 1970), cert. granted, 91 S. Ct. 870 (1971). 18 NEPA, § 102 (2) (C) 42 U.S.C. § 4332 (2) (C) (1970).

17 New York City v. United States, 40 U.S.L.W. 2474 (E.D.N.Y. January 20, 1972) (three-judge court).

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Thus, it is difficult to imagine an action in the energy field so inconsequential as not to require a statement." And since abandonment or certification of transportation facilities is likely to affect the volume of total traffic or the share held by motor vehicles, a wide range of actions by transportation agencies are subject to the environmental statement requirement." Only a few functions, notably the issuance of price orders under the Emergency Stabilization Act," have been held exempt from the NEPA requirement. And the searching nature of the inquiry in the few cases in which an action of extremely limited environmental significance, such as the short-term use by 900 Marines as part of a landing exercise of a state park used by as many as 6,000 persons per day in the summer months, ensures that environmental issues will be adequately protected in even this situation."1

2. Substantive effect.-One area of considerable uncertainty is how NEPA operates to effect the decisional equation in each agency. There is no question that NEPA requires decisionmaking procedures which will permit agencies to take environmental values into account. But what weight is to be given to such values where they conflict with the values expressed or implicit in the statute the agency is administering? Section 105 of NEPA simply states that the policies and goals of NEPA are "supplementary" to those set forth in the agencies' existing authorizations, a statement which provides little practical guidance.

A case in point is Zabel v. Tabb,22 in which the Court of Appeals for the Fifth Circuit upheld a refusal of the Army Corps of Engineers to grant a dredging permit, where such refusal was based on the ecological grounds. The permit applicant had argued that the Corps could refuse such a permit only where the dredging would represent an obstruction to navigation. The court rejected this contention, basing its conclusion in part on NEPA. The Zabel case, it has been stated, indicates that "NEPA serves to aid Federal agencies which, in the absence of NEPA might be forced to operate under mandates arguably incompatible with environmentally responsible decision-making."

While the result in Zabel v. Tabb appears correct, I am not certain that any agency which presently has statutory authority to exercise some measure of discretion in a matter involving private rights or interests is now empowered to consider environmental factors as well as those factors relevant under the agency's basic statute. Ordinarily, when an agency receives a grant of discretionary authority, that discretion is to be exercised within certain limits and for the accomplishment of certain statutory purposes. These limitations on agency action provide a focus for agency programs and a check of arbitrariness. They should not lightly be set aside or diluted.

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Let me take an extreme example. Under the Securities Act of 1933, most investment securities may not be sold to the general public until a registration statement conforming to the requirements of the Act is filed with the SEC and in effect. A registration statement takes effect twenty days after filing, but the Commission may, in its discretion accelerate the effective date, and ordinarily

18 See, e.g., Wilderness Society v. Hickel, 325 F. Supp. 422 (D.D.C. 1970) (Interior Department permits for the Alaskan pipeline and its related road haul); Greene County Planning Board v. FPC, 40 U.S.L.W. 2521 (2d Cir. Jan. 17, 1972) (FPC certificate for construction of an electric transmission line).

19 In New York City v. United States. 40 U.S.L.W. 2474 (E.D.N.Y., January 20, 1972) (three-judge court), Judge Friendly held that the ICC erred in failing to prepare an environmental statement in connection with the abandonment of 1.8 miles of a terminal rail line in the New York City area, since abandonment of the rail line would affect the environment by increasing truck traffic. The same or similar arguments are applicable to many licensing and rate proceedings in transportation agencies. One recent decision. however, holds that a decision allowing a rate to go into effect without suspension and investigation is not subject to the NEPA requirement. Port of New York Authority v. United States, 29 P & F Ad.L.2d Temp. Transf. Binder 1128 (2d Cir. 1971).

20 Cohen v. Price Commission. 40 U.S.L.W. 2470 (S.D.N.Y. Jan. 24, 1972). The case arose on a motion for a preliminary injunction against a fare increase, and thus the opinion does not constitute a final determination on the applicability of NEPA to the Price Commission; however, the language and reasoning of the court's opinion strongly point to the conclusion that NEPA is inapplicable. 21 Citizens for Reid State Park v. Laird. Civ. No. 13-18 (D. Me. Jan. 21. 1972). The Defense Department in this case made elaborate preparations for the landing exercise and the agreement with park authorities reflected environmental concerns, including a requirement that vehicles would be confined to existing roads. John Nolan has wryly commented that, if the arrangements had provided for a smaller complement of chemical toilets, the decision might well have gone the other way.

22 430 F. 2d 199 (5th Cir 1970).

F. Supp.

23 Remarks of Timothy B. Atkeson, General Counsel of the Council on Environmental Quality. reprinted at 118 Cong. Rec. E1626, 1627 (Feb. 24, 1972).

24 15 U.S.C. § 77a et seq.

does so where it is satisfied that the statement affords adequate disclosure to prospective investors. The dynamics of the securities market are such that a failure to obtain acceleration is quite likely to frustrate the entire transaction. Does NEPA permit or require the SEC, in deciding whether or not to grant acceleration to a corporation's proposal to sell stock to finance expansion, to take into account the environmental effects of the issuer's plans for expansion? Or, to give another example, may the Internal Revenue Service refuse to give a tax ruling on a proposed transaction on the ground that the transaction will have adverse environmental effects? If the Service refuses to give the ruling, the transaction may be abandoned as too risky. And nothing in the Internal Revenue Code purports to distinguish between taxpayers on this basis.

NEPA, in my view, is not directed at these situations. It should not be interpreted as granting to every Federal agency a roving commission to defend the environment wherever its writ runs and irrespective of the nature of the subject matter before it.

Some distinctions are necessary. One of the difficulties in dealing with NEPA is that it appears to have been drafted to deal with one type of administrative decision, the big Federal or Federally-financed project, where the Government's discretion to go forward or to refrain from doing so is substantially unlimited. It should be applied with caution to governmental programs which regulate what are essentially private activities. Government, of course, cannot be indifferent to the environmental effects of private action. Regulation of such action, however, is best accomplished by agencies specifically empowered to do so on a general basis and not through a hit-or-miss system in which agencies impose conditions or restrictions extraneous to the statutory programs they are charged with administering.

3. Legislative proposals. It is paradoxical that the environmental impact statement has had virtually no effect as yet on the legislative process. The noticeand-comment procedures envisioned by NEPA seem peculiarly well-adapted to public airing and discussion of issues raised by major legislative proposals. And Congress is much less restricted than particular agencies in the alternatives that it can consider and act upon. Yet fewer than 50 environmental impact statements have been filed in connection with legislative proposals, and more than one-half of that number have involved recent Administration proposals to improve the evironment "-a category of legislation that is hardly the central concern of NEPA. Surely among the thousands of bills introduced in Congress and the hundreds enacted during the last two years, there have been a great many which would have substantial or adverse effects on the environment. One reaches the reluctant conclusion that NEPA has been virtually a dead letter in this respect. Congressional committees appear to be considering and enacting legislation even though Federal agencies have not prepared and filed the required statements. The failure of Congress to observe the NEPA requirement where its own affairs are involved cannot but give comfort to those agency officials who are disciplined to take NEPA seriously.

The problem with respect to NEPA's application to legislative proposals, of course, is the unavailability of an effective enforcement mechanism. The broadened scope of judicial review at the behest of the citizen group has been accepted as a matter of course where agency action is under attack; but no court to date has had the temerity to enjoin the effectiveness of legislation as to which an environmental impact statement was not filed or to enjoin Congress from considering a bill when the NEPA requirement has not been met. Nor is any court likely to do so. Only Congress can enforce NEPA's application to legislative proposals." 4. Actions subject to rulemaking procedures.-Thus the major effect of NEPA thus far has been on (1) administrative actions which are required to be carried

25 15 U.S.C. § 77 (h); 17 C.F.R. 202.3.

28 Information supplied by the staff of the Council on Environmental Quality.

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27 The Senate Committee on Public Works, apparently alone among congressional committees, has adopted a rule that it will not consider a legislative proposal as to which an environmental statement has not been filed. Environmental Defense Fund v. TVA, 3 E.R.C. 1553 (E.D. Tenn. 1972), indicates that continuing projects may run into NEPA difficulties despite longstanding congressional support. In this case the TVA was enjoined from completing the Tellico Dam project for which Congress appropriated funds in 1966 and which had been under construction since early 1967.

Another relevant case, Scientists' Institute for Public Information v. AEC, No. 1029-71 (D.D.C., filed May 25, 1971), is currently pending. Plaintiffs are seeking to compel the AEC to file an environmental impact statement in connection with its request for congressional authorization and appropriation for the development of the liquid-metal fast breeder reactor as a source of electric power. See 1 E.L.R. 65153-54.

under the "rulemaking" or "adjudication" provisions of the Administrative Procedure Act 28 and (2) informal administrative actions which are not subject to these provisions of the APA.

The effect of NEPA in opening up to public scrutiny many informal administrative functions which previously were not subject to any procedural requirements has already been referred to. Essentially the Act imposes a notice-and-comment rulemaking procedure on informal administrative actions whatever their quality or character. Although there are serious uncertainties concerning whether or not an action is subject to the NEPA requirement, and, if so, what the statement must include, the simple notice-and-comment procedure of the kind envisioned by the CEQ guidelines may be applied without undue strain to informal administrative actions. Similarly, there is no difficulty in conforming to the notice-andcomment procedures provided for under NEPA actions subject to the noticeand-comment rulemaking procedures of the Administrative Procedure Act. The similar functions of public notice and consideration of comments may be done simultaneously under both enactments.

5. Decisions made after a trial-type hearing.-The application of NEPA, however, to administrative decisions which are required to be made on the basis of a record (whether "rulemaking" or "adjudication" as defined in the Administrative Procedure Act) raises more serious questions in large part because the bare statutory language of NEPA to the effect that the environmental impact statement "shall accompany the [agency's] proposal through the existing agency review processes" fails to reflect the variety and complexity of trial-type proceedings. Three recent circuit court opinions-Calvert Cliffs Coordinating Committee v. AEC," Natural Resources Defense Council v. Morton, and Greene County Planning Board v. FPC "-when read in combination, suggest the possibility of a hair-splitting literalism in applying NEPA which is reminiscent of the technicalities of common-law pleading. Most of the worrisome language in these opinions is dicta, however, and, hopefully, will not be applied in cases involving different situations. But the direction of some judicial thinking is sufficiently troubling to warrant a word of caution.

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Assume that a utility applies to the Federal Power Commission for a certificate to construct an electric transmission line to connect an existing hydroelectric facility with a distribution point. Assume further that the relevant statute requires that the determination be made on the basis of a record only if the FPC staff or an intervenor contests the application; the practice is to grant uncontested applications which, in the view of the staff, conform to existing FPC policies.

The Greene County case, which involved an FPC proceeding for certification of a short transmission line to connect an existing pump storage facility to another part of the utility's distribution system, holds that the agency cannot accept the utility's proposed environmental statement, submited in accordance with agency rules, as the draft environmental statement which must be made available prior to the hearing. The agency staff must draft its own statement wholly apart from whether the issues to be canvassed at the formal hearing are fully revealed in the applicant's statement.

While it may be appropriate to place the burden on an agency or its staff to consider and prepare a final environmental statement of its own, I believe that the question prior to hearing is one of adequate notice to other governmental agencies and potential intervenors. NEPA is not intended to restructure the agency decision-making process. NEPA takes the agency review process as it finds it, and simply requires that the environmental statement accompany the proposal through that process. If that process is one in which the proposal originates outside the agency and in which the staff may assume a neutral posture or even not participate at all—as in many ICC proceedings-why is not a draft statement from the proponent of the action sufficient?

The Calvert Cliffs case, taken in conjunction with Greene County, may be read to suggest that a mandatory hearing must be held in the hypothetical certificate proceeding even though the parties are in full agreement that no issues are presented and there are no intervenors who seek to contest on environmental grounds. Thus Judge Wright's opinion in Calvert Cliffs states that

28 APA, 4 (notice-and-comment rulemaking) and § 5 (adjudication), 5 U.S.C. §§ 553, 554 (1970). 29 449 F. 2d 1109 (D.C. Cir. 1971).

30 40 U.S.L.W. 2497 (D.C. Cir. Jan. 13, 1972). 31 40 U.S.L.W. 2522 (2d Cir. Jan. 17, 1972).

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