view. The decision was handed down on December 13, 1971. The AEC completed the environmental review on 20 percent interim operation on January 24, 1972, and announced that, but for the injunction, it would issue the interim license for operation up to that level. A copy of the supporting documents is submitted for the record.' The Commission immediately requested the Justice Department to appeal. At the moment, a fully constructed large-scale generating facility stands idle, the halt primarily based on affidavits from which it is learned at most that, at 50 percent operation of the Quad Cities facility-a level of operation which the AEC has not in fact authorized the reproductive habits of certain species of fish in a limited portion of the river, some 4,000 feet, might be adversely affected. At the same time, the Federal Power Commission has stated that the plant is urgently needed in at least standby readiness to provide required power supply margins in the Midwest this summer. This urgent need, together with the environmental advantages of allowing interim operation of the Quad Cities units so as, among other things, to allow retirement of polluting overage fossil units, was recognized, by the Illinois Pollution Control Board in a decision authorizing interim operation of the Quad Cities station under a variance from State thermal discharge regulations. While we are hopeful the case will be reversed by the circuit court of appeals, the uncertainty of judicial result in this area has led us to prepare legislation to accommodate the situation, as a hedge against the possibility of an adverse decision. Let me repeat the problem here seems to be an overemphasis on procedure with little regard for the substantive issues involved. The full NEPA statement designed to appraise the full-power effect of a plant over a number of years would not seem to be a necessary prerequisite for a much shorter period of plant testing possibly culminating in less than full-power operation, the whole of which will last but a few months. Particularly is this so when a finding of no irreversible effects is made, when there is a strong public need, and when an environmental review coextensive with the action sought to be taken is performed. In view of the shortness of time, let me move rather more quickly and mention several other areas that may ultimately be worthy of congressional attention in respect to NEPA. CUMULATIVE ENVIRONMENTAL SURVEYS The possible desirability of an environmental survey is a product of the limitations of the present single-purpose statement. Such a survey contemplates the assessment of collective effects of a series of individual actions. One example occurs with the hypothetical siting of powerplants around or along a body of water, or in a discrete geographical area, such as a valley or demographic unit. There is a logical argument that can be made for an overall assessment of multiple-site environment impact that would allow overall cost-benefit assessment of a multiple-facility situation. The enormity of the task of preparing such a statement under NEPA as presently constituted sug 1 The document referred to appears on p. 133. gests that a more generalized formal procedure-a survey rather than a statement-might be the better solution to broad-gage evaluations of regional considerations and an aid to defining a more workable scope for individual environmental statements. RESEARCH AND DEVELOPMENT ASSESSMENTS Another area of present uncertainty involves the rationalizing of the 102 statement and agency actions which essentially constitute or involve research and development. R. & D. by its very nature implies that there are uncertainties and unknowns. Continuing efforts and projects are designed to clarify and to provide answers for these uncertainties and unknowns. In such a situation, the procedural exigencies of the 102 environmental statement, together with the receptively simple appearing five-point requirement for the contents of the statement, allow the implication-readily picked up by zealous litigants, not to mention ordinary citizens and other Federal agencies-that the R. & D. project should not begin until the statement can be made to contain the very answers which the R. & D. effort is seeking. While some of these assertions are freighted in efforts to halt continuation of a whole area of technological development, the fact remains that there is no present guidance to shape the scope of the statement and the degree of precision and future reach required in areas of rapidly developing technology. The present controversy-including a pending lawsuit-surrounding the proper scope of a NEPA impact statement for the LMFBR demonstration plant is illustrative of this problem. One unique feature in dealing with AEC operating programs in relation to NEPA occurs as a part of the Federal Government budget process. In order to obtain necessary funds to initiate the design for a new facility the AEC is required to prepare a NEPA impact statement in those cases where there is potential for a significant impact on the environment. Yet, until these initial funds are obtained and the design of the facility is well along, it is only possible to deal in generalities in describing the environmental impact of the proposed new facility. It may well be that a less strictly proceduralized approach to environmental considerations of this kind will be required to deal with areas of development where action and decision must be based on expert judgment and scientific prediction-mere human capabilities— instead of empirical fact and experience. I might point out that the extent of our research into a number of environmental effects, and development of means to cope with them, are included in this appraisal. Admittedly, lack of precise knowledge, or acceptance of opinion or projection, involves a degree of risk; and risk should be minimized. However, we cannot, in the name of the environment, afford the luxury of acceptance only of risk-free ventures—if there be any such. Assessment of allowable levels of risk is more amenable to legislative or executive rather than to judicial decisionmaking, it is less susceptible to the sort of quantification presently required by NEPA, and thus may be more appropriately the subject of "survey” rather than "statement" treatment. NEPA AND THE ADMINISTRATIVE PROCESS As earlier noted, AEC licensing activity consists of two steps, each of which presents an opportunity for a comprehensive degree of public participation in reviewing the application. The extent of contest in terms of number of cases and protraction within each case was already of concern prior to NEPA. As to the potential for adversary inquiry in the post-NEPA period, one need only examine a representative impact statement for a nuclear plant. For illustrative purposes, I have supplied for the record a copy of the draft detailed environmental statement for one such plant. I know of no other agency where NEPA evaluation is subject to such fullsome public adversary review. The AEC is working with the Administrative Conference to examine alternative procedural ways in which public participation in the licensing process may be conducted. The opportunities for unending litigation by those who have no or little obligation to make the system work can readily be seen from the scope of the NEPA impact statement which I have furnished for the record. Whether the public interest and congressional intent can best be served by a less microscopic analysis remains to be seen in the course of coming months. In the meantime, the requirements in terms of manpower and dollars may be of interest. Over 200 persons within the AEC and its laboratories are engaged in the review, preparation, and processing of environmental statements. A funding level of $5.8 million is required in fiscal year 1972 for implementation of the National Environmental Policy Act as compared to less than $1 million in fiscal year 1971, preCalvert Cliffs. This level of funding must be continued, in fact increased, in fiscal year 1973, if our goal of reducing the backlog to a manageable level is to be attained. The impact in workload can be illustrated by the fact that the manpower effort of about one-half a man-year per case in NEPA review before Calvert Cliffs has increased sixfold at this time. ENVIRONMENTAL JURISDICTION A matter of increasing concern in agencies of Government and to the public is the question of who ultimately will be primarily responsible for environmental evaluation and review. The present state of uncertainty in the reactor licensing area again provides an illustration of problems which may not have surfaced in other areas. In the AEC's case, the problem is manifest in two areas. First, as posed by Kalur v. Resor, is the question of whether or not there should be a lead agency concept in the Federal Government where one agency has acknowledged primacy in environmental evaluations. The enjoining of the Corps of Engineers' Refuse Act discharge permit program by a Federal district court in Kalur could preclude nuclear powerplant operation as—and if the AEC is able to license plants. The court's decision would, in effect, require the Corps of Engineers to prepare an environmental statement under NEPA for each discharge permit. This decision has been appealed by the Government; however, as a means for accommodating the near-term situation, it would seem logical that, after the AEC has gone through the process of compiling detailed statements such as that which I have already put into the 76-248-72——7 record, the Corps of Engineers could act on the basis of the AEC evaluation. By designating the AEC as "lead agency" in respect to nuclear plants, the duplication in at least the nuclear plant area could be eliminated. In any case, aside from the duplication, there is the additional uncertainty as to who will make the final decision, and whether meeting one set of Federal standards should not be enough. A second question arises with regard to the question of whether the States or the Federal Government will have primary or initial environmental jurisdiction. In the AEC's situation, this quandary is illustrated by our consideration of the proper scope of the Baker amendment to the proposed Federal Water Pollution Control Act Amendments of 1972. To the extent that we can see enactment of a powerplant siting regime similar to that inherent in the administration's powerplant siting bill, it is clear that the States ultimately will assume the jurisdiction for overall plant siting and nonradiological environmental review that the Commission presently exercises. On this assumption, an inclusive interpretation of the Baker amendment might seem warranted-the Commission can accept the State water quality certification on its face, and need not thereafter consider water quality questions in the Federal licensing process. Such an interpretation recognizes ultimate State jurisdictional primacy, and anticipates that time when the States will have assumed other environmental responsibilities as well, including air and esthetics. Additionally, this interpretation would appear to have certain salutary forcing characteristics in achieving that end. On the other hand, if in fact the Federal Government through the Commission will retain overall responsibility for plant environmental review, then a more restrictive view of the Baker amendment is appropriate the AEC could not look behind the certification but would be required to factor the result of the State water certification into the overall plant cost-benefit balance. In this second interpretation-which comports with the intent of the proponent of the amendment as expressed on the floor of the Senate-assuming the States acquired other certification powers as to air esthetics and other environmental values, a Federal agency would be required to accept the individual State evaluations without power to change them, yet still would be required to perform a balancing function. Thus, the view one takes of the Baker amendment depends on one's viewpoint of how and when the jurisdictional question will finally be answered. We have had strong indications that environmental groups and other interested public groups are convinced that the Federal Government must maintain the overall balancing of environmental factors on a plant-by-plant basis. I include this in my presentation to indicate this as an area in which the Congress well may be required to lend definition as the overall environmental review process matures. In conclusion, in no way has it been my intention to criticize the handling of NEPA by the courts. NEPA, overall, has resulted in a healthy reorientation of governmental perspectives and priorities; and the courts have in various instances played a useful, even sobering role in this process. What I have suggested is that the vacuum of specific legislative guidance has left the courts with interpretative functions far transcending the norm; and that judicial guidance, by virtue of the very nature of the litigation process, has been essentially happenstance. A significant consequence is that the boundaries of an agency's implementation responsibilities are in some instances no better defined than the conjectured results of the next judicial decision on the matter. In the present status of things, environmentalists and Government. agencies are tempted to take sharply contrasting approaches to the existing situation. The environmentalist, contemplating an action by an agency for which the requirement for an environmental statement exists, attempts, by freedom of information requests, agency administrative action, or by lawsuit, to get the maximum conceivable environmental review of the facility or action. He feels he must attempt to reopen the early beginnings of the facility in order to assess whether a pre-NEPA facility should have been built at all, or a pre-NEPA chain of events should ever have been started. At the same time, he looks toward the future and attempts to require an assessment of every conceivable long-term effect of the contemplated action, suggesting that nothing should be done until all of the developments can be iden tified and evaluated. The agencies of Government may succumb to the temptation to regard the present situation as either temporary or transitional. They may thus be in the unfortunate position of reacting to immediate circumstances without appreciation of a long run, overall procedural strategy for environmental evaluation. While we can all make educated guesses at what the structure of the environmental review process will be in the next few years, there is a growing possibility that, with respect to major and significant Federal actions, we are wasting valuable time and valuable resources if, in fact, we are individually off on the wrong track, or are not proceeding as Congress intended or expects. A congressional legislative strategy that includes throwing the arena open by the broad language of the present statute implies a willingness of Congress to maintain an overview and willingness to assist in the more detailed fashioning of the approach to the environment as the need arises. It is a pleasure for me to attempt to contribute to such efforts. The Calvert Cliffs decision was handed down by the courts in August. On September 9, the AEC promulgated its new regulations which were regarded as stringent by both industry and by environmental groups. There was some concern on the part of industry that the AEC had overreacted to that decision. I think it is a fair statement that most environmental groups were satisfied, and perhaps surprised, by the stringency of those regulations. We thought that we could live with those regulations. It was our intention to make NEPA workable. The problem that we faced at the time was of a number of plants that were caught in the transition, plants that were about to be completed, and for those plants, we established certain special provisos. One proviso permitted the plant to be operated at 20 percent of power, in order to go through testing and startup, so that if there were difficulties in running the plant, those difficulties would be brought out as rapidly as possible. This is a normal procedure in the case of |