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There is also a table which shows the breakdown by agency, and you
will notice, picking out the larger numerical indicators, that airports,
for example, represent a very large number of impact statements.

Likewise highway projects represent the largest number by far.
From the Department of Agriculture in particular, watershed pro-
tection and flood control, it is some 229.

I would suppose the Department of Transportation and the Corps
of Engineers numerically represent the two largest contributors of
102's.

I will submit this for inclusion in the record, Mr. Chairman.

Senator BAKER. Without objection, the information will be made a
part of the record.

(The tables referred to follow :)

SUMMARY OF 102 STATEMENTS FILED WITH THE CEQ THROUGH JAN. 31, 1972 (BY PROJECT TYPE)

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! Statements for actions on which no final statements have yet been filed.
Statements on legislation and actions.

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Actions on which final or draft statements for Federal actions have been taken.

SUMMARY OF 102 STATEMENTS FILED WITH THE CEQ THROUGH JAN. 31, 1972 (BY AGENCY)

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2 102's on legislation and actions.

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1,286

1, 102

2,388

3 Actions on which final or draft 102 statements for Federal actions have been received.

Senator BAKER. I will not interrupt you any longer except to ask you one further question, and that is whether or not you have any further tabulation according to the size of the projects, such as by investment or the like?

Dr. TRAIN. I do not know of such a tabulation, Mr. Chairman. Senator BAKER. Thank you very much.

Dr. TRAIN. About half come from DOT-principally on airports and highways. The next largest groups are those on water resource projects-about a fourth of the total-and power-about 100

actions.

The general quality of these statements has steadily improved.

The Council's objectives in the review of 102 statements are principally three:

(1) To check agency compliance with NEPA and the Council's guide lines:

(2) To identify environmental problem areas where some general reform via executive order or legislation would be desirable; and

(3) To monitor important and highly significant actions via the 102 process.

The Council's objective, which is supported by the language and legislative history of NEPA, is to bring the NEPA process in agency decisionmaking as close to a self-operative procedure as possible.

If an assessment of environmental impacts is available to the decisionmakers in a timely and intelligible form, if there is ample public notice and opportunity for comment or hearings, and if the expert Federal, State and local commenting agencies do their job, there should be little need for CEQ intervention in most cases.

While the Council recognizes that we have not reached this ideal state of affairs and that the quality of agency performance varies, its objective is to build up the environmental judgment of the agencies rather than to substitute its own.

We share with the Administrative Conference of the United States the view that the addition of NEPA in the Federal agency decisionmaking process has had the following five great merits:

1. NEPA, as the President recognized by making its signing his first official act of the decade of the 1970's, is an important step in a national reordering of priorities.

Section 102 (1) states that:

To the fullest extent possible * * * 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.

This means that all Federal agencies in exercising their responsibilities have authority to give positive protection to the environment in their programs.

The leading decision on this point, Zabel v. Tabb, 430 F. 2d 199 (5th Cir. 1970), held that NEPA, together with the Fish and Wildlife Coordination Act, enables the Corps of Engineers, for example, to apply environmental considerations in the grant or denial of dredge and fill permits.

2. NEPA, together with Executive Order 11514 and the Council's guidelines, requires an airing of the issues involved in Government decisionmaking when the environment is involved.

Formerly closed informal administrative procedures are now opened to public view and to comment by relevant Federal and State expertise and by the public.

This is particularly significant and useful for decisions about the public domain.

3. NEPA, together with the Council's guidelines, tends to force agencies to articulate their decisions and the grounds for their deci

sions.

The result of the requirement to assess environmental impacts, analyze alternatives and seek comments can only be more informed decisionmaking.

4. NEPA is requiring the agencies to develop in-house expertise in varied disciplines. To prepare the statements and make the underlying assessments, agencies are being forced to acquire new personnel with training in environmental sciences.

As a result, the agencies will in time develop institutional viewpoints more sympathetic to environmental, as opposed to purely programmatic, values.

5. NEPA carries with it court enforceability of its requirements. This means that it cannot be ignored and that top level agency management must take a fresh look at ongoing policies and programs in terms of their environmental impacts.

This has some very positive advantages for agency leadership that is seeking to revitalize and reshape agency thinking and performance. At the Council we have found that the environmental policies of NEPA provide a flexible and far-reaching means of reviewing Govern

ment decisionmaking as we put together packages of legislation and administrative action for the President's environmental messages.

We have reexamined tax policy, energy policy, land use questions, pollution controls, transportation policies and recreation issues, all under the broad rubric of the "environment."

We see in the Interior Department's proposed new organic legislation for management of the public lands, the AEC's more comprehensive and early review of nuclear powerplants, and the new InteriorHUD-DOT coordination implicit in the President's revised State land use policy bill the translation of NEPA policies into better management.

NEPA can be used to upgrade the quality of analysis of alternatives, consultation and decisionmaking.

In short, we believe smart agency leadership should see NEPA as an opportunity rather than a stumbling block.

Having mentioned court enforceability of NEPA, I will give you some comments on this important aspect of the act:

As of February 15, we had identified 17 court of appeals decisions and over 50 district court decisions applying NEPA, with new decisions being received at least once a week.

I am offering citations to, and brief summaries of, these decisions for insertion in your record.*

Senator BAKER. Without objection, they will be made a part of the record.

Dr. TRAIN. Overall we have identified about 160 NEPA cases in the following categories: 43 against DOT, 34 against the Corps, eight against the rest of DOD, 17 against Interior, 15 against USDA, 13 against AEC, nine against HUD, and the remainder against a scattering of agencies.

As an indication of the extent to which judicial decisions under NEPA are blocking or delaying agency action, however, the number of suits filed can be misleading.

For example, of all the suits filed under the act, only a small proportion-less than 15 percent-have resulted in Government actions being held up in whole or in part.

Senator BAKER. Dr. Train, let me interrupt you for a moment.
That sentence is subject to more than one interpretation.

That means 15 percent of all orders or 15 percent of the number of suits filed.

Dr. TRAIN. I believe quite clearly it intends to refer to 15 percent of all suits filed.

Senator BAKER. So it would not necessarily mean that 15 percent of all suits filed result in some stop action, but rather 15 percent to date?

Dr. TRAIN. That is correct.

Senator BAKER. Thank you.

Dr. TRAIN. Even in these instances, the court has ordered only a temporary halt-pending either trial, preparation of a 102 statement, or revision of agency NEPA procedures.

The projects and agencies involved are listed in an insert I am offering for the record.

4 See app. 4, p 73.

Senator BAKER. Without objection, it will be made a part of the record.

(The material referred to follows:)

LIST OF AGENCY PROCEDURES PUBLISHED IN FEDERAL REGISTER AS OF MARCH 1, 1972 (Agencies Listed by Roman Numeral, Bureaus by Arabic Number)

I-DEPARTMENT OF AGRICULTURE—DECEMBER 11, 1971; 36 FED. REG. 23667-23669

1. Forest Service-December 11, 1971; 36 Fed. Reg. 23669-23672

2. Rural Electrification Administration—December 11, 1971; 36 Fed. Reg. 23672– 23674

3. Soil Conservation Service-December 11, 1971; 36 Fed. Reg. 23674–23676

4. Appalachian Regional Commission-December 11, 1971; 36 Fed. Reg. 23676 5. Atomic Energy Commission—

Regulatory activities-September 9, 1971; 36 Fed. Reg. 18071-18076
Supplement, 36 Fed. Reg. 22851-22854 (December 1, 1971)
Nonregulatory activities-July 16, 1971; 36 Fed. Reg. 13233–13235

6. Canal Zone Government-December 11, 1971; 36 Fed. Reg. 23676

7. Civil Aeronautics Board-July 1, 1971; 36 Fed. Reg. 12513–12515

8. Delaware River Basin Commission-October 21, 1971; 36 Fed. Reg. 2038120382

II-DEPARTMENT OF COMMERCE-NOVEMBER 6, 1971; 36 FED. REG. 21368-21370

III-DEPARTMENT OF DEFENSE-AUGUST 18, 1971; 36 FED. REG. 15750-15754

ARMY CORPS OF ENGINEERS-JUNE 11, 1971; 36 FED. REG. 11309-11318 IV-DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE-DECEMBER 11, 1971; 36 FED. REG. 23676-23679

V-DEPARTMENT OF THE INTERIOR-OCTOBER 2, 1971; 36 FED. REG. 19343-19347 9. Bureau of Mines-February 9, 1972; 37 Fed. Reg. 2895-2897

10. Bureau of Reclamation-January 25, 1972; 37 Fed. Reg. 1126-1129

11. Office of Coal Research-January 28, 1972; 37 Fed. Reg. 1414

12. Office of Saline Water-January 13, 1972; 37 Fed. Reg. 545

13. U.S. Geological Survey-January 7, 1972; 37 Fed. Reg. 233

14. Department of Justice-Law Enforcement Assistance Administration-October 21, 1971; 36 Fed. Reg. 20613–20617

VI-DEPARTMENT OF STATE-FEBRUARY 16, 1972; 37 FED. REG. 3448-3450 VII-DEPARTMENT OF TRANSPORTATION-DECEMBER 11, 1971; 36 FED. REG. 23679-23681 15. Coast Guard-December 11, 1971; 36 Fed. Reg. 23682–23686

16. Federal Aviation Administration-Airport Development Aid Program Procedures-December 11, 1971; 36 Fed. Reg. 23686-23696

17. Federal Highway Administration-December 11, 1971; 36 Fed.. Reg. 2369623702 18. Environmental Protection Agency-January 20, 1972; 37 Fed. Reg. 879-884 19. Federal Power Commission-December 15, 1970; 35 Fed. Reg. 18958-18960 Amendments dated April 16, 1971; 36 Fed. Reg. 7232-7233, November 30, 1971, 36 Fed. Reg. 22738-22741

20. Federal Trade Commission-December 1, 1971; 36 Fed. Reg. 22814-22815 21. General Services Administration—

Federal Supply Service-December 11, 1971; 36 Fed. Reg. 23702–23704

Property Management and Disposal Service—December 11, 1971; 36 Fed. Reg. 23704-23723

Public Buildings Service-September 15, 1971; 36 Fed. Reg. 23336-23338, 2365223654

Transportation and Communication Service-June 30, 1971; 36 Fed. Reg. 2327423275

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