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22. Interstate Commerce Commission-May 26, 1971; 36 Fed. Reg. 10807-10810 23. National Aeronautics and Space Administration-October 31, 1971; 36 Fed. Reg. 21753-21755

24. National Capital Planning Commission-December 11, 1971; 36 Fed. Reg. 23706-23708

25. National Science Foundation-December 11, 1971; 36 Fed. Reg. 23709-23710 26. Office of Management and Budget-December 11, 1971; 36 Fed. Reg. 2371023711 27. Tennessee Valley Authority-November 2, 1971; 36 Fed. Reg. 21010-21014 VIII-DEPARTMENT OF THE TREASURY-JULY 13, 1971; 36 FED. REG. 14221-14222 28. Internal Revenue Service-August 12, 1971; 36 Fed. Reg. 15061-15062 29. U.S. Postal Service-December 28, 1971; 36 Fed. Reg. 25049-25050 30. Water Resources Council-December 11, 1971; 36 Fed. Reg. 23711-23712 Dr. TRAIN. With respect to reported opinions construing NEPA, most courts have a liberal view of NEPA in accordance with the broad policies expressed in the act, while at the same time adhering to well-established doctrines limiting the scope of judicial review of agency decisions.

There has as yet been no Supreme Court opinion construing NEPA, although it has received mention in a number of opinions.

Courts are giving close attention to insuring that agencies follow the procedures prescribed in section 102 (2) (C) and other provisions of the act with respect to preparing environmental statements and applying environmental considerations.

The judicial role under NEPA thus appears to be in line with the traditional one of insuring that governmental process prescribed by statute is working correctly without attempting to second guess the actual agency decision as to the proper balance to strike between environmental concerns and other national goals.

Senator BAKER. I will interrupt one more time, Dr. Train.

You may cover it later in your testimony, but might I inquire if you have a view with respect to the question of whether or not the agencies are required to make determinations beyond the scope of their own primary jurisdiction?

I am referring to cases such as the Calvert Cliffs case, and the question of whether or not thermal effluent standards must be determined separately by AEC, or whether AEC may rely upon EPA in making its value judgment.

I do not want to pressure you for an answer; if you already have an answer, I will wait for it.

Dr. TRAIN. Perhaps I might comment on it briefly.

I think I do touch on it, but it might be safe to comment on it briefly, and then if you wish to expand at the end, I will be glad to answer any questions.

I think you have asked several questions, one, should an agency under the National Environmental Policy Act look beyond matters over which it itself has jurisdiction, and I think the answer to that is quite clearly "Yes."

In the two broad areas, one, in identifying and analyzing the environmental impact of a proposed action, I think quite clearly an agency must examine and include in its analysis impacts over which other agencies have particular expertise.

I think this is quite clear, for example, to be specific, the Corps of Engineers should look to the Department of the Interior, and in particular, Fish and Wildlife for comment on impact upon aquatic life from a given project.

The statute clearly contemplates this in section 102 where it requires that a detailed statement must be submitted for comment to all other Federal agencies with either jurisdiction, or expertise in the subject matter, so I think that is implicit in that aspect.

Secondly

Senator BAKER. Could I interrupt you before you go to number two? As an extension of that, in the examples you make, would it be necessary for the Corps of Engineers to go behind the determinations as to aquatic life conditions of Interior, to decide whether those are valid or not?

Dr. TRAIN. I think the agency that is the project initiator does have overall responsibility for laying all of the factors involved out, and to increase itself in its own responsibility in arriving at an overall decision.

Now, I do not think in the general case that this can be or should be abbrogated now in special situations.

The question arises, and I do discuss this at some length later on, under the relationship between water quality standards, and the responsibilities of the Environmental Protection Agency, and the applicable State agency, and their relationship to the Atomic Energy Commission's responsibility with respect to nuclear powerplant licenses, and I do go into that in some detail, Senator Baker.

Senator BAKER. I will not press any further on that subject, except to try to restate my question, and then you can refer to it later.

What I really am after is some expression of opinion on whether or not, in the example you gave of the Corps of Engineers seeking expert advice from Interior on conditions of aquatic life, and so forth, whether or not the Corps of Engineers is required to develop expertise on aquatic life separately from Interior, or whether it can accept Interior's determination without going behind it in making NEPA's judgment.

Dr. TRAIN. The statute does speak of the need for agencies to develop an interdisciplinary competence.

I am speaking very broadly. That is adequate for my purpose, so I think that there is contemplated that an agency that has a number of decisions it must make, involving ecological impact, for example, should develop some ability of an interdisciplinary measure to deal with that, but I do not believe the statute contemplates the duplication of expertise within the Federal Government.

Obviously we would end up with every agency having to maintain a scientific staff that would duplicate every other agency, and I do not think anyone contemplates this, so, necessarily, I think it is implicit that in general there should be an ability on the part of the originating agency to accept, unless there is clear evidence of abuse of discretion, or something of that sort, the recommendation of the expert agency, but with all that, I still say that the responsible program agency cannot abrogate its overall responsibility to weigh all factors involved in reaching its decision.

Senator BAKER. If I may try to paraphrase your very fine response, what I understood you to say was that while an agency may not rely blindly on the determination of a sister agency on a particular point, that it need not staff up to an equal competence with its staff agency in a more specialized field, and the requirement of NEPA is that the responsible agency develop sufficient expertise to intelligently appraise the competency of a sister agency, but not in detail.

Dr. TRAIN. I think you have made an excellent and clear statement, and I agree with it.

To expand on another aspect of your question, with respect to the responsibility of an agency to examine alternatives to a proposed action, it is clearly the view of the Council that this responsibility is not limited simply to alternatives which might happen to be within the jurisdiction of the agency itself.

We believe that the act is a national environmental policy act, and that Congress contemplated the development of a decisionmaking process, which would permit the laying and consideration of all sig nificant relevant factors, not only for the benefit of a particular agency involved in its decisionmaking, but for the guidance of the executive branch itself, and specifically the President, in the exercise of his overall executive responsibilities, and of the Congress, whose responsibilities clearly are not limited to specific compartments of a mission-oriented nature.

Now I think I will go on.

Senator BAKER. Very well.

Dr. TRAIN. We have attempted to analyze-I might say that that position that I have just outlined, I believe, is essentially the position taken by the court in the offshore leasing case which you referred to in your opening remarks, at least one of the points.

Senator BAKER. May I interrupt, imposing on my colleagues on the committee, the offshore case also suggests another problem we have not discussed, and that is whether or not there is the authority, or even the responsibility of a responsible agency to recommend alternative actions beyond the scope of its jurisdiction, such as an alternative to drilling offshore, and changing oil imports, for instance, import quotas, and if you do not mind, we will reserve some questions for that a little later, but I think it is part of the same stem, as far as I am concerned, it is not fully spelled out in NEPA, and needs to be clarified in these hearings.

Dr. TRAIN. We have attempted to analyze the significant general NEPA issues handled to date by the courts and they seem to be as follows:

(a) The applicability of NEPA to Federal actions initiated prior to NEPA. Here the leading opinions among the circuit courts are Calvert Cliffs Coordinating Com. v. AEC, 449 F. 2d 1109, 2 E.R.C. 1779 (D.C. Cir. 1971), Penna. Environmental Council v. Barrett, 3 E.R.C. 1421 (3d Cir. 1971), and Greene County Planning Board v. FPC, 3 E.R.C. 1595 (2d Cir., January 17, 1972).

There are at least a half dozen district court opinions. We believe that these opinions sustain the position taken in section 11 of the Council's guidelines-that with respect to projects or programs initiated prior to January 1, 1970, where it is not practicable to reassess the basic

course of action, it is still important that, by doing an environmental impact statement, further incremental major actions be shaped so as to minimize adverse environmental consequences.

(b) Interpreting the key phrases "major" (action) and "significant" (as in "significantly affecting the quality of the human environment"). To date there have been few cases directly relevant to these problems of interpretation.

Our aim is to give greater precision to these concepts via the CEQ guidelines and more particularly, with respect to individual agency programs, through the agency NEPA procedures.

As you know, these agency procedures are published in the Federal Register, and we have invited comment.

Increasingly we would expect the courts to apply the rule that "such administrative interpretation cannot be ignored except for the strongest reasons, particularly where the interpretation is a construction of the statute by the men designated by the statute to put it into effect." EDF v. TVA, 3 E.R.C. 1553 (E.D. Tenn., Jan. 1972).

Indeed, a very well-reasoned opinion of Judge Gignoux has just followed this approach in upholding a Department of Defense determination that no impact statement was needed on a proposed action. Citizens for Reid State Park v. Laird, 3 E.R.C. 1580 (D. Me. Jan. 21, 1972).

I might quote from that particular opinion, where the judge stated that the statutory language "significantly affecting the quality of human environment" is extremely broad and not susceptible of precise definition.

(c) Preparation and content of environmental statements. Three of the most important NEPA decisions to date are the decisions of the Court of Appeals for the District of Columbia in Calvert Cliffs Coordinating Committee v. AEC, 449 F. 2d 1109, 2 E.R.C. 1779 (D. C. Cir. 1971), Committee for Nuclear Responsibility v. Seaborg, 3 E.R.C. 1127 (D. C. Cir. 1971), and Natural Resources Defense Council v. Morton (D. C. Cir. Jan. 13, 1972).

Each of those opinions discusses in some detail the function which the 102(2) (C) statement should fulfill and the considerations which should go into preparation of such statements.

Each of these opinions reaffirm the view that NEPA, at the very least, is a "full disclosure law," requiring conscientious attention to "all known possible environmental consequences of proposed agency action."

Environmental Defense Fund v. Corps of Engineers, 2 E.R.C. 1260, 1267 (E.D. Ark. 1971).

In this respect, these decisions make clear that NEPA only requires what should already be implicit in the notion of responsible decisionmaking.

Decisions which ignore adverse environmental effects of proposed actions are excluding relevant costs and disadvantages which can only make them less than fully responsible choices.

(d). Citizen participation in NEPA. Although the National Environmental Policy Act does not explicity refer to securing public participation in the agency's environmental assessments, Executive Order 11514 suggests that agencies develop "procedures to ensure the fullest

practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties."

Provisions in the CEQ guidelines for draft and final environmental statements, and for making such statements available for public comment reflect this concern for public involvement, as do judicial opinions upholding citizen standing to bring suit under NEPA.

At this point I would like to add a quotation from the President's transmittal of the CEQ second annual report, when he stated:

The National Environmental Policy Act has given a new dimension to citizen participation, and citizen right as is evidenced by the numerous court actions through which individuals and groups have made their voices heard. Although these court actions demonstrate citizen interest and concern, they do not in themselves represent a complete strategy for assuring compliance with the Act. We must also work to make Government more responsive to public views at every stage of the decision-making process. Full and timely public disclosure of environmental impact statements is an essential part of this important effort.

That concludes the quotation of the President's transmittal. The court of appeals for the second circuit has recently stressed the importance of ensuring that environmental statements are made available for-and ultimately take into account-examination and comment by interested members of the public. See Greene County Planning Board v. FPC, 3 E.R.C. 1595 (2d Cir., Jan. 17, 1972).

This decision, however, also draws attention to the fact that liberal provision for citizen participation in agency decisions under NEPA carries with it corresponding obligations for citizen adherence to established agency review procedures.

Other courts have similarly indicated that citizens who have actual notice of agency procedures designed to secure public participation in the decisionmaking process, and who fail to take advantage of such procedures, should not later be able to challenge the agency action in a judicial proceeding. See Sierra Club v. Hardin, 2 E.R.C. 1385, 1396–97 (D. Alaska, 1971).

By combining these doctrines of "laches" and "exhaustion of administrative remedies" with broad opportunity for public participation in the agency's environmental assessments, courts are helping to ensure that the agency decisionmaking process is both responsive to the public and at the same time not subjected to undue and untimely delay.

From what I have said it should be clear that, by and large, we think the courts have been doing a sound job in applying NEPÄ.

Where there have been difficulties it has usually been the case that a guideline of the Council or an agency procedure grounded in NEPA's legislative history has been challenged or ignored by a court. This was true in the Calvert Cliffs case with respect to AEC's treatment of water quality agency certification of water quality issues, and in the Kalur case which required that environmental impact statements be done on environmental protective regulatory actions concurred in by EPA, such as the Refuse Act permit program.

In the Quad Cities case the court was unwilling to permit AEC
interim partial licensing of nuclear plants started prior to NEPA
pending completion of the NEPA review.

We regarded AEC's treatment of this problem in its post-Calvert
Cliffs regulations as a reasonable transitional arrangement in accord-

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